Judge Rejects Brief Defending Astorino’s Free Speech

Published May 11, 2016

National Review Online

Last Thursday, May 5, U.S. District Judge Denise Cote of the District of Southern New York refused to consider a friend of the court brief presented by the Center for Individual Rights (CIR) on behalf of Westchester County Executive Robert Astorino, the nation’s most prominent local critic of the Obama administration’s housing policies. CIR’s brief argues that a “federal monitor” appointed by President Obama’s Department of Housing and Urban Development (HUD) is unconstitutionally attempting to interfere with Astorino’s First Amendment rights to free speech, and violating the constitutional principles of federalism and the separation of powers as well.

Although it is too early to say with certainty what the judge’s refusal to consider CIR’s brief means, this development raises real concerns. The case itself also tells us a lot about the threats to free speech in this country right now, and about the Obama administration’s stunningly radical housing policies.

I’ll get to the substance of CIR’s powerful brief on behalf of Astorino’s free speech rights below, and also to what the judge’s refusal to consider the brief might mean. But first consider some background.

The Obama administration’s housing policies are arguably its most radically transformative—and most underreported—policy initiatives. Obama’s Affirmatively Furthering Fair Housing (AFFH) rule spells the end of local government as we know it in the United States, and the creation of a federally-controlled “regional” system in its place.

If Hillary Clinton wins the presidency, AFFH will be fully entrenched and our federalist system will be a thing of the past. The federal government will force the zoning and planning policies of your locality to favor dense development, and Washington will begin to dictate where Americans live by race, ethnicity, and class. Suburbs and even towns and small cities will increasingly be turned into helpless satellites of large regional urban centers.

Obama, Hillary, and the Democrats understand perfectly well how dangerous this issue is for them politically. That’s why they’ve done everything in their power to keep their controversial changes to federal housing policy under the public’s radar. And now, as the Obama administration begins to put the final and most controversial elements of its housing scheme in place, and as Hillary seeks the presidency with her hometown of Chappaqua ground zero in the national battle over AFFH, an HUD-appointed official is trying to gag Robert Astorino. Will the federal courts go along with these efforts to silence Astorino? That’s what we’re beginning to find out.

Astorino is the Republican Executive of Westchester County, New York, where Bill and Hillary Clinton live. Westchester is also the site of the housing controversy that prefigures the sort of intrusive federal diktat that Obama’s new AFFH rule is about to impose on the entire country. The Obama administration pressed Westchester County under Astorino’s Democratic predecessor to sign a consent decree obligating the county to build millions of dollars of high-density low income housing at taxpayer expense, and then advertise that housing to minorities living outside of Westchester. In effect, the federal government is trying to annex Westchester to the greater New York metropolitan region.

Astorino has very publicly protested federal pressure on Westchester’s housing policies, and accuses the Obama administration of aiming to gut Westchester’s zoning regulations and force the county to build even more low income housing than the amount agreed to in the consent decree.

In a variety of ways, Astorino has taken his warnings national. A video of Astornio describing the Obama administration’s agenda for Westchester inspired two municipalities in New Hampshire to stop applying for HUD grants. (I myself have pointed to Westchester as a cautionary tale, and have called for municipalities across the country to stop taking HUD money.) Astorino even co-authored an article with Rep. Paul Gosar of Arizona using Westchester’s experience as an argument to pass Gosar’s amendment defunding Obama’s new AFFH regulation. And Astorino held a news conference outside of Hillary’s home in Westchester last July, calling on her to take a stand on the federal government’s interference in her own hometown.

It’s easy to understand why the Obama administration might want to silence Rob Astorino. He is single-handedly sparking a wave of local resistance to the administration’s housing policy, encouraging congressional opposition, and endangering Hillary Clinton’s election as well. But should the courts allow themselves to be used as a tool to silence one side in our political debates? CIR’s amicus brief says no.

The “federal monitor” appointed by HUD to enforce the consent decree signed by Astorino’s Democratic predecessor claims that Astorino has been making false statements in his various public speeches and OpEds about HUD’s agenda for Westchester. Astorino claims that HUD wants to dismantle Westchester’s zoning regulations and force it to build many more low income housing units than the number formally required by the consent decree. HUD denies Astorino’s claims and says, in effect, show us where we say “dismantle your zoning” or “build many more housing units than the consent decree calls for.”

But this is a trick. HUD avoids explicit demands for zoning changes, or for more low income housing units, for two reasons. First, by law HUD is prohibited from conditioning its funding on the abolition of local government policies. Second, HUD understands how politically dangerous it would be to openly try to abolish local zoning laws. So HUD takes an indirect route instead. It demands that local governments “analyze” their housing practices in such a way as to undercut traditional suburban single-family zoning laws. Then HUD refuses to approve grant applications that don’t include the sort of analysis and remedies HUD favors. In this charade, local governments only get HUD approval and HUD money when they “voluntarily” analyze and remedy their housing imbalances in a way that forces them to abolish traditional suburban zoning laws and build high-density low-income housing.

In other words, the process isn’t really voluntary at all. Federal money is held hostage to HUD’s policy prescriptions, even though HUD won’t admit to it.

All Astorino is doing is correctly exposing HUD’s real agenda. Yet the federal monitor claims that Astornio is lying about HUD’s intentions because he can’t produce a “smoking gun” confession of HUD’s ultimate policy aims. Ironically, it’s HUD that’s being deceptive and Astorino who’s telling the truth. Yet Astorino is in the dock for “lying.” As I’ve argued before, this would be like President Obama using a court to silence critics who claimed that, despite his denials, many Americans would lose their doctors under Obamacare.

The federal monitor wants the court to find Astorino guilty of lying, and to order him to remove any press releases inconsistent with HUD’s version of events from Westchester County’s official website.

The monitor also wants to force Astorino to communicate a court finding that he’s been making false statements to the various municipalities in Westchester County.

CIR’s powerful brief shows what a dangerous game HUD’s federal monitor is playing here. CIR explains that “the federal courts should not act as political truth squads or censors of officeholders’ political utterances.” Because Astorino’s speech is classically political, says CIR, 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.

CIR references a Supreme Court decision that held that even a political officeholder’s verifiably false claim could not be punished, given the powerful protection of political speech by the First Amendment. How much more so should Astorino’s political speech be protected, since his claims are anything but “verifyably false.” On the contrary, CIR shows that the federal monitor’s claim that Astorino is lying is itself not substantiated. CIR exposes the bogus tricks used by the federal monitor to make Astornio look dishonest. CIR also shows that Astorino’s claims about HUD’s zoning agenda have a perfectly substantial and reasonable basis. “If HUD does not have the agenda Astorino claims, says CIR, it manages to create the distinct impression that it does.”

The federal monitor’s request that the court force the removal of Astorino’s press releases from the official County website may at first seem rather modest. After all, Astorino can still speak and write freely outside of his official website. As CIR points out, however, HUD would use the court’s removal of press releases from the official county website to discredit Astorino in public debate. In doing so, HUD would be effectively silencing one of its most important critics.

To use the federal courts in this fashion, CIR points out, would be to violate the constitutional principles of federalism and the separation of powers. The courts should not allow themselves to be made into political allies of the executive branch in disputes with local government, or with Congress.

Although it’s too early to say for certain, it’s a matter of concern that Judge Cote has refused to consider CIR’s brief in this case. Judge Cote rejected the brief on the grounds that CIR has no “unique perspective” beyond the expertise of Astorino’s current legal team. I disagree. CIR has a long and distinguished record of intervention in cases involving the First Amendment, federalism, and the separation of powers. CIR has expertise on constitutional issues above and beyond that of Astorino’s legal team.

It’s still perfectly possible that Astorino’s legal team will incorporate some of the CIR’s arguments in its own case, and perhaps even prevail on those grounds. But there is another and more disturbing possibility as well. Once the free speech issue is introduced, it’s difficult to imagine that Astorino could lose this case. I suspect a finding against Astorino would have to be based on an attempt to distinguish his claims about HUD’s intentions from political speech. In effect, to find against Astorino, a judge would have to find that his many OpEds and public speeches on key public issues aren’t really political speech.

Such a distinction hardly seems legitimate. CIR’s brief, and even the federal monitor’s own report, give plenty of evidence that Astorino’s claims about HUD’s agenda have been made in classically political contexts. For a court to find that Astorino’s claims about HUD’s agenda are not really political speech would be to create a breach in the First Amendment that would ultimately nullify its force in our political debates.

This is speculation on my part, at this point. But this much I can say with greater certainty. The attempt by the federal monitor to silence Robert Astorino is deeply disturbing. This case is also a critically important test for the place of free speech in our political debates. And although it has not been formally accepted for consideration by Judge Cote, CIR’s brief in defense of Astorino is an extremely important document in our national battle for free speech. I look forward to CIR’s continued involvement in this case, should it reach a higher court.

More broadly, there is reason to worry that the shocking overreach of the Obama administration’s housing policies has opened a path to the curtailment of our most basic liberties, including the liberty of thought and discussion. It’s time for Americans to wake up to the comprehensive regulatory and judicial assault on their freedom that the Obama administration’s housing policies represent.

Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center. He can be reached at [email protected]

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