Can Blogging Violate the Fair Housing Act?–Revock v. Cowpet Bay West Condo Ass’n

[Note: as I declared almost a decade ago, I don’t do April Fool’s jokes.]

This case is a collision between dogs as emotional support animals and a “no dogs” condominium association rule. The civil rights implications of a “no pets” rule are pretty obvious; such a rule can exclude the disabled. At the same time, we know that emotional support animals can be overclaimed, and we also know that the tiniest of disputes in condo/homeowners’ associations can easily mushroom into the Apocalypse.

Two residents, Walters and Kromenhoek, had emotional support dogs authorized by their doctors (these were not “service dogs” as defined by the statute, though the plaintiffs called them service dogs). As you can imagine, other condo residents are not OK with the facial violation of the condo rules. Talkington blogged about the situation, and he and another resident Felice repeatedly complained about it for months. The condo association board voted to fine Walters and Kromenhoek for violating the “no pets” rule but later reversed the fines. The appeals court says: “As a matter of law, Cowpet may have refused a reasonable accommodation by declaring Walters and Kromenhoek in violation of the ‘no dogs’ rule, by fining them fifty dollars a day or through undue delay.” However, fact issues precluded summary judgment.

Walters and Kromenhoek sued Talkington and Felice for alleging violating 42 U.S.C. § 3617, which says: “It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.”

Regarding Felice, “Felice posted at least nine harassing messages, over a period of more than five months, from October 2011 through March 2012. All of these writings were made public on the Internet. Felice continued his postings even after Walters responded, on the blog, that she was ‘mortified, that my personal business has been laid out over the internet without my permission or forewarning.'” The court says the matter should go to trial: “A reasonable jury could find that Felice’s harassment was sufficiently severe or pervasive as to ‘interfere’ with Walters and Kromenhoek’s fair housing rights under 42 U.S.C. § 3617. A reasonable jury could also infer that there was a causal connection—that Felice engaged in harassing conduct ‘on account of’ Walters and Kromenhoek’s exercise of their fair housing rights.”

Regarding Talkington (citations omitted):

Talkington named Walters and Kromenhoek and made public and derided their requests for accommodation of their disabilities. He posted that “Barbara[] [Walters] has a dog and claims to have ‘papers’ that allow her to have it.” He wrote that Walters “has a pet and should be fined.” Talkington posted an email from Harcourt to both Walters and Kromenhoek stating that they were in violation of the “no dogs” rule. Talkington wrote that Walters and Kromenhoek were “known violators” and that their emotional support animals were “illegal neighborhood puppy dogs.” He wrote that Walters and Kromenhoek’s certifications for their emotional support animals were issued by disreputable websites without “verify[ing] either the animal’s credentials or the purported disability.” He suggested that Walters and Kromenhoek obtained their emotional support animal certifications from “diploma mill[s]” that would accept “stress” as a disability. Talkington wrote that Cowpet should “go on the offensive” and sue Walters and Kromenhoek. He explained that this would force them to “spend[] their own cash,” and “the rubber will meet the road on how far everyone is willing to go on this issue.”

The court says that creates triable fact issues too:

Overall, Talkington posted numerous harassing blog posts and comments over more than five months. He posted these comments publicly on the Internet. He continued to do so after Walters expressed her “mortifi[cation]” that her need for an emotional support animal was made public. We hold that there are genuine disputes of fact over the inferences that can be drawn from Talkington’s blog posts. A reasonable jury could find that his conduct constituted harassment that was sufficiently severe or pervasive as to “interfere” with Walters and Kromenhoek’s fair housing rights. A reasonable jury could also find that there was a causal connection between Talkington’s conduct and Walters and Kromenhoek’s exercise of their fair housing rights.

The words “free speech” and “First Amendment” do not appear in the opinion once. Although the Virgin Islands doesn’t have an anti-SLAPP law, the words “petitioning” or “SLAPP’ never appear in the opinion either. Yet, Talkington and Felice were discussing issues of significant interest to their local community (the “no dogs” policy) as well broader social issues (dogs as “emotional support animals”). They were also discussing if and how the condo association should enforce against a facial violation of the condo rules. Whether or not Talkington and Felice had exclusionary intent, the First Amendment creates some space for them to publicly vet these important issues. Without any analysis of the First Amendment in the opinion, we’re left to speculate how Talkington and Felice could publicly discuss these issues without violating 3617. Instead, in the conflict between civil rights and civil liberties, the court overrode the free speech and petitioning rights of Talkington and Felice to protect the civil rights of other community members.

Case citation: Revock v. Cowpet Bay West Condominium Association, 2017 WL 1192202 (3d Cir. March 31, 2017)