[Congressional Record Volume 140, Number 141 (Monday, October 3, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  SENATE CONCURRENT RESOLUTION 76--RELATING TO THE INTERFERENCE WITH 
   FIRST AMENDMENT BY THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

  Mr. BOND (for himself, Mr. D'Amato, and Mr. Gorton) submitted the 
following concurrent resolution; which was referred to the Committee on 
Banking, Housing and Urban Affairs:

                            S. Con. Res. 76

       Resolved by the Senate and House of Representatives 
     concurring), That it is the sense of the Congress that--
       (1) freedom of speech under the first amendment to the 
     Constitution of the United States is one of the guiding 
     principles of this Nation; and
       (2) the Department of Housing and Urban Development should 
     not enforce the Fair Housing Act or any other provision of 
     law in any manner, or take any other action, that in any way 
     compromises, suppresses, or interferes with the exercise by 
     any individual of the right of free speech, right of free 
     association, or the right to petition the Government for a 
     redress of grievances through the legislative, executive, or 
     judicial process.

  Mr. BOND. Mr. President, I am submitting today with a number of my 
concerned colleagues a concurrent resolution that emphasizes the 
overwhelming need for our Federal Government, at a minimum, to every so 
often pause, reflect on our history and give thoughtful re-examination 
to the importance of free speech under the first amendment as one of 
the guiding principles of this Nation. To some degree, every important 
development in the evolution of our free society has been underlined by 
the free exchange of ideas and the ability to state our beliefs and 
opinions.
  To my great concern, there have been numerous articles over the last 
several months that raise serious concerns that the Department of 
Housing and Urban Development has been implementing the Fair Housing 
Act in a manner designed to discourage individuals from exercising 
their right of free speech under the first amendment. In particular, a 
recent article in the Wall Street Journal on August 8, 1994 describes 
HUD litigation under the Fair Housing Act against individuals in 
Berkeley, CA for objecting to the location of a homeless shelter in 
their neighborhood. At that time, as many as 34 similar cases were 
being investigated by HUD.
  In response to my concerns and those of my colleagues, HUD issued 
guidelines on September 2, 1994, designed to safeguard free speech 
under the Fair Housing Act. Nevertheless, additional articles, 
including a recent Wall Street Journal article dated September 14, 1994 
and a Washington Post article on September 14, 1994, continue to 
question HUD's resolve and deference to the right of free speech.
  Therefore, the purpose of my concurrent resolution is to re-emphasize 
the commitment of this body and the Congress to the principles of the 
first amendment and to remind the Department of Housing and Urban 
Development that the Department must not interfere with the exercise of 
the right of free speech, the right of free association, or the right 
to petition the Government for redress of grievances.
  I have included several of the recent articles from the Wall Street 
Journal and the Washington Post which reflect the need for this body to 
continue to emphasize the importance of free speech both to this Nation 
and the actions of this Government.
  Congressman Leach has submitted an identical resolution in the House 
of Representatives. It is my hope that both bodies will have an 
opportunity to act on this concurrent resolution before the end of the 
session.
  I ask unanimous consent that the articles be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record as follows:

              [From the Wall Street Journal, Aug. 8, 1994]

                    Free Housing Yes, Free Speech No

                        (By Heather Mac Donald)

       Upset about the new program for homeless drug addicts 
     moving in next door? Thinking of protesting to your local 
     zoning board? Try kicking the dog instead. Objecting to the 
     project could bring a knock on the door from the Feds and 
     threats of punishment. The government has decided that when 
     it comes to a conflict between the First Amendment and the 
     rights of addicts and alcoholics to be housed wherever they 
     please, the addicts win hands down.
       For the past 10 months, three residents of Berkeley, 
     Calif.--Joseph Deringer, his wife Alexandra White and their 
     neighbor Richard Graham--have been under investigation by the 
     Department of Housing and Urban Development for having 
     opposed a planned homeless housing project near their homes. 
     HUD has threatened each with fines of $100,000 and a year in 
     jail unless they turn over everything they have ever written 
     about the project, all their files, the minutes of all 
     meetings of their neighborhood coalition and the coalition's 
     membership lists. Should the documents prove damning, 
     thousands of dollars in penalties may lie ahead.


                             no protection

       According to HUD officials, organized opposition to 
     homeless shelters and other social-service facilities--if it 
     is based on the attributes of the people involved--enjoys no 
     First Amendment protection. Such opposition, says HUD, 
     violates the Fair Housing Act Amendments of 1988, which are 
     supposed to safeguard the housing rights of the disabled. HUD 
     and the federal courts have defined addiction and alcoholism, 
     as well as AIDS and mental illness, as federal protected 
     disabilities.
       It remains possible to oppose, for example, siting a home 
     for recovering drug addicts with AIDS next to a school--if 
     you argue that its storage space for medical waste is 
     inadequate. But to argue that the residents themselves may 
     pose a threat to the students runs afoul of the law and fails 
     outside constitutional guarantees, in HUD's view.
       Some HUD officials do not appear to see even a potential 
     First Amendment problem with the Berkeley investigation. E. 
     Herman Wilson, director of the compliance and enforcement 
     division of HUD's San Francisco office, says: ``If we had 
     received allegations regarding free speech [in the 
     original complaint against Mr. Deringer et al.], we 
     wouldn't have accepted it. We received a complaint 
     regarding the Fair Housing Act.''
       Yet the only actions the complaint refers to are textbook 
     examples of petitioning the government for a redress of 
     grievances.
       For the past 16 years, Mr. Deringer, Ms. White and Mr. 
     Graham watched as crime and squalor engulfed their Berkeley 
     neighborhood. Nearby University Ave.--the main artery into 
     the city and the University of California--had become the 
     site of choice for the city's numerous homeless shelters, 
     drug programs and subsidized housing units. Juvenile 
     offenders from a local halfway house formed a gang with kids 
     from a neighboring Section 8 housing project. A children's 
     park next to a women's shelter was commandeered by the 
     women's boyfriends for drug-dealing.
       So in July 1992, when word leaked that the city was 
     erecting yet another homeless program in the run-down Bel Air 
     hotel across from their homes, the three residents didn't 
     hesitate to organize their neighbors against the project. 
     They argued in newsletters and public petitions that the site 
     chosen for the new homeless facility--next to two liquor 
     stores and nightclub--was grossly imprudent, given the high 
     prevalence of addiction and alcoholism among the homeless. 
     Equally dangerous, they charged, was the failure to provide 
     on-site services for addiction and mental illness. Finally, 
     they brought an unsuccessful conflict of interest action 
     against Berkeley's zoning board, demanding a reconsideration 
     of the new facility's permit. For these offenses. If found 
     guilty, they face statutory penalties of $50,000 apiece, as 
     well as compensatory and potential punitive damages.
       Clearly free speech isn't what it used to be in the 
     erstwhile home of the Free Speech Movement--or anyplace else, 
     for that matter. HUD is currently questioning a community 
     group that opposed a home for the homeless mentally ill 
     near Gramercy Park in Manhattan. The Justice Department 
     has had a suit pending for a year and a half against a 
     group of neighbors in New Haven, Conn., who sued to 
     prevent a foster home on their street. In Seattle, a 
     neighborhood coalition that opposed a home for female ex-
     convicts was investigated by HUD in 1991; another local 
     group has been under investigation since last August for 
     filing a zoning suit. Residents in Kansas have been fined 
     for trying to block a group home. And the cases are legion 
     in who cities have been held liable for political 
     statements against group homes made by their citizens--a 
     form of indirect censorship.
       In every city in which HUD has pursued investigations 
     against individuals and community groups, opposition to 
     planned social--service facilities has been severely 
     chilled--just as intended. The attorney for Mr. Deringer, Ms. 
     White and Mr. Graham has received calls from people across 
     the Bay Area. terrified by prospective liability should they 
     speak out against local homeless shelters and drug-treatment 
     facilities. The Berkeley city attorney wrote a letter in May 
     1994 to a group of North Berkeley residents warning them that 
     questions they were asking about a planned AIDS facility for 
     the ``mentally disabled''--i.e., addicts--in their 
     neighborhood could subject both them and the city to 
     prosecution under federal and state antidiscrimination laws.
       HUD's investigations can only be expected to increase in 
     the future, especially in light of HUD's own growing 
     involvement in the homelessness services industry. The 1988 
     amendments gave the agency the authority to sue on behalf of 
     alleged victims at the government's expense. As word of this 
     free legal representation has gotten out, the number of 
     discrimination complaints has risen. Housing Secretary Henry 
     Cisneros and Assistant Secretary of Fair Housing and Equal 
     Opportunity, Roberta Achtenberg have both stated that 
     enforcement of the act is a top priority.
       Agency accountability, it seems, is not. Says Mr. Deringer: 
     ``It feels like Kafka. We don't know who's involved at HUD; 
     we don't know who's responsible. There's no one who will talk 
     to us about the case.'' The three residents did receive a 
     call from a HUD investigator on behalf of the complainant, 
     however, saying that she would drop charges if they agreed 
     never to write or speak on housing issues again.
       The immediate concern raised by the Berkeley case and 
     others like it is obviously HUD's blatant censorship. But 
     underlying the case are two other troubling issues.
       The 1988 Federal Housing Act Amendments rest on the myth 
     that facilities for socially dysfunctional individuals have 
     no more consequences for neighborhoods than family 
     residences. In her letter to the North Berkeley neighbors, 
     the Berkeley city attorney chastised them for implying that 
     the city should treat a home for addicts with AIDS any 
     differently from any other home. But while some group homes, 
     if meticulously run, may indeed integrate into their 
     surroundings, others, especially in excessive numbers, impose 
     enormous burdens on communities. Prohibiting speech about 
     those consequences will not make them disappear.


                         Serious Moral Mistake

       An even greater fallacy underlying the FHAA investigations 
     is the notion that drug addiction and alcoholism are 
     involuntary ``disabilities.'' To ignore the individual 
     responsibility at the origin of such conditions is a serious 
     moral mistake with enormous financial repercussions. As Roger 
     Leed, a Seattle attorney who defended community groups 
     against HUD, puts it: Defining drug abuse as a disability 
     makes ``every panhandler on the street with a cup a member of 
     a protected class.''
       For the moment, one hope of stopping the Bel Air project in 
     Berkeley lies in just this unwarranted extension of rights. 
     However, the developer has discovered a group of squatters in 
     the Bel air hotel. When it tries to evict them, it could find 
     itself under investigation for discriminating against the 
     housing rights of the disabled.
                                  ____


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

                HUD Continues Its Assault on Free Speech

                        (By Heather Mac Donald)

       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 1988. 
     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 they 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 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' 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 apartments without a warrant in 
     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 has 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 affilate 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 who 
     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 Cisneros that he had lost his constitional 
     bearings. But so had the Virginia ACLU.
       One large question remains. How did Cisneros and Achtenberg 
     go so dangerously astry 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.

                          ____________________