Third Circuit: neighbors who criticized condo residents over emotional support dogs must face civil rights suit

In blog posts and comments, two residents of a Virgin Islands condominium complex criticized two other residents who were (in line with rights prescribed to them under federal law) keeping emotional-support dogs despite a no-dog rule in the complex. Among other statements, one or the other of the two said dog owners would be “happier in another community,” speculated that “diploma mill” paperwork could certify any canine whose owner cared to claim stress, suggested the complex should “lawyer up” and be prepared to go to court to defend its rule against “known violators,” and proposed the dog owners be “ostracized” by other residents.

The dog-owning residents sued the neighbors, along with the condo association and other defendants. They cited federal legal interpretations, which have since been buttressed by a regulation issued in the Obama administration, that hold it “hostile environment harassment” under the Fair Housing Act to make statements that “interfere” with another’s exercise of rights under the law.

Now the Third Circuit, as part of a decision resolving numerous issues about the case, reversed grants of summary judgment in favor of the two blog writers and ruled that they could properly be sued for damages for creating a hostile environment under the Fair Housing Act. It described as “harassment” various instances of their critical speech and noted that a single instance of harassing speech could give rise to liability under the law. It is not clear whether the parties raised, and the court did not make any gesture toward considering, whether some or all of the statements involved might be protected by the First Amendment, which is mentioned nowhere in the opinion. [Revock v. Cowpet Bay West Condominium Association et al., see relevant section VI, pp. 31-41 of opinion via John Ross, Short Circuit]

As Hans Bader of the Competitive Enterprise Institute has pointed out, the Ninth Circuit in 2000 slapped down federal officials for having investigated Berkeley, Calif. residents who had fought a housing project that they believed would bring mentally ill residents or recovering substance abusers (both protected as disabled under the Fair Housing Act) to their neighborhood. “It found this principle was so plain and obvious that it denied individual civil rights officials qualified immunity for” having investigated the citizens. That case [White v. Lee] would appear to stand for the proposition that the First Amendment provides robust protection for much speech that criticizes, opposes, and disparages others’ exercise of rights under the Fair Housing Act, and that the speech does not lose protection just because others regard it as retaliatory or discouraging to the exercise of rights.

More: Hans Bader, Scott Greenfield, and Eric Goldman, who got to the case before either of us.

13 Comments

  • What is the basis that keeping emotional support animals is “in line with rights prescribed to them under federal law“?

    Is that something this court determined? I thought that while service animals were permitted everywhere by law, emotional support animals had no legal definition and no official recognition under federal law. Has there been a recent change?

    • Fair housing act gives ESA’s protection. It’s total BS. Let’s hope the Trump admin does away with this.

      • Obviously u don’t have a dog or have gone thru a trauma that warrants having your dog around

      • No need to bother suing people who criticize your emotional support animal. Just follow the lead of Albert and his pet krait Adolphe in “We’re No Angels” (1955).

        When someone criticizes you for having an emotional support animal, just open the little wicker box and invite them to pet Adolphe and make friends.

    • According to this document on the Department of Housing and Urban Development website, emotional support animals are officially recognized with regard to the Fair Housing Act, but not the ADA.

      Comment: Proposed elimination of training component is inconsistent with the regulations implementing the Americans with Disabilities Act. Several commenters wrote that the applicable definition of the term ‘‘service animal’’ is contained in the Department of Justice regulations implementing the Americans with Disabilities Act (ADA) (42 U.S.C. 12101 et seq.). The commenters wrote that HUD regulations have never specifically defined the term ‘‘service animal.’’ Under the ADA regulations at 28 CFR 36.104, a service animal is defined as an animal ‘‘individually trained’’ to do work or perform tasks for the benefit of an individual with a disability. The commenters wrote that this definition covers both ADA claims and claims under Section 504, which HUD is responsible for enforcing. Also according to the commenters, by eliminating the training requirement, the proposed rule contradicts the ADA definition.

      HUD Response. The Department does not agree that the definition of the term ‘‘service animal’’ contained in the Department of Justice regulations implementing the ADA should be applied to the Fair Housing Act and Section 504. The ADA governs the use of animals by persons with disabilities primarily in the public arena. There are many
      areas where the ADA and the Fair Housing Act and Section 504 contain different requirements. For example, accessibility is defined differently under the ADA than under the Fair Housing Act and Section 504. ”

      Pet Ownership for the Elderly and Persons With Disabilities; Final Rule

    • Yes! The Supremes ruled on this over a year ago!

  • Not a lawyer and not going to read the whole of the fair housing act.

    I guess the big question would be, to whom does the act apply. One would think it governs the relationship between the property owner and the renter/buyer/lessor.
    So where do the bloggers enter the picture, and how is it that the act applies to them.

    • Gasman,

      Similar to employment discrimination laws which primarily governs the relationship between employer and employee, the FHA contains harassment and hostile environment provisions which can reach to conduct between renters/owners/lessors.

  • […] criticizing and challenging the dubious, if totally trendy, accommodation of needing a support gerbil rise to an actionable claim? You bet, they […]

  • Good post. Note that the name of the court decision is “Revock v. Cowpet Bay West Condominium Association.” The word “West” has been left out of the case name above.

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