IN two recent disputes, civil libertarians have cast the federal Department of Housing and Urban Development (HUD) in the role of a jack-booted Big Brother. The housing agency trampled on free-speech rights, these critics say, when HUD investigated community activists in Berkeley, Calif., and New York City who protested against plans to place group homes for disabled people in their neighborhoods.
In response to these accusations, HUD this week will announce new guidelines for antidiscrimination investigations under the Fair Housing Act, according to Roberta Achtenberg, HUD's assistant secretary for fair housing and equal opportunity.
The guidelines will make it clear that protests intended solely to influence housing decisions by public authorities such as zoning boards, housing agencies, or local governments will not trigger a federal antidiscrimination investigation, Ms. Achtenberg said in a telephone interview Tuesday. Such protests include petitions, leafletting, articles, or statements in open meetings opposed to housing plans.
``These kinds of activities are classic forms of political speech,'' the HUD official said.
But Achtenberg said her department will continue to investigate and take legal action against protests ``intended to intimidate, coerce, or interfere with people who are exercising rights that are protected by the Fair Housing Act.''
For example, she said, picketers could not surround a home to dissuade the owner from selling the residence to a black family or members of other protected groups.
In addition to outlawing discrimination by sellers, landlords, government housing authorities, zoning boards, realtors, and other people or entities directly involved in the housing market, the Fair Housing Act makes it illegal to ``coerce, intimidate, threaten or interfere'' with any person exercising protected housing rights. Prohibited actions include ``harassment of persons because of race, color, religion, sex, handicap [including mental illness and substance abuse], familial status or national origin.''
Last November, responding to a complaint by a fair-housing group in Berkeley, HUD launched an investigation of three residents who strongly resisted a plan to convert a seedy motel near their homes into 35 units for homeless people, including some recovering alcoholics. The trio circulated pamphlets, spoke out in public meetings, and sued the city government to prevent approval of the project, which they claimed would have a harmful effect on the community (to no avail; the project was eventually approved).
More recently, HUD commenced an investigation in New York of residents who fought the placement of a group home for mentally disabled people in the city's Gramercy Park area. Both investigations provoked accusations by the protesters, civil libertarians, and editorial writers that the probes infringed on constitutionally guaranteed political and free-speech rights.
Last month, in a letter to HUD Secretary Henry Cisneros, the American Civil Liberties Union urged the housing agency to develop investigation guidelines to safeguard protesters' free-speech rights. ``The right of local residents to express publicly their objection to community-based housing in their neighborhood is clearly protected by the First Amendment, however much we or others may disagree with their opinion,'' the letter said.
HUD subsequently announced that it had terminated the investigation of the Berkeley protesters, having determined that their actions ``amounted to protected free speech....'' And Achtenberg said this week that, from HUD's standpoint, the New York City dispute was moot, since local fair-housing advocates had dropped their complaint against the Gramercy Park protesters.
Under the new guidelines, Achtenberg said, HUD officials in the field who receive a fair-housing complaint ``must demonstrate to headquarters a strong likelihood that the alleged discrimination involved actions that are not protected free speech before we will permit an investigation to go forward.
``Secretary Cisneros and I are well aware that even the possibility of a federal anti-discrimination investigation can have a chilling effect on free speech,'' the assistant secretary said.
When HUD does authorize an investigation of protests that may include protected activities, Achtenberg said, ``we will exercise strict oversight.''
After the guidelines are issued this week, HUD ``will consult with a host of groups,'' she said. ``The ACLU and other people have brought some very valid concerns to our attention in this matter, and we value their participation.''
But some fair-housing advocates, while acknowledging the importance of protesters' First Amendment rights, say the recent controversy should not obscure the extent to which ``neighbor-based'' housing discrimination goes on in the United States.
``What could be called housing hate crimes - graffiti, threatening phone calls, shotgun blasts through windows, fire bombs - intended to keep people out of neighborhoods happen regularly, coast to coast,'' says George Galster, a researcher at the Urban Institute in Washington. Even dis- criminatory conduct that arguably could be called ``speech'' is not always protected by the Constitution. In July, an administrative law judge in a HUD case imposed a $300,000 fine on a woman who engaged in a ``relentless campaign of [verbal] intimidation'' to force a black man out of a public-housing complex in Vidor, Texas.
``The harassment and intimidation that occurred in the Vidor case are not atypical,'' Achtenberg said.