Court: Free speech is not guaranteed
This is very unfortunate:
The state Supreme Court ruled today that residents of homeowners associations are not entitled to free-expression rights guaranteed by the Constitution. In the unanimous decision, the court overturned an appeals court ruling and reinstated a decision by a Mercer County trial judge that said the residents of Twin Rivers, a 10,000-unit housing development, did not have their rights violated when the homeowners association placed restrictions on where residents can post signs, and who can use the community room and newsletter.
3 comments:
This ruling is an expected outcome of the current widespread policy of privatizing local government that has created two separate but unequal Americas.
It is illogical to expect constitutional protections on the exercise of government authority to apply to a non-governmental entity.
If we want these protections at the local level, we must reverse the current policy of local government privatization fostered by state authorizing statutes and local government land use policies that require all new residential developments to be privately taxed and governed.
Evan:
I think your synopsis oversimplifies the ruling. In fact the Court explicitly says that homeowners are entitled to rights of expression, but associations are also entitled to establish reasonable rules regarding limitations on time, place, and manner. The issue is one of reasonableness (as it almost always is) and the court found that the business judgement rule was applicable and the rules imposed by Twin Rivers were in fact reasonable
What is very interesting is that this ruling was handed down in NJ which has very aggressive, affirmative rights language in its state constitution and a judicial history of liberally interpreting and applying individual rights. And it was an unanimous decision.
Tom:
Thanks for your comments, which are always appreciated. That synopsis actually was not my language. It was a paragraph I took from the "syllabus" of the decision that the court posted. I put it in italics to show that it is not mine. Sorry for not making it clearer.
On the merits, I agree with the basic principles you state: I think it is important to recognize both the expressive rights of residents and the power of association leaders to make reasonable rules. The problem is, the association's rule-making power is firmly entrenched in law, and I see less judicial willingness to stake out some expressive conduct areas as being really protected. And of course, how to apply those broad principles in practice is the tough part. There are issues of "how much and what kind of expression?" and "what is a reasonable rule?" that don't have easy answers, and that fuels disagreements (note the difference between the appellate court and the supreme court).
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