Seeberger v. Davenport Civil Rights Commission

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“You can’t handle the truth!” So says Jack Nicholson’s cantankerous Colonel Jessup inA Few Good Men upon the prosecutor’s needling inquisition into the death of a young Marine. So also say the paternalistic officials of Davenport, Iowa to tenants who seek to learn whether their eviction was motivated by what they would consider to be a good or bad reason. The Supreme Court has long held that “hurtful” speech—even outright hate speech — shares the same level of First Amendment protection as a friendly greeting. Two years ago in Matal v. Tam, the Court summarized the law thus: “Speech may not be banned on the ground that it expresses ideas that offend.”

Well, Iowa courts seem to disagree with the U.S. Supreme Court. Theresa Seeberger of Davenport leased a single-family residence to Michelle Schreur and her 15-year-old daughter. After a history of late payments and other bad feelings, Seeberger finally decided to evict the two when the daughter got pregnant. When Schreur asked for the reason for the eviction, Seeberger listed some general grievances and then said that “[n]ow you’re going to bring another person into the mix.” While there are no local laws against evicting tenants for this reason, Davenport prohibits landlords from informing evictees of potentially discriminatory reasoning (family status being a protected category for this purpose). The Iowa appellate court upheld fines (in the tens of thousands of dollars) that the Davenport Civil Rights Commission imposed on Seeberger, reasoning that her statement to Schreur was “commercial speech” and that the law prevents “landlords from subjecting prospective tenants to the stigmas associated with knowingly being discriminated against.” The Iowa Supreme Court allowed that ruling to stand.

But the government can’t use its desire for politeness as a weapon to “protect” residents from an offensive or derogatory opinion, especially in areas as important as eviction. Prodded by certain voices in the academy, a growing segment of the American public believes that the First Amendment does not in fact protect “hate” speech (whatever that means). This despite a long line of Supreme Court opinions that protects, among other things, callous protests near a fallen soldier’s funeral, the hurtful exclusion of gay organizations from a St. Patrick’s Day parade, and neo-Nazi marches designed to intimidate Holocaust survivors. We doubt there is anything different about the “commercial” context that should allow for the restriction of speech far less offensive than some of the things said in the non-commercial marketplace of ideas.

Laws that stop us from telling the truth strike at the heart of the First Amendment and foreshadow a brave new world in which a paternalistic and inevitably puritanical state determines to prohibit that which offends, upsets, disgusts, hurts, demeans, insults, stigmatizes, or, dare we say, “triggers.” Cato has thus joined with the Hamilton Lincoln Law Institute to file an amicus brief in support of Seeberger’s petition for review by the U.S. Supreme Court, seeking reversal of a state court ruling that undermines core tenets of First Amendment jurisprudence.

Far from protecting the Schreurs of the world from the “stigmas associated with knowingly being discriminated against,” statutory prohibitions against informing tenants of discriminatory motivations behind their eviction can only do more harm than the truth — depriving people of an honest answer to a very basic question: Why are you terminating my lease?