[Congressional Record Volume 140, Number 134 (Thursday, September 22, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: September 22, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                      HUD AND THE FIRST AMENDMENT

                                 ______


                          HON. JAMES A. LEACH

                                of iowa

                    in the house of representatives

                      Thursday, September 22, 1994

  Mr. LEACH. Mr. Speaker, from time to time a governmental policy is 
promoted which is well-intended but which is so constitutionally 
unseemly as to demand reconsideration. Such has classically become the 
case when the Department of Housing and Urban Development implemented a 
policy to investigate individual and group efforts to organize and 
petition their local governments in hopes of halting decisions or 
developments supported by HUD that citizens believed may have an 
adverse impact on their neighborhood and community. In one case, HUD 
threatened members of a community group with $100,000 fines and a year 
in jail unless they turned over everything they have ever written about 
a proposed project including files, minutes of meetings, and membership 
lists.
  James Madison's thoughts are as appropriate and important today as 
they were during his time when he stated: ``The censorial power is in 
the people over the Government, and not in the Government over the 
people.''
  Because of concerns that HUD overstepped a critical constitutional 
line by interfering with citizens rights to protest developments that 
occur in their neighborhoods, I sent a letter to HUD Secretary Henry 
Cisneros on August 17, 1994, questioning the Department's rationale and 
the legality of HUD's action.
  Given expressed media and congressional skepticism regarding this HUD 
practice, I felt confident that the Department would recognize the need 
for corrective action to ensure that proper protection of first 
amendment rights will be maintained. In fact, HUD dropped the complaint 
in question and issued ``guidelines'' designed to protect individuals 
from certain constitutional infringements

  Unfortunately, HUD's loophole-laden efforts do not go far enough in 
ensuring adequate protection of citizen rights under the first 
amendment. The new guidelines suggest that HUD will in some instances 
continue to investigate individuals or groups who take their protests 
to court or participate in activities before public agencies. And, in 
an ironic twist, HUD's guidelines suggest the possibility that HUD 
could hold a local government liable for citizen protest. As one 
protester commented: ``We can now speak, but the city can't listen to 
us.''
  Accordingly, I am today introducing a concurrent resolution making 
clear that no agency of the Government, such as HUD, has the right or 
power to compromise, suppress, or interfere with the exercise of first 
amendment rights to freedom of speech, association, and redress of 
grievances.
  Although I realize that there may not be enough time for Congress to 
consider this concurrent resolution during this session, I would expect 
the issue to be revisited early in the next Congress if HUD does not 
appropriately respond.
  The oath of office all public officials take is to defend the 
Constitution, not zealously advance any particular policy, no matter 
how meritorious. In America process is our most important product. How 
objectives are obtained is usually as, if not more, important than the 
objective itself.
  While HUD may believe its actions are appropriate and warranted to 
achieve a given objective, and while the majority in Congress may share 
that objective and pass statutes seeking same, no part of our 
Government has the right to divorce regulatory or legislative ends from 
constitutional means.
  Below is the legislation I have introduced today, the above cited 
letter to Secretary Cisneros, and recent articles from the Wall Street 
Journal and Washington Post.

                           H. Con. Res. ----

       Whereas the freedom of speech protected under the first 
     amendment to the Constitution of the United States is one of 
     the guiding principles of this Nation: Now, therefore, be it
       Resolved by the House of Representatives (the Senate 
     concurring), That it is the sense of the Congress that the 
     Department of Housing and Urban Development should not take 
     any action that compromises, suppresses, or interferes with 
     the exercise by any individual of the right of free speech, 
     the right of free association, or the right to petition the 
     Government for a redress of grievances through the 
     legislative, executive, or judicial process.
                                  ____

                                             Committee on Banking,


                                    Finance and Urban Affairs,

                                  Washington, DC, August 17, 1994.
     Hon. Henry Cisneros,
     Secretary, Department of Housing and Urban Development, 
         Washington, DC.
       Dear Mr. Secretary: I am writing regarding media reports 
     that the Department of Housing and Urban Development is 
     investigating citizens who oppose the creation of housing for 
     the homeless in their neighborhoods.
       The enclosed August 8, 1994, Wall Street Journal indicates 
     that HUD, under the authority of the Fair Housing Act 
     Amendments of 1988, is investigating individuals in Berkeley, 
     California, who protested the location of a homeless shelter 
     near their home. This despite the fact, according to the 
     article, that the protest was made through petitioning a 
     local zoning board.
       While I appreciate HUD's obligation to investigate any 
     alleged violation of the Fair Housing Act, I am concerned 
     that the Department's interpretation of the law may in this 
     case be inconsistent with congressional intent. Further, 
     investigations of this sort could potentially have a chilling 
     effect on the willingness of citizens to exercise their 
     constitutionally protected right to petition their 
     government. Accordingly, I would appreciate being provided 
     with HUD's summary of this investigation, information as to 
     whether other similar investigations are now underway, as 
     well as the Department's legal analysis of the 
     appropriateness of such investigations under the Fair Housing 
     Act Amendments of 1988.
       Thank you for your attention to this matter.
           Sincerely,
                                                   James A. Leach,
                                                   Ranking Member.
                                  ____


             [From the Wall Street Journal, Sept. 14, 1994]

                HUD Continues Its Assault on Free Speech


                              rule of law

                         (By Heather MacDonald)

       The Department of Housing and Urban Development still 
     doesn't get it. This summer, a national outcry erupted over 
     the agency's investigation of three Berkeley, Calif., 
     residents who had peacefully protested the siting of homeless 
     housing in their neighborhood. Now HUD has issued a set of 
     guidelines intended to avoid such flagrant violations of the 
     First Amendment. Though the new rules correct some of the 
     agency's policies, they contain a loophole large enough to 
     drive a homeless shelter through, as well as other exceptions 
     that suggest that HUD's reign of terror is not over yet.
       As reported on the Journal's editorial page on Aug. 8 and 
     Aug. 23, HUD has been investigating individuals and community 
     groups under the Fair Housing Act Amendments of 1938. 
     Organized opposition to homeless shelters, drug-treatment 
     centers and residences for the mentally ill--the theory 
     went--constitutes ``housing discrimination'' against the 
     disabled. The FHAA defines disability to include recovering 
     addicts, alcoholics, the mentally ill and AIDS patients--in 
     other words, most of the homeless population.
       HUD's new guidelines prohibit the investigation of all 
     ``public activities that are directed toward achieving action 
     by a governmental entity or official.'' Such activities 
     include distributing pamphlets, holding open community 
     meetings and testifying at public hearings. If an FHAA 
     complaint alleges only such activities, HUD will not accept 
     it for filing.
       HUD will continue to investigate, however, groups or 
     individuals who have taken their protest to court. This 
     loophole eviscerates citizens' last line of defense against 
     local governments that have been captured by the social-
     service industry. Under pressure from homeless advocates, 
     cities routinely violate their own zoning rules regarding the 
     siting of group homes for alcoholics, addicts and the 
     mentally ill. Citizen challenges to such violations have been 
     a mainstay of HUD's FHAA investigations to date.
       For example, Seattle until recently prohibited the 
     placement of social-service facilities within a quarter-mile 
     of each other. Yet in 1992 the city approved the construction 
     of five group homes for addicts and the mentally ill within a 
     single city block. A local neighborhood group sued, charging 
     a violation of the city's dispersion criteria. As a result, 
     HUD has been investigating the group for the last year and 
     could continue to do so under the new guidelines.
       Richmond, Va., requires that medical facilities be located 
     in areas zoned for apartment buildings and duplexes. 
     Nevertheless, the city approved the siting of two medical 
     hospices for AIDS patients--funded with a $2 million grant 
     from HUD--in a single-family zone. Neighbors tried to enjoin 
     construction of the hospices. The individuals are now under 
     investigation by Virginia's Office of Fair Housing. HUD's new 
     guidelines would allow the complaining organization to go 
     directly to the federal government for relief.
       Ironically, the investigation that caused HUD's recent 
     public-relations fiasco and led to the current guidelines was 
     itself predicated on a zoning suit. The three Berkeley 
     residents argued in court that their local zoning board's 
     approval of a homeless housing project in their neighborhood 
     was marred by an egregious conflict of interest: The 
     developer's director sat on the zoning board, and though she 
     abstained from the project decision, she argued in its favor 
     before her colleagues. HUD dropped its investigation of the 
     Berkeley residents under public pressure. The next group of 
     litigants may not be so lucky.
       Incestuous relations between nonprofit developers and their 
     government overseers have become the norm in cities across 
     the country. And as local governments--often under pressure 
     from HUD--embrace the philosophy of ``mainstreaming'' 
     dysfunctional individuals into middle-class communities, 
     violations of zoning rules will become more common. HUD's 
     legal-action exception will continue to discourage challenges 
     to municipalities that bend or break the law.
       HUD's new guidelines carve out another exception to 
     protected speech: Should citizens carry their activities 
     beyond public agencies, they risk liability under the Fair 
     Housing Act. In New York City, HUD investigated a group of 
     neighbors in Manhattan's Gramercy Park who had allegedly 
     tried to outbid a homeless-housing developer for a private 
     property. The developer recently dropped his complaint 
     against the neighbors, but the theory that free-market 
     competition may violate the Fair Housing Act Amendments 
     remains viable under HUD's new rules.
       Third, HUD will continue to investigate individuals and 
     organizations who protest housing decisions if ``the facts 
     available to the Department do not reasonably indicate the 
     precise applicability of the First Amendment.'' In other 
     words, if an advocacy group writes a muddy enough complaint, 
     it can continue to tap into the government's vast coercive 
     power until the ``precise applicability of the First 
     Amendment'' is determined. HUD's assurance that it will 
     ``carefully tailor'' such investigations so as to ``not 
     unduly chill the exercise of free speech'' is ludicrous. The 
     very existence of such investigations, no matter how 
     ``tailored,'' can scare citizens into silence.
       Finally, even if HUD formally ceases investigating 
     individuals, it retains a potent tool of indirect censorship: 
     holding a city liable for statements made by its residents. 
     Though HUD has dropped its investigation of the Berkeley 
     Three, it continues to investigate the city itself for their 
     housing protest. Says Joseph Derlinger, one of the three 
     protesters: ``We can now speak, but the city can't listen to 
     us.''
       Shortly before HUD released its new guidelines, Roberta 
     Achtenberg, assistant secretary for fair housing and equal 
     employment, published an article declaring the agency's 
     respect for the First Amendment. She concluded, however, with 
     the prediction that ``we can expect more cases'' in the 
     future like the investigation in Berkeley. Ms. Achtenberg's 
     assumption that free speech remains in potential conflict 
     with ``fair housing'' dashes any hope that HUD will interpret 
     its guidelines broadly. Indeed, the new rules have resulted 
     in dismissals of only 11 of HUD's 34 pending investigations 
     against individuals and community groups. HUD Secretary Henry 
     Cisneros should close all loopholes in the guidelines 
     immediately and declare that all neighborhood political 
     activity remains safe from government penalty.
                                  ____


               [From the Washington Post, Sept. 14, 1994]

                  HUD's Attack on the First Amendment

                            (By Nat Hentoff)

       I am grateful to Housing and Urban Development Secretary 
     Henry Cisneros and Roberta Achtenberg, his assistant 
     secretary for fair housing and equal opportunity. Every fall, 
     preparing for talks with school kids about the Bill of 
     Rights, I look for a fresh, powerful example of James 
     Madison's legacy to the nation:
       ``The censorial power is in the people over the Government, 
     and not in the Government over the people.''
       From time to time in our history, the government has 
     forgotten its place in our constitutional scheme of things, 
     but never in recent years has an agency of the government--
     HUD--actually canceled the First Amendment right ``to 
     petition the Government for a redress of grievances'' as well 
     as other forms of free speech.
       HUD's purpose was noble, just as Cisneros's motivation was 
     well-intentioned when he proposed last spring that public 
     housing tenants include in their leases a clause allowing the 
     police to break into their apartment without a warrant in a 
     search for guns and hoodlums. The secretary did not 
     understand how anyone could oppose strengthened security in a 
     trade for that technicality, the Fourth Amendment.
       This time, he and Achtenberg wanted to make sure that the 
     Fair Housing Act was firmly implemented--over any dissent. 
     Accordingly, when, for example, federally subsidized housing 
     projects for people with histories of substance abuse or 
     mental disorders were proposed for various neighborhoods, HUD 
     rode shotgun on those projects. If some neighbors objected 
     and filed court actions, or wrote letters to public 
     officials, they were rigorously investigated by HUD for 
     discrimination. Membership lists of their organizations were 
     seized, as were copies of correspondence, and all other notes 
     concerning their conspiracy against the government and the 
     Sermon on the Mount.
       HUD made clear that the First Amendment would not be 
     allowed to stand in the way of government good deeds in New 
     York, Seattle, New Haven and other cities.
       When talking to students, I shall point out that it doesn't 
     matter whether an administration is Republican or Democratic. 
     The urge to keep the people in their place can seize a public 
     official at any time. Also, however, the end of all this--if 
     it has ended--may give the school kids a more bracing view of 
     the free press than they have been getting from adults. If 
     the press had not covered HUD's attempt to revoke the First 
     Amendment, I expect that protesting neighborhood groups would 
     still be having their records subpoenaed--and would still be 
     threatened with heavy fines simply for trying to get a 
     hearing.
       I also have a surprise for the students. In Richmond, Va., 
     a neighborhood association objected to the placement of two 
     facilities for AIDS patients in the middle of their 
     neighborhood. The association questioned the legality of the 
     zoning of those facilities. That led to an extensive 
     investigation of that association by the Fair Housing Office 
     of HUD.
       The surprise is that--as Mary Ann Hirtz, president of the 
     targeted neighborhood association notes--``the local ACLU, 
     acting in behalf of the Richmond AIDS Ministry, filed a 
     discrimination complaint demanding the investigation.''
       I have a copy of the complaint to HUD by Stephen Pershing, 
     legal director of the Virginia affiliate of the ACLU. The 
     complaint is that the neighborhood association had the 
     unlawful temerity to file suit in state court to block 
     construction of the residence.
       The Virginia affiliate of the ACLU was also exercised over 
     the fact that the opponents of the project ``had made public 
     statements designed to foster opposition to the . . . home . 
     . . based on irrational prejudice, fear and animus toward 
     those who will reside there.''
       Only benign speech has the imprimatur of the Virginia ACLU.
       Worse yet, says the ACLU, opponents of the residence ``have 
     made statements to the press.''
       The lesson for the school kids is that not even an ACLU 
     affiliate can be depended on to defend the First Amendment in 
     the face of higher purposes. The national ACLU did, to be 
     sure, tell Ciseros that he had lost his constitutional 
     bearings. But so had the Virginia ACLU.
       One large question remains. How did Cisneros and Achtenberg 
     go so dangerously astray, for so long? Did no one else in 
     government slip them a copy of the First Amendment? This was 
     more than a minor attack on the Bill of Rights. Yet Cisneros 
     and Achtenberg acted without public objection from anyone in 
     the entire Clinton administration--including the White House 
     and the Justice Department.