Presentation on theme: "FHAP Programmatic Matters Awareness of Potential 1 st Amendment Concerns."— Presentation transcript:
FHAP Programmatic Matters Awareness of Potential 1 st Amendment Concerns
Are there potential 1 st amendment concerns in this complaint? I.My residents were harassed by neighbor June Dance, the most recent incident occurring on May 7, 2010, while residing at my five- bedroom board and care home located at 2984 Border St., City, State. II.I believe that my residents were harassed due to their disability status (mental health conditions). This is a violation of Sections 804(c) and 818 of the Fair Housing Act. My belief is based on the following: A.My residents were harassed by June Dance, the most recent incident occurring on May 7, 2010. The harassment was based on their disability status, and was of a verbal, visual and physical nature. The harassment created a hostile and offensive atmosphere and violated our mission to provide a discrimination-free living environment for our disabled residents.
Are there potential 1 st amendment concerns in this complaint, cont’d? Additional allegations from intake interview with complainant: Respondent has made numerous baseless reports about group home residents to police; Respondent has shouted out threatening statements to residents (e.g., I’ll go back to jail for you.”); Respondent posted signs in her front yard “Sexually inappropriate fire-setter; tax $ at work”
Potential 1 st Amendment Concerns References: Title VIII Investigative Manual (HUD 8024.01), paragraph 5-5. FHEO Notice 2007-01 (incorporated into Investigative Manual, but provides useful additional background) 24 CFR 115.310 (no FHAP funds may be used to investigate or prosecute activities protected by the First Amendment)
Potential 1 st Amendment Concerns 1 st amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Potential 1 st Amendment Concerns “Absent force, physical harm, or a clear threat of force or physical harm to one or more individuals, public speech-related activities directed toward encouraging and/or achieving actions by a Federal, State, or local governmental entity or official—however hostile, offensive, distasteful, obnoxious, reprehensive and/or bigoted in content—must be considered as part of a robust debate of public issues.” (Investigative Manual, 5-5.B)
Potential 1 st Amendment Concerns Examples of protected “public activities” (non-exhaustive): Distributing flyers Organizing neighborhood meetings Writing articles or letters to newspapers Organizing or participating in peaceful demonstrations (including picketing) Testifying & presenting petitions at public hearings Communicating with governmental entity concerning official governmental matters (Investigative Manual, 5.5C)
Potential 1 st Amendment Concerns What’s generally not protected: Commercial speech in a commercial context
Potential 1 st Amendment Concerns Be particularly cautious with: 804( c) allegations (oral or written preference or limitations allegations) 818 allegations (intimidation, coercion, interference allegations) Complaints filed against individuals who do not directly control the contested housing (e.g., neighbors, other tenants)
Potential 1 st Amendment Concerns If concerned about potential 1 st amendment issues: Do not accept complaint for dual-filing Do not send out notification of filing letters Seek out additional information from FHAP partner regarding allegations Notify FHAP partner if you are referring to HQs- FHEO for guidance Make notes in Jurisdiction screen in TEAPOTS
Potential 1 st Amendment Concerns Lessons learned from “Dance” Complaint HUD & FHAP counsel may come to different conclusions regarding potential 1 st amendment issues; Conciliation discussions may not be regarded as confidential if case goes on to litigation. So, be very cautious about communicating complainant’s conciliation goals if those goals could be seen as chilling/limiting 1 st amendment rights; Process expediently.