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07/30/07: First Amendment Protections Inapplicable in Community Associations

HOUSING COUNSEL

By Benny L. Kass

The New Jersey Supreme Court recently dealt a serious blow to dissident community association homeowners, holding that on the facts of the case, the First Amendment protections for Free Speech and Freedom of Assembly are not applicable to a private community association.

That Court affirmed the general understanding that in order for the First Amendment to be applied, a government - whether Federal, State or local - must be the one attempting to curtail the protections afforded by the First Amendment. This is referred to as "state action".

Twin Rivers Homeowners Association is a private corporation, that covers about one square mile in New Jersey, and is populated by approximately 10,000 residents. According to the Court opinion, the Association maintains its private residential roads, provides street lighting and snow removal, and collects trash for the homeowners.

There is an elected Board of Directors who are responsible for making and enforcing the rules and for providing the services to its members. Each homeowner pays a mandatory yearly assessment, pursuant to a annual budget adopted by the Board.

Unhappy with some of the rules which the Board of Directors enacted, a group of homeowners formed the Committee for a Better Twin Rivers, and challenged the association on the following issues:

- a limit on the number of signs homeowners could post on their property, one per lawn and one per window - and a rule prohibiting the posting of signs on utility poles;

- a rental fee was charged in order to use the community room, and

- access to the association's monthly newspaper was denied by the Board. In fact, the Committee sought a permanent injunction against the President from using the newspaper "as his own personal political trumpet".

The Committee filed suit, claiming that these rules violated the first amendment rights of free speech and freedom of assembly.

The trial court dismissed the lawsuit on the grounds that Twin Rivers was not a 'quasi-municipality' and thus was not subject to the New Jersey Constitution's free speech and association clauses."

The Committee appealed to the next level court, which reversed the decision holding that indeed the Association was subject to the State constitutional standards.

The Association then appealed to the New Jersey Supreme Court. Friends of the Court briefs (called "amicus curiae") were filed by AARP and the American Civil Liberties Union in support of the Committee, and the Community Association Institute (CAI) filed its brief in support of the homeowner association.

On July 26, 2007, that high court - in a unanimous opinion - reversed the appellate decision and reinstated the opinion of the trial court. Oversimplified, that Court held that on balance between the Committee's expressional rights versus the Association's private property rights, "the Association's policies do not violate the free speech and right of assembly clauses of the New Jersey Constitution". (Committee for a Better Twin Rivers v Twin Rivers Homeowner's Association).

The issue of the applicability of the first amendment to community associations is a hotly debated topic throughout this country.

The 14th Amendment to the Constitution applies first amendment protections to the 50 states. Indeed, the Court admitted that the New Jersey Constitution "is an affirmative right, broader than practically all others in the nation." That Constitution provides:

Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right.... The people have the right freely to assemble together...

What is clear, however, is that with limited exceptions, these protections are aimed at governments. According to the Court, and as noted above, "Federal case law has evolved to require that there must be 'state action' to enforce constitutional rights against private entities.

The Court noted, however, that under some circumstances - these constitutional protections can also be enforced against non-governmental entities.

For example, in a case involving Princeton University, the Court rejected the argument that Princeton was not subject to these constitutional protections. The university prohibited persons not affiliated with the school from soliciting and distributing political literature on campus. A non-student was arrested and convicted for trespassing while distributing Labor Party materials. The NJ high court basically determined that since Princeton had invited the public to use its facilities, the non-student was entitled to these basic protections.

In the Twin Rivers case, however, the Court concluded that the Association was simply a private entity, and that the property is used for private purposes. Unlike Princeton, "the Association has not invited the public to use its property."

Accordingly, the Court found that the "plaintiff's expressional activities are not unreasonably restricted". Furthermore, the relationship between the homeowners and the Association is a contractual one; in other words, homeowners who buy into the Association are bound by the rules and regulations as they exist now and as they may be properly amended from time to time.

The Court further suggested that the Plaintiffs "have other means of expression beyond the Association's newspaper. Plaintiffs can walk through the neighborhood, ring the doorbells of their neighbors, and advance their views...plaintiffs can distribute their own newsletters to residents, and have done so. As members of the Association, plaintiffs can vote, run for office, and participate through the elective process in decision-making of the Association. Thus, plaintiffs may seek to garner a majority to change the rules and regulations to reduce or eliminate the restrictions they now challenge."

As indicated earlier, the New Jersey Constitution is perhaps one of the most liberal in the application of the First Amendment freedoms. According to the Court, "our review of the case law in other jurisdictions reveals that only a handful of states recognize a constitutional right to engage in free speech, assembly or electoral activity on privately owned property held open to the public, such as a shopping mall or a college campus.".

Homeowners should not be discouraged by this opinion, nor should community association leaders get too enthusiastic. There is a balance between free speech and assembly and private property, and at least in New Jersey should an association cross the line, it will feel the full impact of the first amendment rights. The Court concluded that its decision does not suggest "that residents of a homeowner's association may never successfully seek constitutional redress against a governing association that unreasonably infringes their free speech rights." The facts of this case did not persuade the High Court to the contrary In other words, should the board enact unreasonable rules and regulations, or those which violate public policy, the Court left the door open to apply the first amendment protections.

In other states, homeowners should heed the suggestion of the court: if you do not like what is happening in your community, get involved, run for office, and mount a strong political campaign.. Should you win, you will be part of the decision-making process for change,.

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