The First Amendment Can Apply To Condominiums?

Written by Posted On Tuesday, 15 October 2013 11:03

The First Amendment protections of free speech can apply to condominiums. This was the decision of the Supreme Court of New Jersey in an opinion handed down on June 13, 2012. And other state courts have recently come to the same conclusion in recent months.

The First Amendment states, in part, that "Congress shall make no law ... abridging the freedom of speech, or of the press..." Students of the Constitution know that this protection has been extended to the 50 states through the 14th amendment.

For years, community association leaders and lawyers were in agreement that since condos are not governments, the First Amendment did not protect condo owners from speaking freely. Accordingly, case law throughout the country has in the past upheld such restrictions as flying the American flag, posting for sale signs in unit windows, or political campaigns posters on front lawns.

In a New Jersey condominium, Mr. Wasim Khan was campaigning for a seat on his local town council and posted signs supporting his candidacy - one inside his front window and one inside the glass in his front door. The Mazdabrook Condominium had a policy that prohibited signs - other than one "for sale" sign - on the exterior or interior of any Unit. According, Khan was order to remove his signs. He complied, but bought his association into court challenging their decision.

The applicable section of the New Jersey Constitution states, in part: "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..."

Based on this language, the high court in New Jersey held that Mr. Khan’s free speech right to post political signs on his own property was permitted under the New Jersey constitution. The high court conceded that its state’s constitution offers greater protection than the First Amendment. According to the Court, "Federal case law requires some form of "state action" to trigger the protections of the First Amendment. State law, interpreting a broader constitutional right, does not. ... In New Jersey, an individual’s affirmative right to speak freely "is protected not only from abridgement by government, but also from unreasonable restrictive and oppressive conduct by private entities," in certain situations.

The court balanced the interference with the condominium property with the interference faced by Mr. Khan. "For him", the court said, "it hampers the most basic right to speak about the political process and his own candidacy for office." Political speech, the court held, lies at the core of our constitutional free speech protections.

Furthermore, the court chided the condominium for not adopting reasonable time, place, and manner restrictions, nor implementing alternative means of political communications.

Indeed, the United State Supreme Court has held that residential signs have long been an important and distinct medium of expression - a "venerable means of communication that is both unique and important.

Will this case impact condominium associations in the Washington metropolitan area. In the District of Columbia, the Federal law would apply. Since condominiums are not states, unit owners here would not be able to assert the free speech protections of the constitution. However, case law in the District requires board of directors to be reasonable, and a court could find that a restriction on political advertising would be unreasonable and thus not acceptable.

The Virginia constitution’s free speech protection mirrors that of New Jersey.

That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.

Accordingly, it is possible one day that the high court in the Commonwealth may hold that restrictions on political signs violated an owner’s free speech rights.

Let’s look at the Maryland Constitution, which reads: "That freedom of speech and debate, or proceedings in the Legislature, ought not to be impeached in any Court of Judicature."

A clear reading suggests that while a condomium could attempt to impose restrictions on speech - especially political issues - should the association try to enforce that restriction in a court of law, the court would not uphold it. In other words, the court can not impeach a unit owner’s right to free speech.

The issue of the right to speak freely in community associations is a hotly debated topic. Perhaps the New Jersey case is unique - or perhaps that case only applies to political speech.

We are in the beginning of a long, hard-fought political election. I am sure, however, that we have not heard the end of this debate.

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Benny L Kass

Author of the weekly Housing Counsel column with The Washington Post for nearly 30 years, Benny Kass is the senior partner with the Washington, DC law firm of KASS LEGAL GROUP, PLLC and a specialist in such real estate legal areas as commercial and residential financing, closings, foreclosures and workouts.

Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission’s real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.

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