Judge refuses to accept brief raising free speech issues stemming from “fair housing” case

I have written many times about how “regionalism” and its handmaiden “Affirmatively Furthering Fair Housing” (AFFH) are, in effect, an attempt by the left to dictate the way Americans will live. A scheme this radical is bound to produce strong local opposition. Therefore, though deeply disturbing, it’s not surprising that regionalism and AFFH have resulted in an attempt to tell an elected local official what he will say.

I described this development here, in a post about the federal effort to muzzle Westchester Country Executive Rob Astorino. Westchester County, New York is ground zero in the left’s push for its vision of regionalism. Under Democratic leadership, the County entered into a settlement with the Department of Housing and Urban Development. The County agreed to build 750 “affordable housing units,” 650 of which would be in municipalities with less than 3 percent African-American population and less than 7 percent Hispanic population.

It also agreed to advertise its affordable housing units to people living outside the County. The non-residents were to be lured into the County to try to ensure that the new housing units would be filled by the desired number of members of the HUD-preferred racial and ethic groups.

Under Astorino, the County has worked hard to build the 750 units. However, Astorino has been a strong critic of regionalism/AFFH. He caused particular discomfort for Democrats when he sought to bring Hillary Clinton, one of his constituents, into the discussion.

Accordingly, James Johnson, the “Federal Monitor” of the settlement agreement between the feds and Westchester County, has attempted to muzzle Astorino. Johnson’s attempt comes in the form of a report filed on March 17 in federal court. The report claims that Astorino has spread false information about Westchester County’s housing settlement and about the efforts and intentions of HUD and the Federal Monitor himself. I touched on the merits (or lack thereof) of this allegation in my original post.

As a remedy, the Federal Monitor seeks “the removal of press releases inconsistent with the declaration and findings” written by the Federal Monitor. He also calls for the hiring of “a public communications consultant that will craft a message and implement a strategy sufficiently robust to provide information broadly to the public that describes the benefits” of what HUD says it is trying to accomplish.

The Federal Monitor’s attempt to dictate speech strikes me as Orwellian and unconstitutional. That’s also how it struck the excellent Center for Individual Rights (CIR). Thus, CIR filed an amicus (friend of the court) brief raising these concerns.

CIR argued that “the federal courts should not act as political truth squads or censors of officeholders’ political utterances.” Because Astorino’s speech is classically political, it is entitled to the highest First Amendment protection. Yet the federal monitor seeks both to compel Astorino’s speech and to subject it to prior restraint. Stanley Kurtz describes CIR’s argument in more detail here.

Earlier this month, the court refused to accept the brief. Judge Denise Cote explained that CIR has no “unique perspective” beyond the expertise of Astorino’s current legal team.

That’s ridiculous. As Kurtz points out, CIR has a long and distinguished record of intervention in cases involving the First Amendment, federalism, and the separation of powers. It has thus developed expertise in these areas no county or municipal legal team can be expected to have acquired.

There is reason to fear that Judge Cote’s ruling signals a lack of interest in hearing about the obvious free speech concerns raised by the Federal Monitor’s extraordinary request. The fact that Cote denied CIR’s motion the same day CIR filed it hardly seems encouraging. Cote is a Bill Clinton appointee who has already ruled against Westchester County in related housing litigation.

Astorino’s legal team might well brief the First Amendment and related issues raised by CIS. However, unless Judge Cote grants it extra pages in which to write, the County may have to raise them in a truncated fashion.

The issues, though, deserve careful attention. I agree with Kurtz that CIR’s brief in defense of Astorino is an extremely important document in our national battle for free speech.

Moreover, Westchester County’s experience with HUD presents an extremely important lesson about regionalism/AFFH. Neither a “Federal Monitor” nor a federal judge can prevent this egregious federal overreach from becoming an explosive political issue, just as the forced busing of school children was 45 years ago.

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