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MA Gov.-elect Deval Patrick--Enemy of the First Amendment?:

I didn't know that Deval Patrick was running for governor of Massachusetts, or I would have posted this sooner. Patrick makes a brief cameo in my book You Can't Say That!, and this cameo suggests that he has, or at least had, little understanding of, or sympathy for, freedom of speech.

The background is that during the Clinton Administration, HUD filed a series of civil rights lawsuits against community groups that opposed the placement of halfway houses in their neighborhoods. The only illegal activities the groups allegedly engaged in were such clearly protected activities as holding meetings, organizing petitions, publishing newsletters and the like. The underlying theory, however, was that, for example, by opposing a rehabilitation facility for drug addicts, the groups were violating the Fair Housing Act by making it more difficult for the handicapped (which by statutory definition includes recovering drug addicts) from getting housing.

Following truly awful publicity, HUD 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." More generally, HUD would no longer prosecute behavior protected by the First Amendment.

This was not good enough for then-assistant AG Patrick:

[T]he 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. He contended that "Congress intended the [Fair Housing Act] to proscribe any speech if it leads to discrimination prohibited by the FHA." 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." ....Luckily, the federal judge overseeing the Ft. 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.

Patrick's baseball bat analogy is one of the dumbest, and scariest, interpretations of freedom of speech I've ever seen from a person in a position of federal authority. I hope Patrick's respect for freedom of speech has evolved in the meantime.

UPDATE: Of course, it's possible that Patrick didn't actually believe that any court was going to buy his argument, but instead just wanted to keep the litigation going to intimidate the homeowners. Even if the homeowners eventually emerged victorious in litigation, as they did, they still had to face the threat of prosecution and enormous legal fees. Ironically, it was Patrick who was using the metaphorical baseball bat, the threat of (state) violence, to violate the homeowners' rights.

WHOI Jacket:
Its all right, I'm sure that all those flyers in the People's Republic of Cambridge are safe. I mean, all those Not In Our Name rally flyers are so much thinner than baseball bats.....
11.8.2006 3:03pm
Richard Aubrey (mail):
You hope, huh?

If wishes were horses, beggars would ride.
11.8.2006 3:07pm
Chumund:
This strikes me as similar to the Noerr-Pennington issue, which started in antitrust law but has been extended to other areas of law. Of course, there is a sham exception to Noerr-Penningtion pursuant to California Motor Transport.

By the way, I don't it would be improper to use activities protected by the First Amendment as evidence of unlawful intent, as opposed to as the predicate acts themselves.
11.8.2006 3:10pm
Hans Bader (mail):
Deval Patrick's position was rejected by the Ninth Circuit in White v. Lee, 227 F.3d 1214 (9th Cir. 2000), which held that speech by private citizens which convinces a city government to deny housing to a protected class (in that case, drug addicts, who are deemed disabled), in violation of the Fair Housing Act, is nevertheless protected speech when it does not involve incitement of violence or similar imminent lawless action.
11.8.2006 3:26pm
White v. Lee (mail):
written by that notorious opponent of free speech, Judge Reinhardt -- for whom now-Governor Patrick clerked . . . .
11.8.2006 3:50pm
David M. Nieporent (www):
Patrick was also the driving force behind the racist attempt to fire Sharon Taxman in New Jersey. That was the case in which a New Jersey school had two teachers, a black and white, and needed to lay one of them off. They decided to fire the white teacher, Taxman, solely because she was white. Taxman sued, and the DoJ supported her... until Patrick got wind of the suit, and switched sides.
11.8.2006 4:07pm
BU06:
Bernstein: You're in rare form today. Two posts on affirmative action and now a post taking a left-field shot at the first black governor in MA history {2nd in US history}. Nice.
11.8.2006 4:17pm
DavidBernstein (mail):
BU, you're right, he's black, so I shouldn't criticize him.
11.8.2006 4:20pm
DavidBernstein (mail):
That was, of course, saracasm. By the way, BU, I'm Jewish, so stop criticizing me.
11.8.2006 4:20pm
Daniel Chapman (mail):
funny... I never would have known he was black if you hadn't informed me, BU06.
11.8.2006 4:25pm
J. F. Thomas (mail):
As scary as DOJ arguing that detainees telling their lawyers about the interrogation methods used on them would be revealing state secrets or spying on Quakers because they might be plotting terrorist activities?
11.8.2006 4:36pm
BU06:
Criticize him all you want. But why not focus on current, relevant issues? (Like his position on providing state services to illegal immigrants). Or provide a more complete picture of his first amendment thinking. (Which you didn't do with Coleman and MCRI posting -- still waiting for that updated post).

Constantly obsessing on these minority issues (FHA litigation, AA, etc.) makes you seem like a hack. It gets tiring. Mix it up a little bit, ok?
11.8.2006 4:37pm
Constantin:
BU06, how long does the moratorium on criticism for black politicians last? When Patrick is up for re-election in four years, can the GOP run someone against him, or do they just have to concede? I bet Michael Steele and Lynn Swann and Ken Blackwell wish they'd known about your rule.

Get ready for this garbage times about a million, folks, if Obama runs for president.
11.8.2006 4:37pm
WHOI Jacket:
Well, if Jesse couldn't get the nomination in '88.........
11.8.2006 4:48pm
Guest 1108:
BU06, the only thing tiring about Berstein's posts today is sifting through your racialist drivel, better suited for other blogs or previous centuries.
11.8.2006 4:50pm
whit:
this is a truly chilling example of the idea of speech as a crime. it is VERY common in canada and the UK, but fortunately we have that pesky first amendment here.

what i find ironic is that the speech is discriminatory by Patrick believes that speech that "convinces a city govt." to change policy/actions is a crime.

so, in other words, one of the tests for whether speech is constitutional or not is if it is PERSUASIVE. this is beyond ironic, alanis. the whole point of allowing dissenting, offensive, hateful, controversial, etc. ideas to be expressed is that (the theory is) in the long run, the CORRECT ideas win in the marketplace of ideas. iow, we don't need govt. to be the guardian of what is true and what isn't.

some countries,like canada and the UK, that do criminalize ideas (like canada's criminalization of public holocaust denial), don't even claim that the CONVINCINGness of speech is a test for legality.

so, i guess in patrick's eyes, one can criticize HUD, as long as one does not do so convincingly?

i also take issue with thomas' post about quakers. what is special about quakers such that they could not be plotting terrorist acts? before you answer that, let me say that I went to a quaker school, and have spent literally hundreds of hours in quaker meetings. sure, quakers are SUPPOSED to be pacifists, but if richard nixon can be a 'war monger' (he was a quaker) quakers can also be terrorists.

the idea that quakers can't be terrorists is like the idea that priests can't be pedophiles. i mean the catholic code prohibits priests from having sex at ALL, and definitely not with children. so, clearly no priest could commit pedophilia any more than a quaker could plan, assist, or commit a terrorist act (rolls eyes)
11.8.2006 4:50pm
JT Wenting (mail):
If your socialist AND black (and preferably female and lesbian as well) it lasts indefinetely.
Opposing him/her will cause automatic arrest for racism, sexism, and everything else the prosecution can think of. Denying those charges of course will be admission of guilt, as contradicting a black, lesbian, female, socialist is proof positive of your racist, sexist, attitudes and therefore quite condemning.
No trial needed, automatic death sentence without appeal (see above as to why an appeal would only make matters worse).

It's 1984, coming to a community near you soon.
11.8.2006 4:50pm
DavidBernstein (mail):
BU, you are apparently upset about the fate of the MCRI, and are taking it out on the messenger; my posts evince no strong position on the MCRI, except that it's constitutional, and as the law of the state it should be obeyed. As for Patrick, if you noticed I'm quoting from a book I wrote several years ago, which was on a particular topic on which I happen to be an expert. I don't know much or care much about Mass. politics (I didn't even know Patrick ran for gov. until this morning), but I know a lot and care a lot about the interaction between antidiscrimination laws and the First Amendment.
11.8.2006 4:52pm
magoo (mail):
"....one of the dumbest, and scariest, interpretations of freedom of speech I've ever seen from a person in a position of federal authority."

Yeah, Deval Patrick, and then Joe McCarthy, and then the Alien and Sedition Acts....that sounds about right
11.8.2006 4:54pm
David M. Nieporent (www):
Criticize him all you want. But why not focus on current, relevant issues?
The fact that he has a history of attacking free speech isn't current and relevant? Is there a statute of limitations on being a censor?
11.8.2006 4:56pm
Dave Hardy (mail) (www):
Yeah, Deval Patrick, and then Joe McCarthy, and then the Alien and Sedition Acts....that sounds about right

Remember there are young pups on this board, who may not remember. I, on the other hand, was happy to vote to throw the beggars out in the '00 elections, and send Adams back to the People's Republic of Massachusetts.
11.8.2006 5:25pm
j..:
I don't have your book (no comments from the peanut gallery, please), but I just wanted to point out for the online community that a more full version of the Patrick quote (with citation) is available in David's paper Antidiscrimination Laws and the First Amendment, which is from a quick google search (see text surrounding FN 265).

For what it is worth, I found Patrick to be one of the more energizing candidates in a long time. A good speaker, and positive campaign (generally), and a energizing personality. In all events, Healey was DOA.
11.8.2006 5:25pm
MAresident:
The legal community seemed to support Partick strongly after the Republican candidate suggested in a TV add that lawyers were unfit to hold the office. MA Lawyer's Weekly endorsed Patrick -- Its first gubernatorial endorsement ever.
11.8.2006 5:28pm
J. F. Thomas (mail):
the idea that quakers can't be terrorists is like the idea that priests can't be pedophiles. i mean the catholic code prohibits priests from having sex at ALL, and definitely not with children. so, clearly no priest could commit pedophilia any more than a quaker could plan, assist, or commit a terrorist act (rolls eyes)

Bernstein is getting all bent out of shape because Civil rights lawsuits were filed against groups that tried to block half-way houses. He seems to think these were serious violations of the groups' first amendment rights, "one of the dumbest, and scariest, interpretations of freedom of speech I've ever seen from a person in a position of federal authority" in fact. I was merely saying that the current administration has been spying on peaceful groups and denying detainees the right to speak with their lawyers. I think both are much more scary infringements on the freedom of speech.
11.8.2006 5:28pm
Houston Lawyer:
Deval Patrick's position in suing people for voicing their opinion to their local governments is the most unAmerican position I have ever seen taken by a government official. If you disagree with his position, he will bring suit to shut you down. There is no statute of limitations on fascist behavior.
11.8.2006 5:41pm
Fub:
Dave Hardy wrote:
Remember there are young pups on this board, who may not remember. I, on the other hand, was happy to vote to throw the beggars out in the '00 elections, and send Adams back to the People's Republic of Massachusetts.
How could that be? Karl Marx wasn't even born yet. It's all a blur now, but I remember that much.
11.8.2006 5:51pm
donaldk:
Patrick showed himself to be an ideal bureaucrat-tyrant. God help the defendants if they hadn't the money to fight this ridiculous case to the Court of Appeals.

This is the kind of public servant you can expect next time you elect a Democrat president.
11.8.2006 5:56pm
BU06:
Thank you j.

That was all I was asking for- a complete version of whatever Patrick said. I think those that read it will agree that the full text of what Patrick actually said is very different than how the post construes it.

Bernstein: I could care less about MCRI. I was just using that post as an example of how your posts can be construed as hack jobs. You selectively used comments made by Coleman to make a point on one of your repeat topics, the premise of your post was eventually debunked by a comment, you were asked to amend, and you haven't.
11.8.2006 5:56pm
DavidBernstein (mail):
BU, I reprinted Coleman's comment suggesting that she may not intend to obey the law, and I've consistently said that universities should obey the law when it comes to AA. I then reprinted another comment where Coleman makes clear that she intends to pursue legal action rather than obey the law, which is certainly legitimate if she can come up with a plausible theory, which I doubt. This all seems well within the norms of public discourse.
11.8.2006 6:28pm
Xmas (mail) (www):
You have to give Deval props though for not going negative when Healey was going full-bore with attack ads.

It'll be interesting to see what he does as Governor of MA. We've had not but Republicans in the Governor's office for damn near 16 years now. Weld, Cellucci, Swift, Romney. (I felt bad for Swift, she was put through the wringer.)
11.8.2006 6:37pm
Constantin:
Hey J.F, you forgot to mention Halliburton and that Bush is a chimp in your post. You did seem to cover the rest of the bases, though. And all of them were way relevant to whether the governor-elect of Massachusetts might not be a First Amendment champion.
11.8.2006 6:53pm
AyaK:

That was all I was asking for- a complete version of whatever Patrick said. I think those that read it will agree that the full text of what Patrick actually said is very different than how the post construes it.

Uh, no. Here's the full quote from Governor-elect Deval Patrick:

The problem wasn't the repugnant views expressed in leaflets and court filings; they were mere instrumentalities in a concerted effort to coerce and intimidate the seller in violation of the Fair Housing Act and Texas law.

Baseball 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.

The second paragraph was reprinted in full in Bernstein's post above. The first paragraph of the quote makes it clear beyond any doubt that Deval Patrick actually believes (or, at least, believed, before his legal theory was blown to bits by courts) that the Fair Housing Act trumps the First Amendment to the U.S. Constitution, which is exactly what Bernstein stated.

And how disturbing it is that he equated trying to change government policy through free speech to the use of physical violence even after the Clinton Administration had stood up for the First Amendment? He's not going to have Bill Clinton to rein him in any longer.

Sorry, BU06, but Deval isn't a knight in shining armor. Like all of us, he has his warts ... and distorting his record to defend him doesn't do him any favors. Some of us in Massachusetts hope that he's learned from his blunders.
11.8.2006 7:08pm
Steve:
Saying that Patrick is an "enemy of the First Amendment" who has "little understanding of, or sympathy for, free speech" certainly doesn't call to mind any of the harsher anti-Bush rhetoric that one sees around the Internet.
11.8.2006 7:20pm
Harry Eagar (mail):
Holy Toledo! It ought to be hard to believe that anybody would go before a court and say that Congress meant to proscribe free speech. But then, there's the law about protesting at abortion clinics, and even the Supreme Court swallowed that one.
11.8.2006 7:46pm
A. Zarkov (mail):
"As scary as DOJ arguing that detainees telling their lawyers about the interrogation methods used on them would be revealing state secrets or spying on Quakers because they might be plotting terrorist activities?"

Scarier because the opposing interest does not involve national security in any way. When fighting a war we sometimes make compromises. In the matter of The Berkeley Three there was no need whatsoever to compromise free speech.
11.8.2006 8:13pm
PersonFromPorlock:
On the bright side, though, this is Massachussetts, where people only say the right thing anyway.
11.8.2006 8:43pm
Backing BU (mail):
To call a newly elected official 'dumb' is very agressive. Considering that person is the first Black governor of the state of Massachusetts and this a widely circulated weblog is completely un-necessary. Has Mr. Bernstein called anyone else 'dumb' recently? I believe poor choice of words.
11.8.2006 11:18pm
whit:
"I was merely saying that the current administration has been spying on peaceful groups and denying detainees the right to speak with their lawyers. I think both are much more scary infringements on the freedom of speech"

first of all, if u are surveilling ANY group, as long as you are in a place the public has a right to be blah blah blah, there are no search and seizure, or constitutional issues.

furthermore, the issue was - WERE they peaceful groups. i constantly see on leftie blogs that it is just absurd that we could be spying (or surveilling) QUAKERS?!?!?!?!

there's almost a sort of soft bigotry here. clearly, ALL quakers are such pacifist ninnies that they all MUST be peaceful and incapable of aiding, assisting, or committing terrorism.

clearly, that is NOT true. if the surveillance turned out to reveal this group WAS peaceful, then groovy. and LEO's move on. you really can't win with this mindset. if you are not proactive (like we WEREN"T prior to 911), then you are to blame for not stopping it before it happened. if you ARE proactive, then every lead that turns out to be negative (as MOST leads in law enforcement do), you were wrong to look into it in the first place.

the only way to prevent terrorist acts (or any inchoate offense) is to investigate, often based on slim leads, etc. and in many cases the leads turn out to be nothing.

that's how law enforcement and investigation works.

but just because somebody is a quaker, or CLAIMS to be a quaker does not make them structurally incapable of violent acts.

so, this is the logic . LEO gets a tip regarding a quaker group. agent in charge tells them "don't investigate quakers. they cannot be terorrists. its impossible". group does turn out to be terrorists, and blow up a building or whatever.

would you blame Law enforcement in that case? i would. better to investigate and CLEAR a possible lead, then discount it.

i worked undercover for years. TONS of leads turned out to be bogus. welcome to the real world.
11.8.2006 11:40pm
RSF:
"To call a newly elected official 'dumb' is very agressive."

"Patrick's baseball bat analogy is one of the dumbest, and scariest, interpretations of freedom of speech"

DB didn't claim he was dumb. He said it was a dumb analogy. Totally different. I can say that your argument is stupid (misleading would probably be more appropriate) and that certainly doesn't mean I am claiming that you are stupid.
11.8.2006 11:49pm
Ralph Phelan (mail):
Too bad you didn't turn this up two weeks ago!

(Though I gotta ask, didn't Healy have any oppo researchers who had heard of Google?)
11.9.2006 8:50am
Kevin P. (mail):

To call a newly elected official 'dumb' is very agressive. Considering that person is the first Black governor of the state of Massachusetts and this a widely circulated weblog is completely un-necessary.

Undoubtedly, you would never call President Bush dumb. Ever.

Just to remind you, elected and unelected officials report to us, not the other way around. If they can't take the heat, they should get out of the kitchen.
11.9.2006 9:01am
dk35 (mail):
That was all I was asking for- a complete version of whatever Patrick said. I think those that read it will agree that the full text of what Patrick actually said is very different than how the post construes it.


Uh, no. Here's the full quote from Governor-elect Deval Patrick:


The problem wasn't the repugnant views expressed in leaflets and court filings; they were mere instrumentalities in a concerted effort to coerce and intimidate the seller in violation of the Fair Housing Act and Texas law.

Baseball 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.


Uh, yes. The first paragraph (the one that DB left out) clearly (to me, anyway) shows that Patrick was not making the argument that the leaflets, in and of themselves, were a problem. Patrick seems to have been making an argument that the leaflets were one example of a larger pattern of intimidation. Now, as with all fact specific arguments, it is difficult to make a decision on the merits unless one actually has the facts. Maybe there was a larger pattern of intimidation, maybe there wasn't. That was for a judge to figure out.

DB, it seems, never bothered to present the facts. Instead, in this particular example, he took a partial quote out of context to serve as an example for his polemic. I'd have to say that is an example of "dumb" and "scary[]" legal analysis. (And before anyone criticize me for that last sentence, please note that 1) DB uses the same terms for Patrick's writings, so they are fair game and 2) as RSF points out in the comment above by analogy, I'm not saying DB is dumb and scary, just his legal analysis. So, no cries of ad hominem please).
11.9.2006 9:13am
Stacy (mail):
"Uh, yes. The first paragraph (the one that DB left out) clearly (to me, anyway) shows that Patrick was not making the argument that the leaflets, in and of themselves, were a problem."

How do you figure? He talks about the leaflets being "instrumentalities" in what he calls a campaign of coercion and intimidation (I'm not familiar, so let's just take his word for that) and then says that baseball bats are "also" a dual-use item that becomes a weapon when used in a similar context. It seems to me that the hair he's splitting is the language in the leaflets, versus the act of distributing the leaflets. Which is even worse because he's separating out the _act of speaking_ and calling it criminal. I might have used a word like "ignorant" instead of "dumb", because nobody who understands the Bill of Rights could possibly make such an argument in a US court. If he actually believes that argument, then he is objectively opposed to free speech and DB's analysis is right on.
11.9.2006 10:41am
DavidBernstein (mail):
For the record, of course Patrick is smart, but that doesn't mean his argument can't be dumb. Smart people make stupid arguments all the time. And commentors who want to serve as the p.c. police and protest any time one criticizes an elected official who happens to be black aren't doing anybody any favors.
11.9.2006 10:55am
Chumund:
Of course, sometimes the "act of speaking" can be unlawful, such as in the case of obscenity, unlawful threats, conspiracies, defamation, and so on. And they can always be used as evidence of unlawful intent (as opposed to as predicate acts).

And again, this really reminds me of the Noerr-Pennington issue. For those who aren't familiar with it, the Noerr-Pennington doctrine basically says that because of the First Amendment, the federal antitrust laws do not apply to petitioning activities, even when the motive of the activity is anti-competitive. So, for example, you can petition the government to give you an exclusive franchise even though that would create a monopoly. And this basic idea has been applied to other sorts of federal laws.

But there are exceptions to Noerr-Pennington, usually lumped together under the general label "the sham exeception". The basic idea is that the First Amendment will not shield petitioning activites where the goal is to use the petitioning process itself--as opposed to succeeding on the merits of your petition--to create an anti-competitive effect (or a similar unlawful effect in other contexts). So, for example, although Noerr-Pennington covers lawsuits as a form of petitioning actitivity, you cannot repeatedly bring baseless lawsuits against a potential competitor in an attempt to deter them from competing. And as an aside, once you have established predicate acts that fall within the sham exception, you can use other acts which would not themselves be unlawful to help prove anti-competitive intent.

Anyway, it seems to me that Bernstein's description of this statement has not yet been justified, because depending on the circumstances there could have been an applicable exception to the First Amendment, and in any event protected acts can be used as evidence of intent as long as there was some other unprotected predicate act. Further, even if it turns out there were no applicable exceptions in this case according to the court, if Patrick thought one the recognized exception did apply, then his position may merely have been wrong, as opposed to being "dumb" and "scary".

In general, I see this all too often. When it comes to legal matters, people can sometimes just be wrong. They don't always have to be something worse.
11.9.2006 11:16am
magoo (mail):
"And commentors who want to serve as the p.c. police and protest any time one criticizes an elected official who happens to be black aren't doing anybody any favors."

Can you identify a commenter fairly characterized as one who "protest[s] any time one criticizes an elected official who happens to be black"? Aren't the comments above more fairly described as criticizing a perceived (rightly or wrongly) proclivity for singling out black leaders for criticism? Or were you just giving us an example of your prior statement about smart people making dumb arguments?
11.9.2006 11:18am
whit:
"Of course, sometimes the "act of speaking" can be unlawful, such as in the case of obscenity, unlawful threats, conspiracies, defamation, and so on. And they can always be used as evidence of unlawful intent (as opposed to as predicate acts)."

america (pretty much the only country left) draws a clear distinction between expressing OPINION and things such as threats, etc.

clearly, this HUD example is one of expressing an opinion and trying to persuade. In canada, the UK, etc. that can be often illegal (since they don't have a 1st amendment and criminalize all sorts of opinions) but here in the US it is not. Even defamation, which is not a crime, but is civilly actionable, it has to be proven that what you said is false, and you should have basically known so.

So, i really don't see the analogy between the above examples, and the HUD example, which basically comes down to criminalizing people's expression of their OPINION, which is the exact kind of speech that the first amendment was designed for and which deserves the highest protection. we are the last nation that still believes that.

if i make a threat, i think it is clear that this is not merely an expression of an opinion, etc.

if i say HUD should be abolished, or this proposal is bad, or whatever, that is not at all relevant to threats, conspiracies, etc. imo.

i think the line becomes the most blurred when strong opinion is mixed with perceived threats, like the Nuremberg files case (that was originally prosecuted under RICO iirc).
11.9.2006 11:49am
whit:
"Of course, sometimes the "act of speaking" can be unlawful, such as in the case of obscenity, unlawful threats, conspiracies, defamation, and so on. And they can always be used as evidence of unlawful intent (as opposed to as predicate acts)."

america (pretty much the only country left) draws a clear distinction between expressing OPINION and things such as threats, etc.

clearly, this HUD example is one of expressing an opinion and trying to persuade. In canada, the UK, etc. that can be often illegal (since they don't have a 1st amendment and criminalize all sorts of opinions) but here in the US it is not. Even defamation, which is not a crime, but is civilly actionable, it has to be proven that what you said is false, and you should have basically known so.

So, i really don't see the analogy between the above examples, and the HUD example, which basically comes down to criminalizing people's expression of their OPINION, which is the exact kind of speech that the first amendment was designed for and which deserves the highest protection. we are the last nation that still believes that.

if i make a threat, i think it is clear that this is not merely an expression of an opinion, etc.

if i say HUD should be abolished, or this proposal is bad, or whatever, that is not at all relevant to threats, conspiracies, etc. imo.

i think the line becomes the most blurred when strong opinion is mixed with perceived threats, like the Nuremberg files case (that was originally prosecuted under RICO iirc).
11.9.2006 11:54am
DavidBernstein (mail):
If someone was implying a "proclivity" based on one criticism of one person for an issue that has nothing to do with him being black (I don't think I even knew that when I wrote You Can't Say That!), now that's a dumb argument.
11.9.2006 12:07pm
pireader (mail):
Professor Bernstein --

Your post and the working paper (Oct 2000) left me a bit confused; would appreciate clarification.

You start by hammering HUD, perhaps deservedly. But your post is about Deval Patrick, mainly based on his 1996 letter to the Washington Post defending the Justice Department's actions in Fort Worth.

Patrick's letter asserts that there was a "concerted effort to coerce and intimidate the seller [of property for the Fort Worth halfway house] in violation of the Fair Housing Act and Texas law."

Based on some cursory research, I believe the alleged coercion took the form of an allegedly "frivolous" and "discriminatory" lawsuit brought against the property's seller by neighborhood protestors. DoJ then brought a civil action against the protestors for the "coercive" lawsuit, not for the protestors' public utterances [leaflets, etc.]; but wanted to use the utterances as evidence of purpose and design.

If this is substantially accurate then is it your view:

(1) That Patrick got his facts wrong ...there was no coercion, solely a political protest protected by the First Amendment?

(2) Or that an (allegedly) frivolous lawsuit is itself protected by the First Amendment. as a form of political protest or as a petition to the government or both?

(3) Or that DoJ should not have used the protestors' public utterances as evidence, because those were uttered as part of a protest protected by the First Amendment?

(4) Or perhaps that I've mis-stated the fact situation?
11.9.2006 12:09pm
DavidBernstein (mail):
PL,

Patrick's letter to the Post suggested that the leaflets were not simply evidence of a conspiracy to violate civil rights, they were themselves an instrument of the conspiracy, just like a baseball bat can be the instrument of a conpiracy to violate housing rights (it would be very difficult to argue that the baseball bat would only be evidence that court filings are intended to violate rights!). It's been a long time since I looked at the case, but the DOJ must have kept arguing this, or the judge wouldn't have had to shoot the argument down. This is also suggested by his claim contended that "Congress intended the [Fair Housing Act] to proscribe any speech if it leads to discrimination prohibited by the FHA."
11.9.2006 12:29pm
DavidBernstein (mail):
Oh, and some of the HUD cases were directly based solely on clearly protected activity, but HUD's initial position was that the FHA trumps the First Amendment. When HUD backed down from this position, DOJ, acting under Patrick's orders, picked it up.
11.9.2006 12:37pm
Harry Eagar (mail):
Excuse me, but if the quotation 'Congress intended to proscribe' speech is accurate then all this bobbing and weaving makes no sense.

Congress is not supposed to go around proscribing speech. There might be some room for limited exceptions, but to extend those to landlord-tenant disputes is absurd.
11.9.2006 1:16pm
David Chesler (mail) (www):
That was a scary case (HUD) -- I was aware Patrick was running for governor but not that he'd been involved in the case. I wish I had.

It was an interesting election. Race was surprisingly never brought up, except to note that if Healey had won she'd have been the first woman elected to the position and Patrick is the first black elected to the position. (Mihos would have been the first independent elected, and Ross would have been the first independent fat lesbian elected.) I was pleasantly surprised, because there is still a lot of northern racism below the surface here.

The Herald noted that Jesse Jackson, a long-time Patrick supporter, was absent from this election, strategically.

As mentioned, Healey had a series of attack ads, one for Patrick's support of a convicted rapist who had asked for a DNA test, apparently even after the test proved him guilty, and another for his sentencing appeal on behalf of a cop-killer, suggesting that defense attorneys ought not be elected, which as MAresidnent said led to the Lawyer's Weekly endorsing him.

The Boston Herald's November Surpise was that Patrick was a big part of the group that decided not to prosecute Lon Horiuchi for the murder of Vicki Weaver.

I liked Healey for her better-then-the-others 2nd Amendment views, but I really had to hold my nose when voting for her (and almost went for Mihos) on the 6th Amendment. Lt. Gov. Healey was hurt by national anti-Republican feelings, and local anti-Romney feelings.

As it is, Patrick is extremely charismatic and intelligent and competent, but is a classic tax-and-spend liberal Democrat. This is going to be an interesting 4 years here.

Now that the election is over, race has become a much bigger deal. Some folks are hoping that this puts to bed the notion of Bostonians as rascists that has been a stain since the 1974 school busings protests, and His Excellency-elect, who has promised that he will serve out his term rather than going for higher office (unlike Mitt Romney and Bill Weld) is being treated like a black Barack Obama.
11.9.2006 1:41pm
Chumund:
whit,

You say, "[C]learly, this HUD example is one of expressing an opinion and trying to persuade."

So far, that is not at all clear to me, particularly in light of what pireader conveyed. Do you have another source for the facts of this case?

pireader,

That sounds like a classic Noerr-Pennington/sham-exception issue, and so far it doesn't seem like the DOJ was arguing anything outside the scope of accepted doctrine.

Professor Bernstein,

It seems to me you are overlooking what Patrick actually said about the metaphorical "bat". What he actually said is "we are going to use the bat as evidence of your intent to violate the civil rights laws." Now, you may think that doesn't make much sense as a metaphor. But his import is clear: he is talking about proving intent, for which purpose acts protected by the First Amendment can be used.

Moreover, the "bat" apparently refers both to leaflets and "court filings", as you note. And as we have been discussing, court filings CAN be used as predicate acts for federal law violations when they fall within the "sham exception". And I believe that the case law actually supports pleading other activities as part of a pattern of unlawful activity, even if on their own they would be afforded First Amendment protection.

So, I sincerely think that once you know about how the First Amendment has been applied to similar cases, this statement no longer looks so "dumb" and "scary", although perhaps Patrick may fairly be accused of using a pretty poor metaphor.
11.9.2006 1:55pm
magoo (mail):
"If someone was implying a "proclivity" based on one criticism of one person for an issue that has nothing to do with him being black, now that's a dumb argument."

Once again, professor, not a single commenter was arguing anything of the kind based on "one criticism." It's the cumulative effect, professor, as the comments made clear.
11.9.2006 2:25pm
DavidBernstein (mail):
Magoo, show me what commenter referred to any criticism I have made of any black person other than Patrick. Don't bother looking, there aren't any. The claim was rather, "you posted about [not even regarding the merits of!] the MCRI and you criticized a black person," so you are officially un p.c. and I'll not-so-subtly accuse you of racism.
11.9.2006 3:24pm
DavidBernstein (mail):
As in "Bernstein: You're in rare form today. Two posts on affirmative action and now a post taking a left-field shot at the first black governor in MA history {2nd in US history}. Nice."
11.9.2006 3:25pm
magoo (mail):
We're on the same wavelength DB (finally). No one was commenting on, as you put it earlier, a "one-time" criticism of someone who happened to be black. They were commenting on a pattern of posting on a single day, a pattern that some might find reflective of a large theme in your posts. In the past, when white students set up a booth to sell cookies at half price to blacks, you not only defended their 1st Am. right to do so (which I fully support), but you also gushed with celebration over this adolescent prank by hailing it as a "clever piece of street theater", with nary a word about its corrisive effect on the university's social fabric. On Martin Luther King Day, when other VC posters linked to sites documenting his heroic achievements, your favor us with a review of his ties to the Communist Party. As you say, "nice." And don't get me started on how you write about Arabs. I can't see into your heart, but ask yourself whether you treat people of color fairly.
11.9.2006 5:04pm
DavidBernstein (mail):
Umm, two post about affirmative action because the MCRI was in the news. Post about Patrick because I just noticed that he was elected governor. You're recollection of the MLK Day post is just false, and you should at least go back and look at it before you post nonsense. http://tinyurl.com/ynb6ta And I'm quite sure you'll never find me having said anything unpleasant about Arabs, who btw are no more or less "people of color" than my own wife and in-laws.
11.9.2006 5:33pm
DavidBernstein (mail):
I should add, Magoo, that all this likely shows your own prejudices, which is that you are inclined to believe that you are so certanly right that people who disagree with you must be not just wrong but morally evil, so you read things into posts, and even make up things in your mind which you are convinced happened, to justify your prejudices.
11.9.2006 5:37pm
DavidBernstein (mail):
"but you also gushed with celebration over this adolescent prank by hailing it as a 'clever piece of street theater', with nary a word about its corrisive effect on the university's social fabric."

The relevance of the "clever bit of street theater" remark was that the university claimed it could constitutionally close down the bake sale because it was "discriminatory." But it wasn't a true bake sale, it was "a clever bit of street theater," which it was, even if you disagree with it.

Anyway, an apology from you to me is in order, but I won't hold my breath.

As an aside, I take it that if the bake sale was "corrosive" you must think that AA is much MORE corrosive, because instead of a one-day bake sale, university officials are engaging in racial distinctions all year round with much more drastic consequences. No? Well, then what you are doing is trying to put AA opponents in the following bind: we'll engage in preferences, but if you point out the preferences, you are attacking minority students, and engaging in "corrosive" rhetoric.
11.9.2006 5:51pm
magoo (mail):
My apologies. You did not recite his ties to the Communist Party. You merely recited several other reasons why he shouldn't have a whole day named after him, and you made it crystal clear that you didn't necessarily agree with any of them, but you just wanted to stimulate an entirely detached, academic discussion of whether he was really worthy of a whole day, all to himself. And, of course, we all know you never say anything bad about Arabs. What was I thinking!

Take the last word on everything else. (you will anyway) It's really not worth the trouble.
11.9.2006 5:59pm
DavidBernstein (mail):
Thanks, Magoo, by making unsupported allegations, and then not graciously admitting you were wrong, but instead engaging in sarcasm and further vitriol, you have proven yourself to be a common troll.
11.9.2006 6:29pm
Stacy (mail):
So the idea is supposed to be that the leaflets and soforth aren't at issue in and of themselves, but are used to show intent to violate civil rights? I can imagine that being one of those things that makes sense to a lawyer. It is also an example of what I view as a serious weakness in the common law system--its tendency to act like a game of telephone wherein solid first principles evolve by a series of individually innocuous arguments into something absurd, like comparing NIMBYism to redlining.
11.9.2006 10:56pm
Chumund:
Stacy,

As an aside, as we discussed above, at least the court filings to which Patrick referred might be viable predicate acts under the sham exception to Noerr-Pennington, and the leaflets might be included as part of a pattern allegation even if they could not be predicate acts on their own.

Anyway, I don't see what is so absurd or unprincipled about using speech protected by the First Amendment as evidence of unlawful intent. Indeed, presumably this happens all the time. For example, if you say to a friend, "That bastard Chumund deserves to die!", your statement is protected by the First Amendment. But if the next day, you narrowly miss running me down with your car, the government could surely use your statement as evidence of criminal intent in a prosecution for attempted murder.

So, I guess I don't understand why you think this notion would only make sense to a lawyer. Rather, it seems to me that everyone understands that the things one says are often relevant to proving intent.
11.10.2006 9:39am
Stacy (mail):
Chumund, I see your point now and in the context in which you place it (evidence of intent) it makes sense. So I guess I concede your argument in some sense. Like Mr. Patrick however, your analogy involves a violent act, where what we're talking about with the leaflets seems to be peaceful and legal community activism (whatever we may think of the cause being championed)

So to take your analogy a step further, if I oppose your petition to build a halfway house for some reason and my view wins the day at the zoning board, I don't think it's reasonable to compare that to inciting a criminal act unless--maybe--both my stated reasons and the zoning board's cited reasons were based on prejudice and thus constituted illegal discrimination (but in that case the municipal government should be liable, not private citizens).
11.10.2006 12:47pm