Are You Entitled to Free Speech in your HOA?

by Deborah Goonan, Independent American Communities Blog, Coalition for Community Housing Policy in the Public HOA FREE SPEECHInterest (Chppi.org)

As the 2016 Presidential election campaign heats up, so do political sign controversies in homeowners associations. Here’s a perfect example from Florida, a dispute over a Hillary Clinton sign in a resident’s window.

Help Me Howard, Channel 7 WSVN, on political signs in your HOA(1)

Howard Finkelstein is Public Defender for Broward County in Florida, but he moonlights as a legal analyst for the local Fox News affiliate. According to Finkelstein’s analysis, an HOA can deny a resident’s right to display a political sign as long as their documents are “written correctly,” and if the homeowner took this to court, she would “probably lose.” However, an HOA cannot allow some types of political signs (such as the one we see in the video about gun ownership rights) and not others  a sign supporting Hillary Clinton).

That would be Selective Enforcement: that’s the kind of inconsistency that gets HOA Boards in trouble, the kind of stuff that leads to billable hours to the Association attorney to defend the indefensible. Guess who pays for this expemse? Why, that would be the members of the Association, the homeowners.

Of course, Howard brings up the standard argument that because it is not the government, a private HOA can make up rules prohibiting signs. Or, as I like to say, the standard industry claim is that the Bill of Rights Need Not Apply, including your guarantee to Free Speech under the First Amendment.

But, is that absolutely true or is it subject to interpretation?

Recent Case Law opens the door for future challenges

In 2012, the NJ Supreme Court, in Mazdabrook vs. Khan(2) ruled that an Association’s restriction against placing a political sign inside a condo unit’s window was unconstitutional under state law. Of course, the facts in Mazdabrook bear a striking resemblance to the action taken by Valencia Morris at The Enclave at Cutler Bay. Ms. Morris was threatened with a fine if she did not remove the small political sign she had placed on the inside of her unit’s window.

More recently, in 2014, in Dublirer vs 2000 Linwood Avenue Owners (3), the NJ Supreme Court upheld that the Association violated the state’s Constitution when it denied the owner of a Fort Lee Co-op the right to distribute campaign leaflets as he contemplated running for a seat on the Board.

In both cases, the NJ Supreme Court ruled that even a private organization such as an Association-Governed Residential Association, cannot restrict “too much speech” and rejected legal arguments for the Associations that a homeowner “gives up” Constitutional rights by taking title to an HOA property.

Now, some FL attorneys will argue that the NJ Constitution offers greater protection of rights involving private organizations. So let’s compare the two state Constitutions on the issue of free speech.

New Jersey Constitution, article I (4)

6. Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.

Florida Constitution, Article I (5)

SECTION 4. Freedom of speech and press.—Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.

Now, I’m not an attorney, but these two provisions seem to say essentially the same thing.

Are the winds of change blowing?

Allow me to leave the reader with one final thought, courtesy of the First Amendment Center at the Newseum Institute (NI). In their recent survey (6), NI asked: Does the First Amendment go too far in the rights it guarantees? Below you can see the results. (click here and scroll to page 4 for a full-screen view)

 

Looking at perceptions of First Amendment rights for different age groups, it’s quite clear that younger generations are not going to put up with private corporate HOAs restricting speech! Time is on our side.

 

References:

1) Help Me Howard, Channel 7 WSVN, on political signs in your HOA

2) Link to Federalist Society Article on Mazdabrook vs. Khan

3) Link to NorthJersey.com article on Dublirer vs. Linwood Ave.

4) Link to NJ Constitution Article I

5) Link to FL Constitution Article I

6) Link to Newseum Institute survey on First Amendment

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