Protected Petitioning or Unlawful Retaliation? The Limits of First Amendment Immunity for Lawsuits Under the Fair Housing Act

Abstract

The goal of this article is to explore the sources and interpretations of petitioning immunity for lawsuits, and to suggest how the right to petition may be construed in the fair housing context to provide the proper deference to the First Amendment and to preserve the goals of the Act. This article addresses the two main competing standards that have been proposed for determining when a lawsuit violates the Act. The first, adopted by HUD, the Department of Justice, and a number of federal district courts, is the Supreme Court's ruling in Bill Johnson's Restaurants, Inc. v. NLRB ("Bill Johnson's").  The second, proposed in Congress in a series of bills, is drawn from Rule 11 of the Federal Rules of Civil Procedure. This article attempts to provide some comparison of the merits of these two standards within the context of existing First Amendment jurisprudence. 

Part I begins with a brief discussion of the relevant prohibitions on discrimination in the Act, its implementing regulations, and their interpretation by the courts. Special attention is given to the accumulating body of law dealing with the legality of local zoning rules and decisions which interfere with the siting and operation of group homes for individuals with disabilities, because those cases have provided a growing source of law regarding the status of lawsuits under the First Amendment. Part II traces the history of the right to petition and examines the interplay between the right to petition, the common law, and statutory limits on lawsuits. Part III examines the Supreme Court's decision in Bill Johnson's and the two-part test it sets forth, as well as the meaning and importance of the "illegal objective" exception. Part IV addresses the current attempts to chart a First Amendment policy for the Act by HUD, the courts, and Congress. Part V argues, in conclusion, that the Bill Johnson's standard is more suitable for application to the Act than a Rule 11 based approach. It further argues that the illegal objective rule is viable for fair housing cases, and it discusses the possible application of Bill Johnson's standard to cases involving suits enforcing discriminatory zoning rules or restrictive covenants.