Free Speech In Condos and Co-Ops: Round III Goes To The Resident

by:  Peter J. Gallagher (@pjsgallagher)       

It is not quite Ali-Frazier or even Gatti-Ward, but the New Jersey Supreme Court just delivered its third opinion in the past seven years regarding the free speech rights of residents in common interest communities (condos and co-ops). In Dublirer v. 2000 Linwood Avenue, Owners, Inc., the Court ruled that a resident who was a regular critic of the co-op's board of directors had the right to distribute leaflets under apartment doors throughout the building. (We previously wrote about the Appellate Division decision that the Supreme Court reviewed on appeal – look here.) The Court held that the co-op's "House Rule" purportedly banning all soliciting and distributing of written materials, including the resident's leaflets, was an unconstitutional abridgment of his free speech rights. In doing so, the Court clarified the standard that should generally be applied when evaluating similar issues — which arise frequently in common-interest communities — and described the types of restrictions that could be adopted without infringing on the free speech rights of residents.

The plaintiff in Dublirer was a gadfly, or was at least the publisher of a newsletter called the "Med South Gadfly" (the name of the development was Mediterranean Towers South, or Med South for short) which frequently accused the co-op's board of being financially irresponsible, incompetent, and possibly corrupt. He distributed the newsletter at public shareholder meetings twice a year.

In 2008, plaintiff notified the board that he was considering running for a seat on the board and asked whether he could distribute campaign materials under apartment doors throughout the building. He asked for permission because the board had developed a “House Rule” that banned all solicitation or distribution of written materials without prior approval of the board. However, the “House Rule” had a number of exceptions, most notably one that allowed the board to distribute “updates” to residents. The Supreme Court noted that these updates were “charitably described” by the trial court as “partisan material” that “attack[ed] the board’s opponents,” including by challenging the credibility, competence and motives of the board’s critics.  

Not surprisingly, the board denied plaintiff’s request, claiming that the “House Rule” was clear and did not permit plaintiff to distribute his campaign materials. Plaintiff sued in the Chancery Division challenging the “House Rule” and seeking to enjoin its use. Both parties eventually moved for summary judgment, and the Chancery Division granted the board’s motion and dismissed the complaint. The trial court held that the “House Rule” was uniformly employed and that plaintiff had reasonable alternative methods to communicate. The Appellate Division reversed, holding that the rule violated plaintiff’s free speech rights. The board appealed.

The Supreme Court began its analysis by observing that the New Jersey Constitution guarantees New Jersey citizens broader free speech rights than even the United States Constitution. Among other things, the federal Constitution requires “state action” to invoke the First Amendment, while the New Jersey Constitution does not. Instead, the New Jersey Constitution protects against both state restrictions of speech and “unreasonably restrictive or oppressive conduct on the part of private entities.”

The Supreme Court then discussed the two recent cases that have guided lower courts regarding free speech rights in common-interest communities – Mazdabrook Commons Homeowners’ Ass’n v. Khan and Comm. For a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n. (We reported on Khan when it was issued – look here.) These cases established a test that was originally developed in situations where community associations sought to limit the free speech rights of visitors, not residents. This test required courts to evaluate: "(1) the nature, purposes, and primary use of such private property, generally its 'normal' use, (2) the extent and nature of the public's invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property." It also required courts to balance both sides’ interests and assess the reasonableness of the restrictions on free speech.

In Dublirer, the Supreme Court “clarified” this standard and conformed it more closely to issues involving the regulation of residents’ speech as opposed to visitors’ speech. It held that when courts “evaluate restrictions on the right to free speech and assembly for residents of a private interest community,” courts must:

focus on the “purpose of the expressional activity undertaken” in relation to the property’s use . . . and should also consider the “general balancing of expressional rights and private property rights. Both standards look to similar factors to determine “the fairness of the restrictions imposed” with regard to the residents’ free speech rights.

Applying this standard to the “House Rule” in Dublirer, the Supreme Court held that it could not stand. Plaintiff was engaging in political-type speech which, like traditional political speech, should be “entitled to the highest level of protection in our society.” The court then held that plaintiff’s proposed speech would “interfere only minimally with the interests of the apartment building and its residents,” and that the proposed speech was not “incompatible with the nature of the private property where he and his neighbors dwell.” On the latter point, the Supreme Court poignantly noted: “Speech about governance is not incompatible with the place to be governed.” Finally, the Supreme Court held that the alternatives available to plaintiff — distributing materials twice a year at public shareholder meetings, mailing them to each resident, or posting them on a bulletin board near the back entrance of the building — were “simply not substantially the same as presenting a leaflet to a neighbor.” Based on all of these factors, the Supreme Court held that the “House Rule” was an unreasonable and unconstitutional restriction on plaintiff’s free speech rights.

 The Supreme Court did observe that a board could adopt reasonable time, place, and manner restrictions on resident speech:

For example, it could reasonably limit the number of written materials that an apartment dweller can distribute in a given period. The Board could also reasonably limit the hours of distribution to prevent early morning or late evening activities . . . . Those types of restrictions would promote the quiet enjoyment of residents of the apartment complex without unreasonably interfering with free speech rights.

 However, the Supreme Court cautioned that any such rules should be reduced to writing and made known to the residents. They should also be fair. In Dublirer, the “House Rule” allowed the board to distribute leaflets that criticized its critics, but prevented critics from distributing leaflets criticizing the board.  As the Supreme Court noted: “Nothing in our case law permits a group in power to attack its opponents yet bar them from responding in the same way.” While the Supreme Court’s decision was not “based on a finding of content-based discrimination,” community associations would nonetheless be wise to avoid rules like the one in Dublirer that were so obviously one-sided.

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