PRIOR HISTORY:  [**1]  Appeal from the United States District Court for the Northern District of California. D.C. No. CV-95-01757-MHP. Marilyn H. Patel, District Judge, Presiding.

DISPOSITION: AFFIRMED.

JUDGES: Before: William C. Canby, Jr., Stephen Reinhardt, Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Reinhardt.

OPINION BY: Stephen Reinhardt

REINHARDT, Circuit Judge:

This case involves the Fair Housing Act, 42 U.S.C. § 3601-3631, and the First Amendment. On November 1, 1993 a housing rights advocacy group filed an administrative complaint with an office of the U.S. Department of Housing and Urban Development (HUD) in San Francisco. The complaint alleged that three neighbors in Berkeley opposed the conversion of a motel into a multi-family housing unit because they believed that the project would bring people  [**2]  into the neighborhood who were mentally disabled or disabled through substance abuse. Upon receiving the complaint, the San Francisco HUD office initiated an eight-month investigation into the neighbors' activities and beliefs. During the course of its investigation, HUD officials questioned the neighbors under threat of subpoena about their views and public statements regarding the challenged project; directed them to produce an array of documents and information, including all involved parties' names, addresses, and telephone numbers and all correspondence or other documents relating to their efforts in opposition to the project; informed them and a major metropolitan newspaper that they had violated the Fair Housing Act; and advised them to accept a "conciliation proposal" that required them to cease all litigation and the distribution of "discriminatory" newsletters and flyers. The HUD officials in San Francisco recommended finding that the neighbors had violated the Fair Housing Act, but officials in Washington ultimately concluded that no violation had occurred and that the neighbors had engaged solely in activity protected by the First Amendment.

The three Berkeley neighbors  [**3]  then filed this civil rights action alleging that the investigation conducted by the HUD officials in San Francisco violated their First Amendment rights. The officials argue that they were required by the Fair Housing Act to investigate whether the neighbors had filed a lawsuit in state court with an unlawful discriminatory motive. At the very least, they argue, they are entitled to qualified immunity. The district court denied the officials' motion for summary judgment on the issue of qualified immunity, entered partial summary judgment in favor of the neighbors on the issue of liability, and dismissed as moot the neighbors' claim for declaratory and injunctive relief. Only the issue of damages remains for trial. n1 We affirm the district court in all respects.

BACKGROUND

A. Statement of Facts

The following facts are undisputed.

1. The Parties

Plaintiffs Alexandra White, Joseph Deringer, and Richard Graham  [**4]  are residents of Berkeley, California. White and Deringer are married to each other. Graham is their neighbor.

At all times relevant to this case, defendant Elizabeth Julian was the assistant secretary of HUD for Fair Housing and Equal Opportunity (FHEO). Defendant LaVera Gillespie was the director of the Regional Office of FHEO in San Francisco ("the San Francisco Office"). Defendant Paul Smith was the San Francisco Office's investigations branch chief. Defendant Russell Bruce Lee (now deceased) was an investigator, and defendant Robert Zurowski was an investigator-conciliator. Defendant John Phillips was special assistant to the HUD regional administrator.

2. Conversion of the Bel Air Motel

On May 12, 1992, a local nonprofit housing developer, Resources for Community Development (RCD), applied for a use permit from Berkeley's Zoning Adjustment Board. RCD sought to convert the Bel Air Motel, a property on University Avenue, to a multi-family housing unit for homeless persons. The use permit required approval by both the Zoning Adjustment  [*1221]  Board and the Berkeley City Council.

The plaintiffs lived close to the Bel Air Motel and were opposed to its proposed conversion. They expressed their opposition in a variety of ways. They wrote to the Berkeley City Council, spoke out before the Zoning Adjustment Board and at other public meetings, and published a newsletter with articles critical of the project. The front page of the February 1993 issue of the plaintiffs' newsletter, Flatland News, for example, contained an article titled "City Forcing Bel Air Project Down Our Throats." The plaintiffs discussed their opposition to the project with the local press and attempted to persuade merchants on University Avenue to oppose the Bel Air project also.

The Zoning Adjustment Board granted RCD its use permit on October 1, 1992. An appeal to the Berkeley City Council failed, by a 4-4 vote, in April 1993. That same month, a coalition in which plaintiffs were involved ("the Coalition of Neighborhood Groups Opposing the Bel Air Conversion") filed a lawsuit against Berkeley and RCD in state court. Plaintiff White verified the complaint. It alleged that one of the Zoning Adjustment Board's members, Linda Maio, was also a member of RCD's board and, because of this conflict  [**6]  of interest, improperly participated in the Zoning Adjustment Board's hearings. On April 19, the coalition moved for a preliminary injunction to prevent the issuance of an effective use permit. The Alameda County Superior Court denied the motion and set the case for trial on November 15, 1993. Although RCD's use permit became effective in May 1993, the developer thereafter experienced difficulty obtaining promised funds for the project from Berkeley and had to seek repeated extensions from other funders.

The Superior Court entered final judgment against the plaintiffs' coalition on February 3, 1994.

3. HRI's Complaint to HUD

Marianne Lawless (now deceased) was the executive director of Housing Rights, Inc. ("HRI"), a Berkeley housing rights advocacy group. She had testified at a hearing in support of the Bel Air project. On October 15, 1993, Lawless wrote a letter to the San Francisco Office stating her intention to file a HUD administrative complaint against the plaintiffs. Lawless attached a letter dated October 12 from the executive director of RCD to the Housing and Civil Enforcement Section of the Department of Justice complaining about the plaintiffs' opposition to the  [**7]  Bel Air project. n3 Lawless also attached several flyers and other documents which, she stated, "demonstrate the discriminatory scare tactics used by the opponents." n4

A HUD complaint intake analyst in the San Francisco Office (not a defendant here) spoke with Lawless about her complaint. The analyst wrote in a memorandum that "Ms. Lawless stated that these named residents, also known as the 'Coalition of Neighborhood Group Opposing RCD Plan for the Bel-Air Conversion[,]' is [sic] a very vocal group who stand firm in their belief that the homeless persons moving into the area will be undesirables who are mentally disabled or disabled through substance abuse."

The analyst concluded that HUD had jurisdiction and should accept Lawless's complaint for processing, and a supervisor concurred. On October 26, the intake analyst drafted an administrative complaint against the plaintiffs on Form HUD-903. Boxes on the form were checked indicating that HRI had been "intimidated, interfered [with], or coerced . . . to keep [HRI] from the full benefit of the Federal Housing Law" and that the plaintiffs had engaged in discrimination on the basis of mental handicap. The complaint included the following statement written on HRI's behalf:

 We are a fair housing agency in the city of Berkeley. As such, one of our missions is to ensure equal opportunities  [**9]  for all persons. The above named respondents have impaired our ability to ensure equal housing by impeding the proposed conversion of the Bel Air Motel to permanently house low-income homeless persons. One of their principal arguments against this project is that it will benefit people that are diagnosed as mentally disabled or disabled through substance abuse. Although the respondents unsuccessfully attempted to obtain a preliminary injunction against the developer acquiring a use permit, they have been given a trial date for November 15, 1993. We believe the above named individuals are blocking the proposed project because they perceive the primary residents of the facility will be the mentally disabled or the disabled through substance abuse.

4. The San Francisco Office's Investigation

In early November 1993, the San Francisco Office sent letters to White, Deringer, and Graham. The office enclosed HRI's complaint and stated that the plaintiffs could file an answer within ten days. HUD, the letters stated, would "commence an investigation of  [**10]  this complaint, and simultaneously encourage all parties involved to conciliate the matter." If conciliation failed and HUD's investigation produced "evidence to substantiate a finding that there is reasonable cause to believe that you have engaged in an unlawful discriminatory housing practice," HUD would issue a charge against them, at which point they would be exposed to certain penalties - including damages as great as $ 100,000 - and could elect to have their case heard by an administrative law judge or referred for trial in U.S. District Court.  The plaintiffs filed answers to the complaint on November 12.

Defendant Smith assigned the complaint to defendant Lee to investigate and defendant Zurowski to conciliate. On December 17, 1993, Lawless sent Zurowski a "Proposal for Conciliation" containing the following settlement terms:

1) That the above named respondents [White, Deringer, and Graham], and the Neighborhood Groups Opposing the Bel Air Conversion, cease all litigation against Resources for Community Development and the City of Berkeley regarding the development of the Bel Air Motel; and

2) That the above named respondents, and the Neighborhood Groups Opposing the Bel Air Conversion, cease publication of discriminatory statements (including articles in the CNA Newsletter) and fliers about the potential residents of the Bel Air project.

[a lengthy review of other developments is omitted here]

On June 24, Bryden wrote a letter asserting that HUD's investigation was an effort to chill the plaintiffs' constitutional rights. He asked that the investigation be terminated. Smith drafted a letter in response, which defendant Gillespie signed on July 14. This letter stated that "numerous court opinions" had established HUD's jurisdiction over the case:

 The Department has jurisdiction over all claims under the federal Fair Housing Act concerning land use and zoning. This jurisdiction has been recognized uniformly to extend to allegations that individuals have engaged in speech advocating  [**16]  illegal acts, including discrimination against persons based on their physical or mental disabilities.

The Complainant in the above case alleged that your clients advocated the denial by the City of Berkeley of a use permit to a nonprofit housing developer for the conversion of the Bel Air Motel to a homeless shelter because, among other reasons, the residents of the project would be mentally disabled. Evidence was produced during the investigation that your clients wrote news articles which referenced the mental disability of the intended residents of the proposed project as a reason for denial of the project.

Lee submitted a draft of the final investigative report to Smith on June 17, 1994. After further revisions by Smith and review by Gillespie, the San Francisco Office adopted the report and, on July 11, sent it and the entire case file to HUD headquarters in Washington. The report  [**17]  concluded that the plaintiffs had violated the Fair Housing Act and that there was reasonable cause to take further enforcement action against them. On July 22, 1994, the San Francisco Examiner reported that defendant Phillips had said "that HUD's preliminary investigation had concluded the three residents [White, Deringer, and Graham] had broken the law, but that it would be up to HUD and Justice Department attorneys to decide whether to prosecute."

5. Disposition of HRI's Complaint

For approximately two weeks Sara Pratt, the director of HUD's Office of Investigations in Washington, reviewed HRI's complaint and the San Francisco Office's report and case file. Finding that the file contained "little if any" information on the state-court lawsuit filed by the plaintiffs' organization, Pratt asked the San Francisco Office to obtain documents and information regarding that action.  [*1225]  ... Pratt concluded:

At the time the complaint was filed, on November 1, 1993, the lawsuit presented material questions of fact and/or of law and was not clearly frivolous. Moreover, the state court decision in the case, entered in February 1994, indicated that the lawsuit was premised on a reasonable basis in fact or in law (that is, that it stated a violation of a local ordinance) and, but for the "good faith" exception contained in state law, would have constituted a successful legal claim. The respondents' actions in instituting and prosecuting a lawsuit are thus protected by the First Amendment.

B. Proceedings Below

The plaintiffs filed their complaint in May 1995. They alleged that defendants Gillespie, Smith, Lee, Zurowski, and Phillips investigated  [**19]  and harassed them solely because of the exercise of their First Amendment rights to free speech and to petition the government for a redress of grievances. The plaintiffs sued these defendants in their official and individual capacities, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), and requested declaratory and injunctive relief, damages, and attorneys' fees. They sued defendant Julian only in her official capacity, for declaratory and injunctive relief.

The HUD officials initially moved to dismiss the complaint. Ultimately, the court refused to do so, except for the claim for prospective relief. With respect to that claim, the district court first found that while the plaintiffs were not currently under investigation by HUD, they had sufficiently alleged "that they are engaging or will in the future likely engage in activities similar to those that precipitated the HUD investigation in this case." However, because HUD had implemented and memorialized a new policy prohibiting agency investigations into protected First Amendment activity and the plaintiffs had not alleged any specific  [**20]  objectionable conduct occurring after the implementation of that policy, the district court concluded that there was no live controversy under Article III. Accordingly, pursuant to Federal Rule of Civil Procedure 12(b)(1), it dismissed the plaintiffs' claim for prospective relief as moot.

ANALYSIS

We consider, in turn, (1) the HUD officials' appeal of the district court's denial of their motion for summary judgment on the ground of qualified immunity, (2) the officials' appeal of the entry of partial summary judgment on the issue of liability, and (3) the plaintiffs' appeal of the dismissal of their claim for prospective relief.

I. DENIAL OF QUALIFIED IMMUNITY

B. Have the Plaintiffs Stated a First Amendment Claim?

[omitted]

1. The Plaintiffs' First Amendment Activity and the Defendants' Chilling Conduct

Although the HUD officials frame this case in terms of a complex doctrinal debate involving Noerr-Pennington immunity and its labor law permutation, we find it to be, at heart, quite simple. In opposing their local government's approval of the Bel Air project, White, Deringer, and Graham engaged in activity paradigmatically protected by the First Amendment. The HUD officials' eight-month investigation into the plaintiffs' activities and beliefs chilled the exercise of their First Amendment rights. The plaintiffs are entitled to seek a remedy for this constitutional violation.

a. The Speech

The First Amendment provides that "Congress shall make no law . . . abridging  [**24]  the freedom of speech, or of the press . . . ." Here, the plaintiffs wrote and distributed flyers and published a newsletter in the advocacy of a politically controversial viewpoint - "the essence of First Amendment expression." See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347,  [*1227]  131 L. Ed. 2d 426, 115 S. Ct. 1511 (1995) (citations omitted); see also Mills v. Alabama, 384 U.S. 214, 219, 16 L. Ed. 2d 484, 86 S. Ct. 1434 (1966) ("The Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, to play an important role in the discussion of public affairs.") (citation omitted). They organized and participated in a coalition of neighbors who shared their views, admirable or not. Roberts v. United States Jaycees, 468 U.S. 609, 622, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984) ("Implicit in the right to engage in activities protected by the First Amendment [is] a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.") (citations omitted); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 2 L. Ed. 2d 1488, 78 S. Ct. 1163 (1958)  [**25]  (describing as "beyond debate" that freedom of speech encompasses "freedom to engage in association for the advancement of beliefs and ideas") (citations omitted). The right to expressive association includes the right to pursue, as a group, discriminatory policies that are antithetical to the concept of equality for all persons. See Boy Scouts of America v. Dale,     U.S.    ,    , 120 S. Ct. 2446, 2457-58 (2000).

The First Amendment also guarantees the right "to petition the Government for a redress of grievances." The plaintiffs exercised this right by attending and speaking out at Zoning Adjustment Board hearings and by challenging in the courts the board's decision to grant a use permit for the Bel Air project. See, e.g., Christian Gospel Church, Inc. v. City & County of San Francisco, 896 F.2d 1221, 1226 (9th Cir. 1990) (neighbors who opposed zoning permit application by church "by circulating a petition, testifying before the Planning Commission and writing letters to the editor" were "fully protected by the first amendment"); Evers v. County of Custer, 745 F.2d 1196, 1204 (9th Cir. 1984) (activity of property owners who  [**26]  urged county officials not to close what they believed was public road "falls within the first amendment's protection of the right to petition the government for redress of grievances") (citing Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct. 523 (1961)). Regardless of what we might think of their objectives, the plaintiffs "were doing what citizens should be encouraged to do, taking an active role in the decisions of government." Christian Gospel Church, 896 F.2d at 1226.

It is important to emphasize that a person's speech or petitioning activity is not removed from the ambit of First Amendment protection simply because it advocates an unlawful act. The First Amendment does not permit government "to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969)... Advocacy is unprotected only if it is "intended to produce, and likely to produce, imminent disorder"; "advocacy of illegal action at some indefinite future time" is not actionable. Hess v. Indiana, 414 U.S. 105, 108-09, 38 L. Ed. 2d 303, 94 S. Ct. 326 (1973).

It is clear that the term "advocacy," as used in Brandenburg, encompasses not only freedom of speech, but the other rights of expression guaranteed by the First Amendment as well. Brandenburg specifically held that "statutes affecting the right of assembly, like those touching on freedom of speech, must observe the  [*1228]  established distinctions between mere advocacy and incitement to imminent lawless action." 395 U.S. at 449 n.4... The Supreme Court has also explained that the right to petition is "inseparable" from and "was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble." McDonald v. Smith, 472 U.S. 479, 485, 86 L. Ed. 2d 384, 105 S. Ct. 2787 (1985) (citations omitted).

We need not decide whether the plaintiffs' primary objective - the defeat of the proposed conversion of the Bel Air motel - would have involved an unlawful act. The mere fact that citizens urge their government to adopt measures that may be unlawful does not deprive the speech involved of its First Amendment protection. Cf. Manistee Town Ctr. v. City of Glendale,     F.3d    , 2000 U.S. App. LEXIS 22779, No. 99-16328 (9th Cir. Sept. 11, 2000) (affirming dismissal under Noerr-Pennington doctrine of complaint challenging lobbying of county officials that allegedly resulted in unconstitutional taking of plaintiff's property). Here, it is clear that nothing that the plaintiffs said or did came close to meeting the Brandenburg test. "Imminent lawless action," as used in Brandenburg, means violence or physical  [**29]  disorder in the nature of a riot. Peaceful speech, even speech that urges civil disobedience, is fully protected by the First Amendment. Were this not the case, the right of Americans to speak out peacefully on issues and to petition their government would be sharply circumscribed. We therefore hold that the standard set forth in Brandenburg applies to all the First Amendment activity at issue in this case, including plaintiffs' petitioning activity, regardless of whether the denial of the permit on the grounds urged would have been contrary to the provisions of the Fair Housing Act.

b. The Chill

The investigation by the HUD officials unquestionably chilled the plaintiffs' exercise of their First Amendment rights. It is true that the agency did not ban or seize the plaintiffs' materials, and officials in Washington ultimately decided not to pursue either criminal or civil sanctions against them. But in the First Amendment context, courts must "look through forms to the substance" of government conduct. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67, 9 L. Ed. 2d 584, 83 S. Ct. 631 (1963). Informal measures, such as "the threat of invoking legal sanctions  [**30]  and other means of coercion, persuasion, and intimidation," can violate the First Amendment also. Id. n8 This court has held that government officials violate this provision when their acts "would chill or silence a person of ordinary firmness from future First Amendment activities." Mendocino Environmental Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999) (citation omitted). Here, the type of investigation conducted and the manner in which the individual defendants carried out their functions more than meets that standard.

The HUD officials carried out an investigation that lasted more than eight months, substantially longer than the presumptive 100-day time limit set by 42 U.S.C. § 3610(a)(1)(B)(iv). During the investigation, defendant Zurowski conveyed a conciliation proposal requiring the plaintiffs to cease all litigation and publications regarding  [*1229]  the Bel Air project and advised the plaintiffs to accept it because they had violated the Fair Housing Act by distributing "discriminatory" flyers. Defendants Lee and Smith directed the plaintiffs under threat of subpoena to produce all their publications regarding the Bel Air project, minutes of relevant meetings, correspondence with other organizations, and the names, addresses, and telephone numbers of persons who were involved in or had witnessed the alleged discriminatory conduct. n9 Smith interrogated the plaintiffs, again under threat of subpoena, about their views and public statements in opposition to the Bel Air project. In a letter drafted by Smith, defendant Gillespie asserted HUD's purported authority to investigate "allegations that individuals have engaged in speech advocating illegal acts, including discrimination  [**32]  against persons based on their physical or mental disabilities" and stated that the plaintiffs had violated the Fair Housing Act by writing "news articles which referenced the mental disability of the intended residents of the proposed project as a reason for denial of the project." Defendant Phillips told a major metropolitan newspaper that the plaintiffs had "broken the law." n10 We conclude that these actions would have chilled or silenced a person of ordinary firmness from engaging in future First Amendment activities.

2. The FHA as a Justification

The HUD officials argue that their actions constituted lawful efforts to enforce the Fair Housing Act (FHA). The purpose of that statute is "to provide, within constitutional limitations, for fair housing throughout the United States." 42 U.S.C. § 3601. The FHA prohibits, among other things, owners and landlords from refusing to sell or rent housing because of race, color, religion, sex, handicap, familial status, or national origin. See id. at § 3604. The FHA also makes it unlawful "to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of . . . any right granted or protected by section 3603, 3604, 3605, or 3606 of this title." Id. at §§ 3617, 3602(f). A violation of this provision is considered a "discriminatory housing practice" for which an "aggrieved person" may file an administrative complaint with HUD. Id. at § 3610(a)(1)(A)(i). If this occurs, HUD must serve notices upon the complainant and the respondents and "make an investigation of the alleged discriminatory housing practice and complete such investigation within 100 days after the filing of  [*1230]  the complaint  [**34]  . . . unless it is impracticable to do so." Id. at § 3610(a)(1)(B)(iv).

We have applied § 3617 broadly to cover a variety of practices that have the effect of interfering with the exercise of fair housing rights protected by the FHA. See United States v. City of Hayward, 36 F.3d 832, 835 (9th Cir. 1994) ("'Interference' ranges from racially motivated firebombings, to exclusionary zoning, and insurance redlining.") (citations omitted). In theory, § 3617 could be interpreted even more broadly, so that a wide range of speech regarding the housing rights of others could be investigated and sanctioned. One person's persuasive editorial on a zoning dispute, for instance, might well "interfere" with another person's ability to secure housing. So construed, however, § 3617 would quickly run afoul of the First Amendment principles discussed above.

For this reason, other courts have recognized that a speaker's advocacy of his views, however "ill-advised, uninformed, and even distasteful," can amount to a violation of § 3617 of the FHA only in the event that the advocacy is directed to inciting or producing imminent violence and is likely in fact to do so. We agree. See Michigan Protection & Advocacy Serv., Inc. v. Babin, 799 F. Supp. 695, 720 (E.D. Mich. 1992)... Threats of violence and other forms of coercion and intimidation directed against individuals or groups are, however, not advocacy, and are subject to regulation or prohibition. See United States v. Gilbert, 813 F.2d 1523, 1529-30 (9th Cir. 1987) (holding that criminal prosecution under FHA of person who mailed letters and flyers threatening to murder whites who aided blacks and other minorities was not precluded by First Amendment). In this case, no such acts were alleged.

Although the HUD officials now concede that the plaintiffs' "protest activities of writing newspaper articles, leafleting, etc., [were], of course, constitutionally protected forms of speech," they suggest parenthetically in their brief that their investigation was necessary to determine whether the flyers distributed  [**37]  by the plaintiffs involved an incitement to imminent lawless action. This suggestion is not supported by the record. HRI executive director Lawless sent a letter to the San Francisco Office that enclosed the relevant flyers two weeks before she signed the complaint. The officials did not need to gather additional information before determining whether these flyers incited imminent lawless action or not. That the First Amendment protected the authors and distributors of the flyers was plain.

3. The Plaintiffs' Lawsuit as a Justification

In attempting to justify their eight-month investigation, the HUD officials rely mainly on the lawsuit filed by the plaintiffs' neighborhood coalition in April 1993. An unsuccessful state-court lawsuit, the officials argue, can violate the FHA if it is filed with a discriminatory motive; their theory is essentially that the First Amendment does not protect litigants who lose. Because the state court denied the plaintiffs their requested relief in February 1994, the HUD officials maintain that, after HRI filed its complaint in November 1993, they were entitled to investigate the plaintiffs' speech in opposition to the Bel Air project to determine  [**38]  whether they had filed their suit with an unlawful discriminatory motive. Cf. Wisconsin v. Mitchell, 508 U.S. 476, 489, 124 L. Ed. 2d 436, 113 S. Ct. 2194 (1993). In making this argument, the officials rely principally on Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 76 L. Ed. 2d 277, 103 S. Ct. 2161 (1983), and Diamond Walnut Growers,  [*1231]  Inc. v. NLRB, 53 F.3d 1085 (9th Cir. 1995), two cases we discuss below.

In dissecting the serious flaws in the officials' argument, it is necessary to examine carefully the protection that the First Amendment affords to individuals who petition the government for redress of grievances through the courts. In the end, however, we conclude that whether or not the HUD officials had the right to conduct a limited investigation at the outset, and whether or not in some circumstances a lawsuit may be stripped of its First Amendment protection simply because the plaintiffs fail to prevail on the merits, the investigation that the HUD officials conducted exceeded the bounds of reasonable governmental action and violated the plaintiffs' First Amendment rights.

a. Noerr-Pennington immunity

The  [**39]  Supreme Court has described the right to petition as "among the most precious of the liberties safeguarded by the Bill of Rights" and "intimately connected, both in origin and in purpose, with the other First Amendment rights of free speech and free press." United Mine Workers, Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217, 222, 19 L. Ed. 2d 426, 88 S. Ct. 353 (1967). It is "cut from the same cloth as the other guarantees of [the First] Amendment, and is an assurance of a particular freedom of expression." McDonald v. Smith, 472 U.S. at 482.

The Court has further established that the right to petition extends to all departments of the government, including the executive department, the legislature, agencies, and the courts. California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510,  (1972). California Motor Transport involved Noerr-Pennington immunity, a doctrine initially promulgated "to protect efforts to influence legislative or executive action from liability under the Sherman Act." Oregon Natural Resources Council v. Mohla, 944 F.2d 531, 533 (9th Cir. 1991)  [**40] . While the Noerr-Pennington doctrine originally arose in the antitrust context, it is based on and implements the First Amendment right to petition and therefore, with one exception we discuss infra (see Section I.B.3.b), applies equally in all contexts. See Manistee Town Ctr.,     F.3d at     ("The immunity is no longer limited to the antitrust context . . . .") (citing Boulware v. Nevada Dep't of Human Resources, 960 F.2d 793, 800 (9th Cir. 1992)...

The Noerr-Pennington doctrine ensures that those who petition the government for redress of grievances remain immune from liability for statutory violations, notwithstanding the fact that their activity might otherwise  [**41]  be proscribed by the statute involved. See Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56, 123 L. Ed. 2d 611, 113 S. Ct. 1920 (1993). Noerr-Pennington is a label for a form of First Amendment protection; to say that one does not have Noerr-Pennington immunity is to conclude that one's petitioning activity is unprotected by the First Amendment. n14 With respect to petitions brought in the courts, the Supreme Court has held that a lawsuit is unprotected only if it is a "sham" - i.e., "objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits." Id. at 60. See also California Motor Transp., 404 U.S.  [*1232]  at 513 (stating that First Amendment protection would not extend to "a pattern of baseless, repetitive claims . . . [that lead] the factfinder to conclude that the administrative and judicial processes have been abused").

Applying these principles to the present case, it follows that the plaintiffs' state-court lawsuit could have amounted to a discriminatory housing practice only in the event that (1) no reasonable litigant could have realistically expected success on  [**45]  the merits, and (2) the plaintiffs filed the suit for the purpose of coercing, intimidating, threatening, or interfering with a person's exercise of rights protected by the FHA. Because, in the present case, the first requirement cannot be sustained, we need not even consider the second. Objective baselessness is the sine qua non of any claim that a particular lawsuit is not deserving of First Amendment protection. [*1233]  The lawsuit filed by the plaintiffs was unquestionably not objectively baseless. Far from it: it challenged a rather egregious conflict of interest by a person who was simultaneously a member of both the Zoning Adjustment Board and the board for the developer seeking the Bel Air use permit. As the director of HUD's Office of Investigations ultimately concluded, the plaintiffs' action "would have constituted a successful legal claim" but for the court's application of the "good faith" exception under California law...

We agree that the San Francisco Office was justified in accepting HRI's complaint. Furthermore, the mere fact that the officials provided the plaintiffs with a copy of HRI's complaint and informed them of their rights and duties under the FHA, pursuant to § 3610(a)(1)(B)(ii), did not in itself violate the plaintiffs' rights under the First Amendment. As we have explained earlier, however, the critical issue is not whether the HUD officials were justified in accepting HRI's complaint and initiating  [**48]  some form of limited investigation, but whether the manner in which they actually conducted their eight-month investigation violated the plaintiffs' First Amendment rights.

This court has held that when an action involves "the right to petition governmental bodies under Noerr-Pennington," it is necessary to apply a "heightened level of protection . . . to avoid 'a chilling effect on the exercise of this fundamental First Amendment right.'" ONRC v. Mohla, 944 F.2d at 533 (quoting Franchise Realty Interstate Corp. v. San Francisco Local Joint Executive Bd., 542 F.2d 1076, 1082 (9th Cir. 1976)). Because the plaintiffs' lawsuit could have been actionable under the FHA if and only if it were a sham, the officials were obligated to first determine that the suit was objectively baseless before proceeding with any potentially chilling investigation into the plaintiffs' protected speech and other petitioning activity - even for the stated purpose of determining whether the plaintiffs had filed the suit with an unlawful discriminatory intent. As with the methodology mandated by the Supreme Court for judicial review of lawsuits, see Professional Real Estate Investors, 508 U.S. at 60-61,  [**49]  a determination of objective baselessness of the litigation is a constitutionally required precondition to any investigation into the nature of the plaintiffs' advocacy.

The HUD officials completely failed to satisfy this threshold requirement. From the time they initiated their investigation  [*1234]  until the time they submitted their final report to the Washington office, the officials made little or no effort to investigate the basis for the plaintiffs' suit. Instead, their investigation focused almost exclusively on what the officials considered to be the plaintiffs' discriminatory speech. Director Gillespie's two-page, single-spaced letter of July 1994 broadly asserted HUD's purported jurisdiction to investigate "speech advocating illegal acts" and cited reprovingly the plaintiffs' "news articles which referenced the mental disability" of the Bel Air project's intended residents; it did not, however, mention the plaintiffs' lawsuit once. Likewise, investigator Smith did not ask the plaintiffs any questions about the lawsuit during his interviews. Most striking, the officials completed and submitted to HUD headquarters a final investigative report that failed to include any information  [**50]  about the plaintiffs' lawsuit more substantial than what was set forth in HRI's complaint. After receiving the San Francisco Office's investigative materials, and analysis, and its finding of "reasonable cause" to believe that the plaintiffs had violated the FHA, Director Pratt in the Office of Investigations felt compelled to direct the San Francisco Office to supplement the report with information and documents on the lawsuit. This is in spite of the fact that on February 8, 1994, the plaintiffs' attorney had sent investigator Lee a memorandum from the Berkeley City Manager acknowledging the conflict of interest that was the subject of the plaintiffs' action.

These undisputed facts show that the San Francisco HUD officials conducted their eight-month investigation, primarily if not exclusively, into and in response to the plaintiffs' purportedly unlawful speech and not in connection with their state-court lawsuit. Having ignored the factual and legal basis for that litigation throughout, and instead having taken a course certain to chill the exercise of the plaintiffs' First Amendment rights, the officials may not now argue that their investigation was justified as a means of determining  [**51]  whether the plaintiffs had violated the FHA by filing a sham lawsuit.
 

C. Was the Law Clearly Established?

Having concluded that the plaintiffs have stated a proper First Amendment claim, we next consider whether the HUD officials are entitled to qualified immunity. Under this doctrine, government officials sued for damages for injuries arising out the performance of their discretionary functions must be "shown to have violated 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Conn v. Gabbert, 526 U.S. at 290 ...

We hold that in this case the unconstitutionality of each of the HUD officials' actions was apparent at the time they acted. The  [**67]  plaintiffs' claim is founded on bedrock First Amendment principles and legal rules that this court and the Supreme Court have applied for decades, if not centuries. In 1993 and 1994, reasonable government officials would have known that they could not conduct an eight-month investigation into the vocal but entirely peaceful opposition of residents to a housing project proposed for their neighborhood, or into their efforts to persuade the appropriate government agencies of their point of view. They would also have known that accusations of law-breaking, threatened subpoenas, improper broad demands for documents and information, and admonishments to cease nonfrivolous litigation and the publication of "discriminatory" statements would chill "uninhibited, robust, and wide-open" debate on public issues. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The HUD officials could not have reasonably believed their actions (as described at p. 12459 supra and in the Statement of Facts) to be consistent with the First Amendment.

The officials argue that they were required by statutes and regulations to serve HRI's complaint on the plaintiffs, conduct an investigation, and attempt to resolve it through conciliation. The fact that an investigation may have been initiated pursuant to statutory and regulatory authority does not, however, entitle the defendants to qualified immunity regarding the extent of the investigation and the manner in which it was conducted. See, e.g., Calabretta, 189 F.3d at 817 (stating that it was "not clear" why authorization under state regulations would excuse officials "from compliance with the Fourth Amendment"). It is the scope and manner of the investigation that the HUD officials should have known to be violative of the plaintiffs' First Amendment rights.

It was also clearly established that the Noerr-Pennington doctrine sharply limited the officials' ability to treat the plaintiffs' state-court lawsuit as a possible violation of law. Controlling case law had made clear that the doctrine was not limited to the antitrust context, and that the officials had a duty to first determine that the plaintiffs' suit - the only conceivable FHA violation alleged in  [**69]  HRI's administrative complaint - was objectively baseless before proceeding with a potentially chilling investigation into the plaintiffs' indisputably protected speech and other petitioning activity.

The HUD officials - or, to be more specific, their counsel from the U.S. Department of Justice - contend that they will face the specter of "personal financial ruin" in the event that they are denied qualified immunity. The appropriate amount of damages to be awarded for the injuries sustained by the plaintiffs will be an issue for the jury or judge on remand; we express no opinion on that subject now. We observe only that Bivens suits against individual officials are often the only available means by which citizens may obtain remedies when the federal government violates their constitutional rights. To the extent that HUD is genuinely concerned about the inhibiting effect that the threat of personal liability will have on its future operations, it may indemnify its employees as permitted by law. We would, in fact, be most surprised if the agency did not do so in this case. When government officials violate citizens' clearly established  [**70]  First Amendment rights, however, we will not apply the doctrine of qualified immunity to defeat a remedy of damages to which the citizens are entitled under Bivens.  [*1240]
 

CONCLUSION

For the reasons stated, we affirm all the rulings  [**85]  of the district court challenged on the appeals and cross-appeal.

AFFIRMED

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n3 This letter stated in part:

A small well-funded group of neighborhood homeowners, in concert with a political organization, has effectively blocked the project to date. They have been particularly successful in building opposition through scare tactics, as is evidenced in their literature. One of their principal arguments against this project is that it will benefit people that are diagnosed as mentally disabled or disabled through substance abuse. . . . Although we have encountered resistance on other affordable housing projects, it has never been so strong, nor so clearly discriminatory. Also, we are disturbed by the fact that these neighbors are backed by a political organization (the Council of Neighborhood Associations, or CNA).