One of the cornerstones of any healthy democracy is the citizenry’s freedom to criticize and question government officials and policies. That is why the U.S. Constitution acknowledges a specific right to petition the government rather than relying on the general freedom of speech granted in the First Amendment to safeguard this essential liberty. Despite this crucial and clear protection, however, government officials are increasingly trying to punish the political speech they dislike as illegal discrimination.
Perhaps the most egregious example of this phenomenon involved an attempt to punish opponents of a proposed public housing project in Berkeley, California. Berkeley is divided between affluent neighborhoods in the coastal hills and the much poorer flatlands area. The liberal hills neighborhoods dominate local politics and elect representatives who vote to heavily invest city resources in public housing units, social services, and homeless shelters. Also in response to concerns of the affluent hills residents, the city places almost all these projects in the low-income neighborhoods of the flatlands, where the residents have traditionally been poorly organized and politically weak.
In May 1992, Resources for Community Development, a nonprofit housing developer, received a large grant from Berkeley to convert the run-down Bel Air Motel in the flatlands into a multifamily housing unit for the homeless.1 Opposition to the Bel Air conversion became a unifying cause among the flatlanders. As one resident put it, ‘‘If the city wants to build low-income housing they should do so in an equitable fashion—everywhere within the city’s districts— equally. It’s time for other areas to participate in solving the ‘affordable housing crisis.’ ’’2
Alexandra White, her husband, Joseph Deringer, and their neighbor Richard Graham—a group the media later dubbed ‘‘the Berkeley three’’—organized the opposition to the new housing units. Deringer and White’s home abutted immediately against the Bel Air property, and Graham lived a few houses down the street. In newsletters and petitions, the Berkeley three asserted that the proposed location of the new center, near two liquor stores and a nightclub, was inappropriate because of the prevalence of alcoholism among the homeless population. They also noted the absence of local mental health and substance abuse treatment facilities, a factor seemingly neglectful of the needs of the many homeless who are mentally ill or addicted to drugs.
Despite this neighborhood opposition, led by the Berkeley three, and despite a lawsuit documenting irregularities in the process granting the needed zoning variance to the project, the Bel Air conversion ultimately went forward. However, bitter feelings remained, accompanied by a desire for revenge on the part of the housing activists who had supported the Bel Air project. Marianne Lawless, the director of Housing Rights, Inc., a federally funded housing advocacy group, decided to punish the Berkeley three for what she considered to be their politically incorrect community activism by filing a complaint with the San Francisco office of the federal Department of Housing and Urban Development claiming that the Berkeley three were guilty of discrimination against the disabled. Lawless’s one-sentence complaint stated that the Berkeley three had tried to block the Bel Air project ‘‘because they perceive[d] the primary residents of the facility would be the mentally disabled or the disabled through substance abuse.’’3
Lawless’s complaint relied on the 1988 amendments to the Fair Housing Act, which she contended banned political speech motivated by discriminatory animus that leads to the delay or cancellation of a project that would serve protected groups. HUD agreed, arguing that it could punish ‘‘individuals [who] have engaged in speech advocating illegal acts.’’ HUD asserted that such speech includes asking the government to halt a publicly funded housing project because the facility will serve those ‘‘disabled’’ by drug addiction and mental illness.4
Therefore, HUD vigorously investigated Lawless’s claim, issuing subpoenas for everything the Berkeley three had written about the controversy, for minutes of public meetings, for lists of members of their coalition, and for any other relevant documents. HUD warned the Berkeley three that failure to cease their activism immediately or to comply with the subpoenas could result in fines of up to $100,000 each and jail sentences of up to one year. The Berkeley three were further informed that if the investigation turned up evidence of discrimination, they would be subject to fines of up to $50,000 each and might be liable for compensatory and punitive damages.5 Despite protests from the Berkeley three’s attorney, HUD denied that its investigation impinged on their First Amendment rights. HUD soon announced the results of its preliminary investigation: the Berkeley three had violated the Fair Housing Act. HUD sent the case to the Justice Department for prosecution.
The Berkeley incident was just one of many during the early years of the Clinton administration in which HUD officials harassed and intimidated neighborhood activists.6 One victim summed up the effects of HUD’s investigation as follows:
It financially ruined the neighborhood association and terrified residents. HUD investigators pressured neighbors to turn informer. Residents were afraid to join the association or to speak out at public meetings. The government even tried to deprive us of legal representation by threatening to call our attorney as a witness. We couldn’t take minutes at meetings of our board because these could be seized and used as evidence against us. We tried to settle the case, but the terms of the consent decree drafted by the government were intolerable. They would have required residents to undergo an enforced course of political re-education and proposed unconstitutional restraints on our right to speak, write and association.7
After a media outcry over HUD’s disregard of First Amendment rights in the Berkeley case and other cases,8 the agency backed down, announcing that it would no longer investigate ‘‘any complaint . . . that involves public activities 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.’’9 HUD also announced that it was dropping the investigation of the Berkeley incident because, it concluded, the Berkeley three had acted within their First Amendment rights.10
This all sounds very sensible, but the new policy was opposed by Assistant Attorney General Deval Patrick of the Justice Department, which prosecutes lawsuits under the Fair Housing Act. Patrick ignored HUD’s new guidelines and ordered the Justice Department to bring new lawsuits against community activists.11 He contended that ‘‘Congress intended the [Fair Housing Act] to proscribe any speech if it leads to discrimination prohibited by the FHA.’’12 Two years after HUD acknowledged that prosecuting neighborhood activists for expressing their political viewpoints was unconstitutional and unwise, Patrick continued to defend the Justice Department’s attempted squelching of free speech in a Fair Housing Act case in Fort Worth, Texas. In doing so, he analogized political leaflets to baseball bats, remarking that bats ‘‘are perfectly legal too. But if you wield one to keep people out of the neighborhood, we are going to use the bat as evidence of your intent to violate the civil rights laws.’’13
The problem with Patrick’s analogy is that there are huge differences, both constitutionally and morally, between wielding a baseball bat as a physical threat and using speech to try to peacefully persuade others that a point of view is correct. The essence of the First Amendment is that peaceful persuasion is permissible, even when the potential consequences of that persuasion are unpalatable. Patrick assumed that speech, like wielding a baseball bat, can be restricted simply because it may result in harm to someone, but he was wrong. The First Amendment protects freedom of speech even when the speech at issue could cause harm . For example, a person has the right to propagate nasty and incendiary theories, such as the truth of racial superiority or the need to boycott stores owned by a particular ethnic group, even though speech may cause grievous harm. This outcome may be distasteful, but it beats the alternative, of trusting the government to use political criteria to decide which speech is too offensive or too dangerous to tolerate. And let’s not kid ourselves; political criteria, rather than some highfalutin’ academic or philosophical theory, is exactly what the government will use.
Luckily, the federal judge overseeing the Fort Worth case had a better grasp of the First Amendment than did Patrick and rejected the latter’s theory. The judge held that ‘‘leafleting, petitioning, and soliciting’’ against the placement of a group home in one’s neighborhood are actions protected by the First Amendment.14 More generally, the federal courts have steadfastly protected First Amendment rights against legal assaults on neighborhood activists. For example, the Berkeley three successfully sued HUD in federal court for its violation of their constitutional rights.15 In that case, the court even took the unusual step of holding individual HUD employees personally liable for this violation because their conduct was so clearly and outrageously unconstitutional. In the few other cases that have squarely addressed the First Amendment issue, courts have similarly decided in favor of citizen activists and against HUD.16
However, one judge did leave the door open for future government lawsuits after dismissing a Fair Housing Act case filed by a real estate developer against Travis Compton. Compton had been appointed by the mayor of Fresno, California, to serve on an advisory committee charged with making recommendations on proposed development plans. As part of his duties, Compton voted and spoke out against a public bond issue for a low-income housing project. The developer who had hoped to build the project sued Compton for violation of the Fair Housing Act.
Tens of thousands of dollars in legal fees later, the judge found that the plaintiff failed to provide sufficient evidence to support his claim. But the judge also opined gratuitously that ‘‘the First Amendment does not necessarily trump the Civil Rights Act or state and federal fair housing laws.... Unlawfully discriminatory conduct carried out by speech activities is not immunized by the First Amendment.’’17 Cases in which developers sue citizens opposed to their plans are especially dangerous, because developers, unlike HUD officials, are not government officials and therefore cannot be sued for violating the First Amendment. Until the Supreme Court makes clear that citizen activists may not be punished under the Fair Housing Act for engaging in political speech, public housing developers will attempt to use the Fair Housing Act to intimidate their political opponents and bully their way past obstacles to their projects.
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Neighborhood activists opposing housing projects are not the only lightning rods for attempts to suppress political speech. Anyone taking action to oppose the current orthodoxy on antidiscrimination principles is at risk of being silenced by the powers that be. Critics of affirmative action preferences in higher education seem especially likely to be threatened with censorship. For example, Professor James Bell of Chicago’s Daley College mocked the school’s affirmative action ‘‘diversity’’ policy in a sarcastic column for the teachers’ union newspaper. He wrote the following:
I think this is a marvelous idea, and because I also subscribe to the idea of diversity . . .
. . . When I buy a dozen eggs I try to make sure that at least two or three of them are rotten.
. . . I want a law passed that says one-fourth of all doctors must be incompetent.
. . . now and then I make a point to date an ugly woman.
. . . I believe we should encourage more Egyptians to come to the U.S. so that our country could also enjoy the advantages of female genital mutilation. . . . I think we should also welcome more Mauritanians and Sudanese to the United States, so we could also have human slavery in this country.. . . I think all colleges should be required to hire administrators and teachers with IQs below 80. (I was just told this law already exists; it’s called ‘‘affirmative action.’’)
. . . I think there should be a law forcing companies to hire employees even though they can’t do the job. (Someone mentioned that there already was such a law; it’s called ‘‘affirmative action.’’).
. . . Finally, I think the President [of the College] should fire himself and the Vice-President in order to make room for more non-Hispanic administrators at Daley College.18
Not surprisingly, the column evoked some controversy. No doubt that was part of the author’s intent, but those who disagreed with Bell did not seem willing to debate or share their views on the contentious issue. It was perhaps easier to muzzle the pesky messenger. The college’s Board of Trustees filed a complaint against the union newspaper that had carried Bell’s column with the Chicago Commission on Human Relations. The complaint relied on the Chicago Human Rights Ordinance, which bans discriminatory ‘‘harassment in places of public accommodation.’’ The complaint alleged that Bell’s antidiversity article ‘‘contribute[d] to deep-seated problems in attitude and behavior that makes students uncomfortable in an institution where comfort is essential for learning.’’ According to the board, ‘‘The First Amendment is not blanket authorization for provocative hate speech at a public institution.’’ The Commission eventually dismissed the action, but only because it found that the newspaper at issue was not a ‘‘place of public accommodation’’ under the law.19
Other professors have also found themselves under fire for expressing politically incorrect sentiments outside of the classroom. David Deming, professor of geology and geophysics at the University of Oklahoma, wrote to the campus newspaper, The Oklahoma Daily ,20 responding to a syndicated pro–gun control editorial by Yale student Joni Klotter. Klotter’s piece had stated that ‘‘easy access to a handgun allows everyone in this country . . . to quickly and easily kill as many random people as they want.’’
It wouldn’t take a gun nut to object to Klotter’s hyperbole, but Deming, a zealous gun rights advocate with a history of making eccentric statements, had an especially cantankerous reaction.21 His response letter stated that Klotter’s ‘‘easy access’’ to a vagina enabled her to ‘‘quickly and easily’’ have sex with ‘‘as many random people’’ as she wanted. He added that her ‘‘possession of an unregistered vagina equipped her to work as a prostitute and spread venereal disease.’’ Deming concluded his letter by stating that he hoped Klotter was as responsible with her dangerous ‘‘equipment’’ as most gun owners are with theirs.
It was a strange and aggressive way to express a pro–gun rights position, and it is hard to imagine that Deming’s analogy won over many readers, but his letter clearly argued the merits of a political position. A few days after Deming’s letter appeared, Becky Herbert, director of the University of Oklahoma’s campus ministry center, filed a sexual harassment complaint against Deming with university administrators. Herbert found it ‘‘unacceptable’’ that Deming had ‘‘resort[ed] to using an individual’s human sexuality as a means of entering into a debate.’’ Herbert stated that ‘‘having my [sic] vagina equated with a handgun is degrading, and for this to go unaddressed by the university is demoralizing.’’22 She told the media that she wanted the university to reprimand Deming and require him to undergo sensitivity training on women’s issues.23 Twenty more formal complaints from other members of the University of Oklahoma community followed.
Most observers would agree that Deming’s letter was, at best, intemperate and vulgar, although Deming subsequently argued that he had simply tried to show that ‘‘my gun no more makes me a killer than her vagina makes her an immoral person.’’24 Regardless, a letter to a school paper making a political argument hardly comes within the standard definition of sexual harassment. Moreover, the letter was clearly political speech protected by the First Amendment, and the University of Oklahoma, as a public university, was obligated to abide by First Amendment rules.
The university nevertheless allowed a sexual harassment investigation to proceed. The dean of the College of Geosciences, John T. Snow, criticized Deming for upsetting students, alumni, and the administration, and he warned Deming that the controversy might affect his career.25 As proceedings against Deming progressed, university president and former U.S. senator David Boren declined to intercede on his behalf. Boren’s primary concern, he told Deming, was not academic freedom but ‘‘restoring civility to public debate.’’26 Eventually, two libertarian-leaning organizations, the Center for Individual Rights and the Foundation for Individual Rights in Education, threatened to sue the university for violating Deming’s First Amendment rights. In an astounding coincidence, shortly after receiving these threats the university’s administration suddenly discovered that Deming’s letter was actually not covered by the university’s sexual harassment guidelines, and the university dismissed the complaints against him.
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We have examined some very blatant and overt attempts at censoring unpopular political ideas, but antidiscrimination laws threaten freedom of expression in more subtle and insidious ways. Corporate CEOs, university presidents, members of the clergy, and other prominent individuals often develop a high profile outside of their work-places and are subsequently asked to speak about public issues. One would think that on these occasions the speaker could say what he liked, as he is speaking on his own private time and in his own personal capacity, but one would be wrong. As former Boston University president John Silber discovered the hard way, plaintiffs in employment discrimination lawsuits can use a prominent person’s public statements against him.
Professor Julia Brown of BU’s English Department sued the university when it denied her tenure.27 During trial and in his closing argument, her attorney discussed a speech that had been delivered by then-university president Silber, a vocal social conservative. In his speech, delivered a few years earlier to a policy group in Washington, D.C., Silber had expressed concern about the growing number of working women who he felt did not spend sufficient time and energy on child-rearing. Brown’s attorney cross-examined Silber about this speech, and the judge jumped in, gratuitously asking, ‘‘Some of those career women are in the universities, including your own? . . . And I suppose one way to get them back in the kitchen, is to get them out of the university; is that so?’’ In his closing argument, Brown’s attorney stated that based on Silber’s views, ‘‘at BU, women and not men carry the burden of being seen as wives and mothers and not just as scholars.’’
The jury awarded Brown $215,000 and tenure. An appellate court criticized the trial court for admitting the evidence regarding Silber’s speech. The court observed that the evidence presented was marginally relevant at best and that allowing evidence of a university official’s political and social views to support a discrimination claim had the potential to chill academic freedom. The court nevertheless let the verdict stand, finding that the admission of the speech was ‘‘harmless error’’ that had not affected the verdict—a curious finding given the attention Brown’s attorney had lavished on the evidence in his closing. Indeed, posttrial interviews with jurors revealed that while they liked Brown,28 they did not believe that BU had discriminated against her. They had nevertheless ruled in her favor because they felt that Silber was arrogant and sexist in believing that women should stay home and take care of their kids. Had the district court excluded the evidence of Silber’s speech, BU would likely have won the case.
Courts have even used individuals’ stated opposition to or distaste for antidiscrimination laws as evidence of discrimination. For example, one court began an opinion finding liability under the Equal Pay Act of 1963 by quoting a manager who had pronounced the law ‘‘foolish’’ when it was under congressional consideration.29 In another case, an appellate court upheld a verdict for the plaintiff in a sex discrimination lawsuit against Keene State College in part because a Keene State official had, in an unrelated letter, written to the president of Smith College for information on how that school had responded to a charge of sex discrimination because he was ‘‘concerned that that form of anarchy may creep north into our virgin territory.’’30 And when Forbes magazine was sued for age discrimination, the plaintiff relied on a column publisher Steve Forbes had written 15 years earlier opposing proposed laws that would end age-based mandatory retirement.31
This trend of admitting past remarks on legal or social policy law as evidence of current discrimination is disturbing. The fact that a defendant criticized an antidiscrimination law may be marginally relevant to the question of whether the defendant broke the law. However, most people obey even laws they disagree with, and allowing the plaintiff to present the defendant’s critical remarks to the jury about popular law is grossly and unfairly prejudicial. Admission of such statements therefore violates standard rules of evidence.32 Moreover, allowing discrimination plaintiffs to rely on a defendant’s past political speech creates a severe risk of chilling the exercise of First Amendment rights, a risk that is not worth taking for introducing evidence of minimal value.
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Even criticisms of perceived government racism can get a speaker in trouble with civil rights authorities when the form of the criticism is deemed offensive. St. Paul, Minnesota’s Human Rights Director, Tyrone Terrill, sought to punish the St. Paul Pioneer Press for running a biting editorial cartoon critical of the school’s failure to properly educate black athletes. The cartoon, entitled ‘‘The Plantation,’’ depicted a basketball game with three anonymous African American University of Minnesota basketball players visible. Two middle-aged, well-dressed white males are watching the game from the stands, and one says, ‘‘Of course we don’t let them learn to read or write.’’33 Cartoonist Kirk Anderson was protesting the UM athletic program’s perceived exploitation of African American athletes— only one in four UM basketball players graduates from the university.
Terrill’s complaint nevertheless alleged that the cartoon created an illicit ‘‘hostile public environment,’’ an allegation similar to the one leveled against the teachers’ union newspaper in the Daley College case. Terrill claimed that by creating such an environment, the newspaper illegally ‘‘discriminated against African American student-athletes past, present and future in the area of public accommodations on the basis of race.’’34 Terrill told the Pioneer Press that he believed the cartoon was not protected by the First Amendment, because it was analogous to an employee hanging nude centerfolds in the workplace or directing racial epithets at coworkers, behavior other courts had punished (see Chapter 2). After meeting with the newspaper’s attorney, Terrill agreed to drop the complaint, but only because the attorney persuaded him that the newspaper’s editorial column could not have violated St. Paul’s antidiscrimination ordinance, because an editorial column is not a ‘‘place of public accommodation’’ under the law.35
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One of the most cherished freedoms Americans enjoy is the right to lobby and criticize their government. It is both frightening and sad, then, that this liberty is undergoing such a serious and increasing threat from antidiscrimination laws. The only thing that now stands between a citizen with a contrarian political view to express and the Deval Patricks, Tyrone Terrills, and other eager censors of the world is the First Amendment. If we allow antidiscrimination laws to erode this protection, we will find ourselves at the mercy of a power elite able to muzzle any dissent from its vision of an egalitarian political orthodoxy.