Saturday, April 22, 2017

Fair Housing Ruling A Menace On Free Speech? Federal Appeals Court Green-Lights Lawsuit Against Bloggers Who Expressed Negative Views Toward Neighbors In Their Condo Building Who Kept Emotional Support Dogs, Despite HOA's 'No-Dog' Rule

From a recent post appearing on the Competitive Enterprise Institute website:
  • A recent ruling by the Third Circuit Court of Appeals menaces free speech in condominiums, apartment buildings, and the Internet. It allowed individual bloggers to be sued because their blog posts allegedly created a “hostile housing environment” for condo residents who kept emotional-support dogs despite the condominium’s no-dogs rule. This “hostile environment” allegedly rendered those blog posts “harassment” in violation of the Fair Housing Act. The provision the court cited does not even mention a hostile environment, but rather makes it illegal “to coerce, intimidate, threaten, or interfere” with the exercise or enjoyment of rights under the Fair Housing Act. (See 42 USC 3617).

    Alarmingly, the court’s ruling in Revock v. Cowpet Bay West Condominium Association also suggested that a single sufficiently offensive blog post could potentially constitute illegal “harassment.” It stated in dictum that “a single act may be sufficient, provided that the conduct is ‘sufficiently severe or pervasive.’” This was a gratuitous statement, since each of the bloggers it allowed to be sued posted multiple blog posts critical of the allegedly disabled plaintiffs.

    The court justified this extremely expansive reading of the statute by citing a speech-restrictive regulation imposed by the Obama administration that purports to interpret the statute. After defining illegal interference to include the creation of a “hostile environment,” that regulation states that “[h]arassment can be written, verbal, or other conduct, and does not require physical contact.” 24 C.F.R. § 100.600(b) (2016). In addition, “[a] single incident of harassment because of race, color, religion, sex, familial status, national origin, or handicap may constitute a discriminatory housing practice, where the incident is sufficiently severe to create a hostile environment, or evidences a quid pro quo.” 24 C.F.R. § 100.600(c) (2016).

    Courts are not supposed to defer to [government agency regulations] at the expense of free speech. Had the bloggers raised a First Amendment defense, deferring to the Obama administration’s speech-restrictive interpretation of the statute would be an error. Even when an agency would otherwise receive great deference in interpreting a statute, it will not receive any deference from the courts where its interpretation would raise potential free-speech problems. The Supreme Court has made this point in the past. (See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 574-575 (1988) (construing National Labor Relations Act narrowly to avoid potential free-speech problems, despite the broad Chevron deference that the NLRB's interpretation usually receives).

    But here, no First Amendment defense seems to have been raised, so it is not clear how free speech principles should have shaped the court’s interpretation of the statute. Presumably, as federal appeals court Judge Alex Kozinski once noted, courts should reinterpret the statute more narrowly in the future when a First Amendment defense is later raised. See United States v. X-Citement Video, Inc., 982 F.2d 1285, 1296 n.7 (9th Cir. 1992) (Kozinski, J., dissenting), rev’d, 513 U.S. 64 (1994) (arguing that if a harassment law is interpreted too broadly in the absence of a First Amendment defense, it should later be reconstrued more narrowly by the same court when a First Amendment defense is raised).

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