Numerous condo and co-op buildings restrict the amount, place or even the contents of notices and other paper that residents want their neighbors to see.
The arguments in favor of the restriction range from preserving dignity and removing clutter to avoiding political disputes.
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, lawyer and columnist Benny Kass observes in the Washington Post. But a recent court ruling suggests the possibility that courts in some states may rule on the side of building residents, rather than their boards.
He reports that an opinion handed down by the New Jersey Supreme Court on June 13 found that the First Amendment protections of free speech do, in fact, apply to condominium restrictions. But the court based its decision on the New Jersey Constitution, which states that “no law shall be passed to restrain or abridge the liberty of speech or of the press. . . “
In the past, Kass says, case law throughout the nation has upheld restrictions against, for instance, flying the American flag, posting “for sale” signs in unit windows and putting political campaign posters on front lawns.
The New Jersey Constitution states: “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 . . .”
Conceding that the state’s Constitution offers greater protection than does the First Amendment, the high court went on to observe that federal case law requires some form of “state action” to trigger the U.S. Constitution’s free speech amendment. Kass elaborated on the decision as follows:
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 said.
The case was brought by a town council candidate who posted signs promoting himself on two windows of his condo.
Kass noted that the right to speak freely in community associations is a hotly debated topic. He went on to say that the constitutions of Maryland and Virginia apparently offer the same, if not similar, protections of free speech.
Our own New York State Constitution begins with a Bill of Rights that seems to me to offer the same protections. It says:
Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.
“Perhaps the New Jersey case is unique — or perhaps that case only applies to political speech,” Kass said. “I am sure that we have not heard the end of this debate.
I can’t wait for the debate to be continued here.
Tomorrow: Weekly Roundup
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