A partial victory for free speech in community associations (HOAs)?

Are residents of homeowner, condominium, and cooperative associations entitled to protection of First Amendment rights in Florida?

 

By Deborah Goonan, Independent American Communities

A recent Florida court opinion involving free speech rights in association governed communities is making its way around social media.

The applicable case involves an Appellate Court opinion in Fox v. Hamptons at MetroWest Condo Association, Inc.

In some ways, the opinion written by Orange County Judge Margaret Schreiber is a victory for housing consumers of homeowner, condominium, and cooperative associations in Florida, and perhaps other states.

Howard Adam Fox owns a condominium at Hamptons at MetroWest. Fox maintains a blog and a social media presence, and has been very vocal about his displeasure with his condo association and some of its board members.

The Association sued Fox, alleging that his conduct crossed the line, resulting in harassment. The dispute was settled out of court, and, in that settlement, Fox agreed to curb certain activities to avoid inflicting harm upon the association and certain individuals.

Shortly thereafter, MetroWest filed a complaint against Fox, alleging he was in contempt of the agreement.

At this point, the trial court not only found Fox in civil contempt, but it also ordered further restrictions upon Fox. According to the written opinion (see link in Reference section below):

After a hearing, the trial court found Fox in civil contempt. In addition to enforcing the provisions of the settlement agreement, the trial court further ordered Fox to stop posting, circulating, and publishing any pictures or personal information about current or future residents, board members, management, employees or personnel of the management company, vendors of the Hamptons, or any other management company of the Hamptons on any website, blog, or social media. He was further ordered to take down all such information currently on any of his websites or blogs.1 The trial court also prohibited Fox from starting any new blogs, websites or social media websites related to the Hamptons or the Association. It informed Fox that, as his punishment, if someone asked him on his social media page if he enjoyed living at the Hamptons, he could not post a response online. Instead, he would have to call the person to express his concerns. Notably, these amendments to the settlement agreement appear to be permanent.

 

In his appeal, Fox called these restrictions excessive, and sought to protect his First Amendment right to free speech.

Appellate Judge Schreiber agreed, describing the trial court’s restrictions as “prior restraints.”

 

We agree that a blanket prohibition of his online speech constitutes an unconstitutional prior restraint on free speech.

Both the United States Constitution and the Florida Constitution prohibit laws that curtail the freedom of speech or the freedom of the press…. “A prior restraint on publication, or censorship of information that has already been published, is presumptively unconstitutional under the First Amendment.” … It has been established that “[p]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” … “Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.”

In this case, the trial court erred when it prohibited Fox from making any statements whatsoever pertaining to the Hamptons or to the Association on his websites, blogs, and social media websites without conducting a proper constitutional inquiry.3 Accordingly, we reverse the portions of the contempt order prohibiting Fox from posting on any website, blog, or social media, and remand for further proceedings. However, we conclude that the trial court did not err when it enforced the agreed upon terms of the settlement agreement and affirm the contempt order in that respect.

(See full case law reference below)

 

Although some readers may conclude that the opinion in Fox v. Hamptons at MetroWest declares that the First Amendment of the U.S. and Florida Constitutions applies in mandatory association-governed common interest communities, that conclusion is technically incorrect.

In this case, the Florida Appellate Court served as state actor, not the Condo Association.

And therefore the prior restraint on free speech ordered by the court has been deemed unconstitutional.

I repeat.

The Association has not been deemed a state actor or quasi government.

Therefore, several questions come to mind.

Can an association governed community continue their attempts to curtail unfavorable or controversial speech of  its members and residents by way of carefully crafted or amended CC&Rs?

Can an owner or resident legally “agree” to never disparage the association?

Would “anti-harassment” or “non-disparagement” clauses in governing documents, intended to prevent all negative or unfavorable speech by association owners and residents, actually survive a judicial Constitutional challenge?

Stay tuned. This matter is not yet settled.

 

References:

The Volokh Conspiracy Opinion (Washington Post Op-Ed)
Court reverses restriction on man’s blogging about his condo association, management company and neighbors

Florida Ct. Rules on Constitutionality of “Prior Restraints” That Prohibit Homeowner Postings about HOA on Internet
by Lawrence Szabo, Esq. | Aug 1, 2017 | Dispute Resolution

Fox v. Hamptons at MetroWest Condo. Ass’n, Inc. (Fla. App., 2017)

 


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