The Volokh Conspiracy - 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.

	[David Bernstein, November 8, 2006 at 1:53pm] Trackbacks 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.