A free speech case the Supreme Court should hear

Teresa Seeberger rented rooms in a house she owned in Davenport, Iowa. When Seeberger learned that her tenant’s fifteen-year-old daughter had become pregnant, she told the tenant that she and her daughter would have to leave. When the tenant asked why, Seeberger said: “You don’t even pay rent on time the way it is . . . now you’re going to bring another person into the mix.”

The eviction was legal because the local ordinance banning housing discrimination does not extend to landlords who operate on a scale as small as Seeberger did. However, the Davenport Civil Rights Commission determined that providing the truthful reason for the eviction violated a ban on statements that reflect discrimination on the basis of familial status (the applicable language of the Davenport ordinance mirrors the federal fair housing law). An Administrative Law Judge initially recommended nearly $50,000 in damages and fines against Seeberger.

The Iowa courts, including the state Supreme Court, agreed that Seeberger’s speech alone violated the law. However, the damages and fines were set aside because they were assessed on the basis of the eviction (legal) rather than the speech (deemed to be illegal).

Earlier this month, the Center for Individual Rights (CIR) filed a petition for writ of certiorari with the U.S. Supreme Court. It asks the Court to review the Iowa Supreme Court’s decision upholding the finding against Seeberger. (Full disclosure: I am a member of CIR’s board of directors).

It strikes me as outrageous that a landlord, or anyone else, could be punished for truthfully stating the reasons why she took a legal action. Indeed, I don’t believe the First Amendment permits the state to punish truthful statements of the reasons for illegal actions.

If an employer fires someone because of his race, the action is unlawful. If that employer says the discharge was due to race, it has made a statement against interest. However, it can’t be punished for its speech — only for its conduct.

The Davenport ordinance prohibits discriminatory advertising by landlords. That’s a valid restriction on speech because it serves an important interest. A “whites only” statement (for example) in an advertisement will discourage non-whites from seeking housing.

Seeberger, though, didn’t make her discriminatory statement in an advertisement to prospective tenants. She made it to a tenant she was evicting. Thus, the ban on discriminatory advertising doesn’t apply to her, and no valid state interest justifies preventing or punishing the speech she engaged in.

Seeberger was permitted to evict her tenants, but not allowed honestly to answer the logical question: “Why?” The city of Davenport required Seeberger to mislead her tenant or to remain silent in the face of her perfectly legitimate question. Such a requirement is not consistent with the First Amendment.

CIR’s petition gives the Supreme Court the opportunity to make this clear. By so doing, it will clarify the standards to be applied to “discriminatory speech” laws not related to discriminatory advertising or to any illegal transaction of any kind.

The case raises other questions that ought to be clarified — the line between commercial and non-commercial speech; the standard of review for “viewpoint discriminatory” regulation of commercial speech (if Seeberger’s speech is found to be commercial); and whether under Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (if that case is deemed to control), “preventing discriminatory statements” can be the government interest that justifies regulating speech.

The key point, though, is that the First Amendment does not permit the state to punish speech based solely on the point of view expressed, no matter how disagreeable state officials might find the speech. The state has no legitimate basis for punishing truthful statements about a lawful transaction.

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