This Notice extends and updates Notice FHEO 2003-02, same subject, which
expires on April 30, 2004. The update consists of a new contact person
and contact telephone. This Notice makes no substantive changes to the
policy set forth in FHEO Notice 97-1 which FHEO 2003-02 extended.

This Notice sets forth specific substantive and procedural restrictions
regarding the filing and investigation by the Department of complaints
under the Fair Housing Act (the Act) that may involve issues relating to
the protections guaranteed by the First Amendment to the United States
Constitution.[^1]

2

It provides guidance to field and Headquarters staff concerning the
appropriate handling of any matter involving third parties, such as
neighbors who are not directly participating in real estate
transactions, who are alleged to have violated Section 818 of the Act,
which makes it unlawful to \"coerce, intimidate, threaten, or interfere
with any person in the exercise or enjoyment\" of rights under the Act.

Absent force, physical harm, or a clear threat of force or physical harm
to one or more individuals,[^2] public activities directed toward
achieving action by a governmental entity or official \-- even where
hostile, distasteful, and/or bigoted \-- can be part of a robust
discussion of public issues. Activities to urge governmental action are
an essential part of a constitutional democracy.

Thus, this Department will not accept for filing or investigate any
complaint under Section 818 that involves public activities that:

-   are directed toward achieving action by a governmental entity or
    official; and

-   do not involve force, physical harm, or a clear threat of force or
    physical harm to one or more individuals.

    Examples of the types of public activities that are \"directed
    toward achieving action by a governmental entity or official\" and
    are covered by these guidelines include:

-   distributing fliers, pamphlets, brochures, posters, or other written
    materials to the public at large;

-   holding open community or neighborhood meetings;

-   writing articles or letters to the editor or making statements in a
    newspaper;

-   conducting peaceful demonstrations;

-   testifying at public hearings; and

    3

-   communicating directly with a governmental entity

    concerning official governmental matters.[^3]

    Moreover, in order to ensure that the Department\'s investigative
    process does not interfere with protected rights under the First
    Amendment, no complaint alleging a violation of Section 818 as
    described above may be filed absent prior formal approval from
    Headquarters.

    Finally, this Notice details a number of procedural safeguards
    designed to insure that, when investigations do proceed, they are
    conducted promptly and in a manner that does not interfere or chill
    in any way the rights of individuals to engage in speech protected
    by the First Amendment.

# [The Law]{.underline} {#the-law .unnumbered}

This Department must always act with great respect for the
constitutional protections embodied in the First Amendment, including
the rights to freedom of speech, press, and religion, and the right to
petition peaceably the government for redress of grievances. Where Fair
Housing Act concerns intersect with

First Amendment protections, the deference required under the First
Amendment to protected activities requires that the Department not
engage in investigation of certain behavior which, although alleged to
be discriminatory, is nonetheless clearly protected by the First
Amendment.

In other cases, when the facts available to the Department do not
reasonably indicate the precise applicability of the First Amendment,
the Department\'s investigations must be prompt and carefully tailored
to be consistent with applicable First Amendment law and must cease
where First Amendment protection is determined to apply. In any case,
increased sensitivity to First Amendment protections must be the
watchword of any investigative activity. The Department must make every
effort to assure that its actions do not unduly chill the exercise of
free speech rights.

It is clear that the Supreme Court has, in the civil rights context,
determined that certain kinds of \"speech\" may constitutionally be
prohibited because the speech is limited as part of a general
prohibition against behavior which amounts to unlawful discrimination or
interference with the exercise of civil rights. [See]{.underline}
[R.A.V. v. City of St. Paul]{.underline}, 112 S. Ct. 2538 (1992);
[Wisconsin v. Mitchell]{.underline}, 113 S. Ct. 2194, 2200 (1993)

4

(citing [Roberts v. United States Jaycees]{.underline}, 468 U.S. 609,
628 (1984); [Hishon v. King & Spalding]{.underline}, 467 U.S. 69, 78
(1984); [Runyon v. McCrary]{.underline}, 427 U.S. 160, 176 (1976)).

The Fair Housing Act, therefore, constitutionally prohibits certain
combinations of speech with behavior and speech itself that rises to the
level of conduct. For example, where third parties, such as neighbors,
engage in behavior, including speech, which is coercive, threatening,
intimidating or harassing, the behavior may violate Section 818 of the
Act. [See]{.underline}, [e.g.]{.underline}, [Sofarelli v. Pinellas
County]{.underline}, 931 F.2d 718 (11th Cir. 1991); [People Helpers
Foundation v. Richmond]{.underline}, 781 F. Supp. 1132 (E.D. Va. 1992);
[HUD v. Johnson]{.underline}, HUDALJ 06-93-1316-8 (HUD Office of Admin.
Law Judges 7-26-94); [HUD v. Williams]{.underline}, 2 Fair Housing-Fair
Lending (Prentice Hall), ¶ 25,007 (HUD Office of Admin. Law Judges
2-18-93); [HUD v. Weber]{.underline}, 2 Fair Housing-Fair Lending
(Prentice Hall), ¶ 24,041 (HUD Office of Admin. Law Judges 2-18-93).

In order to ensure that First Amendment rights are not chilled, the
steps detailed in this Notice must be followed in any case involving
alleged violations of Section 818 of the Act by third parties not
directly involved in a real estate transaction and which may involve
speech protested by the First Amendment.

# [Complaint Review]{.underline} {#complaint-review .unnumbered}

Allegations that public activities coerced, intimidated, threatened, or
interfered with a person\'s exercise or enjoyment of rights under the
Fair Housing Act [will not be accepted for filing]{.underline} if those
public activities:

-   were directed toward achieving action by a governmental entity or
    official; and

-   did not involve force, physical harm, or the threat of force or
    physical harm to one or more individuals.

    Each case submitted for filing must be reviewed on its own facts.
    Examples of the types of public activities that are \"directed
    toward achieving action by a governmental entity or official\"
    include:

-   distributing fliers, pamphlets, brochures, posters, or other written
    materials to the public at large;

-   holding open community or neighborhood meetings;

-   writing articles or letters to the editor or making statements in a
    newspaper;

    5

-   conducting peaceful demonstrations;[^4]

-   testifying at public hearings; or

-   otherwise communicating with a governmental entity concerning an
    official governmental matter.[^5]

An intemperate and perhaps even hostile statement made at a zoning
hearing that has the effect of making persons protected by the Fair
Housing Act feel unwelcome in a neighborhood will not be sufficient for
filing a complaint or beginning an investigation under the Fair Housing
Act.

Furthermore, in order to assure maximum protection for freedom of
speech, no complaint involving speech under Section 818 may be accepted
for filing absent prior written approval from Headquarters.

# [Cases Involving Frivolous Litigation]{.underline}

Where the action alleged to be discriminatory is the filing or
prosecution of a lawsuit, similar standards will apply. A lawsuit which
is frivolous can be a violation of the Act. [Sofarelli v. Pinellas
County]{.underline}, 931 F.2d 718, 725 (11th Cir. 1991); [Woods-Drake v.
Lundy]{.underline}, 667 F.2d 1198, 1202 (5th Cir. 1982); [Miller v.
Towne Oaks East Apartments]{.underline}, 797 F. Supp. 557, 561-62 (E.D.
Tex. 1992); [U.S. v. Scott]{.underline}, 788 F. Supp. 1555, 1561 (D.
Kan. 1992); [Northside Realty Associates, Inc. v. Chapman]{.underline},
411 F. Supp. 1195, 1199-1200 (N.D. Ga. 1976); [HUD v.
Grappone]{.underline}, 2 Fair Housing-Fair Lending (P-H), Para. 25,059
(HUD Office of Admin. Law Judges 10-1-93); [U.S. v.
Robinson]{.underline}, Civ. No. 3:92CV00345 (D.Conn. Jan. 26, 1995).
Fair Housing-Fair Lending (P-H), Para. 15,881 (D. Conn. 1993)
(Magistrate Judge\'s Opinion).

6

However, given the sensitivity and complexity of the issues relating to
such litigation, all situations involving claims that litigation amounts
to a violation of Section 818 must be cleared with Headquarters before
the complaint is filed.

# [Investigatory Process]{.underline}

To avoid infringing upon protected speech, any investigation which may
be necessary to obtain information about the extent to which the First
Amendment may be applicable should be prompt, narrowly tailored to
gather sufficient preliminary data to allow such a decision to be made,
and conducted in close consultation with counsel. [Headquarters must
concur in the investigative plan for all cases relating to possible
First Amendment issues before the investigation is
conducted]{.underline}.

Where investigation is undertaken, particularly when the speech is
on-going, great care must be taken to avoid chilling the First Amendment
rights of the speakers. Such care must include, at a minimum, conducting
an expedited investigation and avoiding any direct or indirect
interference with any on-going speech. Where possible, investigation of
speech-related activity protected by the First Amendment should be
conducted through public records, such as-transcripts or tapes of
hearings, newspaper records, or interviews of public decision makers,
rather than interviews of the speakers or review of private
correspondence.

# [Production of Documents]{.underline}

In no circumstances should document requests be made or a subpoena be
served or threatened in an effort to acquire membership lists,
fundraising information or financial data of an organization that is or
may be engaging in protected speech activities.

# [Conciliation Efforts]{.underline}

In Section 810(b) of the Fair Housing Act, Congress mandated that
conciliation efforts be made in every case, where feasible, from the
initial date that a complaint is filed. Because the government carries
special responsibilities under the First Amendment that private parties
do not, special sensitivity to constitutional concerns must be
demonstrated in the preparation and transmittal of conciliation
proposals. Under no circumstances should the Department propose or
transmit any proposals that would circumscribe the First Amendment
rights of any party to the complaint.

7

By following these guidelines, the Department can be certain that any
investigations that are conducted will not chill protected political
speech in any manner. Questions regarding this guidance or specific
situations should be addressed to Elizabeth Frank, Acting Director,
Office of Enforcement, at

\(202\) 619-8041, extension 4033.

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> Carolyn Peoples
>
> Assistant Secretary for
>
> Fair Housing and Equal Opportunity

[^1]: The Department well recognizes that there may be disagreement with
    the Department\'s decision not to accept complaints in certain
    categories of cases outlined in this guidance. This guidance is not
    meant to circumscribe the right of any individual who believes that
    his/her rights under the Fair Housing Act have been violated to seek
    redress through private legal action. Nevertheless, the Department
    recognizes that the power and resources of the state are unique and
    that, for many private citizens, being the subject of a \"federal
    investigation\" can be inherently and unavoidably \"chilling.\"
    Where activities that on their face implicate the protections of the
    First Amendment are the subject of a complaint, the Department
    chooses to err on the side of the First Amendment. The Department
    believes that the primacy of the First Amendment, which guarantees
    full and unfettered discussion in the political forum, weighs
    against the initiation of investigations of those activities by the
    federal government except under the conditions set out in this
    Notice.

[^2]: This memorandum in no way affects the Department\'s practice of
    referring certain complaints involving threats of violence to the
    Department of Justice for possible criminal prosecution.

[^3]: This does not include litigation filed in courts. Procedures for
    complaints alleging the filing of frivolous litigation are discussed
    separately in this Notice.

[^4]: In certain circumstances where such activities repeatedly occur in
    close proximity to a captive audience, such as in front of an
    individual\'s home, a claim under the Fair Housing Act may be
    cognizable. [See]{.underline}, [e.g.]{.underline}, [People Helpers
    Foundation v. Richmond]{.underline}, 781 F. Supp. 2132 (E.D. Va.
    1992) (a course of harassment, which included neighbors organizing
    in front of a group home for persons with disabilities, using
    derogatory language to refer to the occupants, and photographing
    occupants and volunteers, stated a claim under Section 818). Because
    of the complexity of the legal analysis required in these cases,
    however, Intake staff are directed to refer allegations of this type
    to Headquarters immediately. No such complaint may be filed without
    prior written approval from Headquarters.

[^5]: This does not include litigation filed in courts.