Homeowners’ Associations and the First Amendment: Are your 5 Freedoms Guaranteed?

I recently visited the Newseum in Washington, DC, an intriguing blend of exhibits on pivotal moments in the history of freedom of the press, all the way up to current events and interactive displays of new media technology. The founders of the Newseum describe themselves as “Champions of the First Amendment:”

While I was exploring the First Amendment Center, I was struck by the “Forty-five words of Freedom” that comprise the first amendment of the US Constitution. The exhibit highlights the 5 freedoms guaranteed to all Americans:
Five freedoms guaranteed by the First Amendment to the US Constitution.

1. Freedom of Religion
2. Freedom of Speech
3. Freedom of the Press
4. Freedom to Assemble Peaceably
5. Freedom to Petition the Government for a Redress of Grievances

Well, although I am not an attorney, I starting thinking: how many of these five freedoms are guaranteed by the homeowners’ associations (HOAs) in America? You may find the answer surprising, but, according to trade group Community Associations Institute (CAI), none of these five freedoms are guaranteed in Residential Associations.

Don’t believe it? Well, here it is in writing, in a 2011 amicus brief filed in the NJ Supreme Court case of Mazdabrook HOA vs. Khan. The case involved a homeowner who displayed a campaign sign in the window of his unit – he was a candidate for public office – and the HOA’s enforcement of their draconian “no signs” rule. The homeowner sued for violation of his First Amendment rights. The lower court ruled in favor of the HOA. The appellate court reversed and ruled in favor of the homeowner, thus prompting an appeal to the NJ Supreme Court.

An excerpt from CAI’s argument in favor of Mazdabrook HOA:

“Whatever rights common interest association members have to express themselves regarding association issues arise not from the State Constitution but rather from statute, from contractual provisions of the association’s governing documents, from the fiduciary duty owed by the association trustees, and from concepts of fundamental fairness.”

In essence, the “official” industry organization argues that The Bill of Rights Need Not Apply in Association-Governed Residential Communities (AGRCs), more commonly known as HOAs.

Ultimately, the Supreme Court of NJ ruled in favor of the homeowner. And in 2014, the NJ Supreme Court also ruled in favor of a cooperative homeowner in a similar case, involving the HOA’s restriction against distributing leaflets to neighbors regarding an upcoming Association Board election. (See Dublirer vs. 2000 Linwood Ave)

In the Court’s view, residents and members of an HOA comprise its own public – albeit limited – when it comes to interactions between and among themselves. Restrictions imposed upon its own members and residents must not limit speech based upon content, and cannot leave members without a viable alternative to communicate with their neighbors on important political issues. The Court did not agree with CAI’s argument that an owner or resident waives Constitutional rights in favor of Covenants, Conditions, and Restrictions (CC&Rs). In the Dublirer case, the Court makes reference to an HOA Board member’s similarity to a member of Town Council [emphasis added]

Dublirer sought to be elected to the Board of Directors of the co-op. His message related to the governance of the residential community in which he lived. Thus, even though Dublirer did not run for public office, his message was akin to and should be treated as political speech, which is entitled to the highest level of protection in our society. See Mazdabrook, supra, 210 N.J. at 499 (“[P]olitical speech ․ lies ‘at the core’ of our [State’s] constitutional free speech protections.”) (citations omitted); State v. Miller, 83 N.J. 402, 411 (1980) (noting political speech “occupies a preferred position in our constitutionally-protected interests”); see also Verna v. Links at Valleybrook Neighborhood Ass’n, Inc., 371 N.J.Super. 77, 98 (App.Div.2004) (finding that candidate for board of directors of homeowners’ association “should be deemed a limited purpose public figure” in defamation context because position is “essentially indistinguishable from a member of a town’s governing body”). Also, as we noted in Mazdabrook, “[f]ree speech protections assume particular importance in the context of a person campaigning” for office. Mazdabrook, supra, 210 N.J. at 499. – See more at: http://caselaw.findlaw.com/nj-supreme-court/1685374.html#sthash.OOIIvX8I.dpuf

Are your First Amendment rights still violated by your HOA?

For example, some common complaints:

…only home or condo owners may attend meetings, not tenants or non-residents, including prospective buyers

…the Board sets strict limitations on if or when residents can speak at Board meetings, and has an annoying habit of adjourning the meeting early to avoid the comment period

…the only information published in the Association newsletter is whatever the Board approves

…the Board tries to silence or intimidate owners who create their own website to communicate with their neighbors, or to disseminate information that the Board will not

…your Association has a “non-solicitation” restriction that includes going door-to-door to campaign for a seat on the Board, or to discuss an upcoming vote on amending the covenants and restrictions

…the Board and Manager have a history of harassing any homeowner that asks questions about finances or that requests to see official records

…the Board enforces rules that restrict the type and size of religious objects you can display on your front door or anywhere else on your property

…the Board denies religious groups access to common meeting rooms at the clubhouse, but allows nonreligious clubs to meet in the clubhouse on a regular basis

Do any of these examples sound familiar? If so, have you and your neighbors defended your rights?