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New Jersey Supreme Court Issues New Ruling on “Free Speech” in Community Associations
March 4, 2015 Posted in Community Association Law Share
In an opinion decided on December 3, 2014, New Jersey’s Supreme Court further refined the case law regarding free speech and community associations by striking down a house rule that gave the Board unfettered discretion as to what could and could not be distributed to the community.
In Dublirer v. 2000 Linwood Ave. Owners, Inc., the Defendant, known as “Med South” had a house rule that prohibited solicitation or distribution of any written materials, or the posting of signs, without the prior consent of the Board of Directors. As the Court noted, there were exceptions to the rule: the Board could distribute written materials under doors; police and fire departments and ambulance corps could knock on residents' doors to and solicit donations during the Christmas holiday season; and shareholders were permitted to knock on doors to solicit proxies for the annual shareholders' meeting, but shareholders were not permitted to discuss issues or candidates. The Court noted that the Board used the materials it distributed to attack opponents and critics while highlighting Board accomplishments.
The Plaintiff, Robert Dublirer, was a building resident. Twice a year, he published a newsletter criticizing the Board. In 2008, Dublirer advised the Board that he might run for election to the Board. In response to multiple inquires, Dublirer was informed by the Board that he was not permitted to distribute written campaign materials on the premises. Thereafter, Dublirer filed suit.
The Court reviewed New Jersey’s case law about free speech and private property and its application to recent cases involving community associations - Committee for a Better Twin Rivers v. Twin Rivers Homeowners’Ass’n (2007) and Mazdabrook Commons Homeowners’ Association v. Wasim Khan (2012).
Twin Rivers involved a large planned development where the association had a sign policy that allowed residents to post no more than one sign per lawn and one per window. Residents were still permitted to walk through the neighborhood, and solicit discussion with their neighbors. The Court held that the restrictions were minor and reasonable.
In Mazdabrook, the Court built on Twin Rivers and refined the free speech case law holding that the association’s prohibition of all signs except a “For Sale” sign violated Mr. Khan’s free speech rights. In that case, the signs at issue were a one sign placed in the front window and one inside the front door of his townhouse. Mr. Khan was running for town council.
In this case, the Court struck down Med South’s rule as a violation of Dublirer’s free speech rights. Noting that a Board could adopt reasonable time, place, and manner restrictions, Med South had none. The Court indicated that it was not aware of any written standards to guide the Board’s discretion as to what communications could be disseminated and what could not. It again pointedly noted that the Med South Board could distribute materials, but that Board critics could not.
The first sentence in the Mazdabrook opinion describes the issue as about “political signs”. “Political signs” were never defined. At the time, the Court focused on Khan’s candidacy for town council and the importance of being able to have a sign in support of his candidacy. A large aspect of the analysis was seemingly leading to a narrower conclusion that a community association cannot prohibit campaign signs of those who are running for public office. But then the Court’s ruling was broader and that broader holding in support of free speech rights was further refined in Dublirer.
The message is clear that all community associations need a policy for signs, written materials, and communication between owners that is reasonable as to time, place, and manner. What remains unanswered today, and will be fodder for future litigation is whether the door has indeed been opened up for materials about anything. This could include signs or materials about public political issues (campaigns or other issues); decorative signs; and, “For Sale” and “For Rent” signs.
Is the door now opened to signs and materials regarding issues that are political within a community association? This would include criticism of the Board, criticism over the use of lawn pesticides, maintenance fees increases, etc. An expansion and/or clarification of libel law and community associations may be just around the corner.