The Constitution Protects Freedom of Speech, But Not In Community Associations

Published on: March 24, 2011

Condominium owners have no constitutionally protected right to freedom of speech within their common interest ownership communities. This has the ring of heresy to those who view the First Amendment, correctly, as moral and legal bedrock on which our democracy rests. But other legal principles add shades of gray to an area that is often viewed as black and white. Two points in particular create the framework for this discussion:

  • The freedom of expression the First Amendment guarantees is broad, deep, and strong, but it is not absolute. It does not allow anyone to shout fire in a crowded theater, it does not protect from liability statements that are libelous, nor does it permit expressions that threaten the life of the president or incite others to violence.
  • The First Amendment says “Congress shall make no law….” The operative word is “Congress.” The First Amendment, as made applicable to each state by the Fourteenth Amendment, forbids governmental entities from infringing on the free speech rights of citizens, but it imposes no comparable constraints on private entities. A City Council could not prohibit citizens from publically distributing flyers objecting to a proposed ordinance, as long as they weren’t breaking windows, waving weapons, or violating other laws. But a community association board, at least under free speech analysis, might well be able to prohibit owners from posting signs in common areas or distributing flyers even if they contain “speech” decrying a special assessment as “illegal” or demanding the recall of the board.

Individual vs. Community Rights

Many community associations have rules barring signs, or objects of any kind, in common areas. Owners challenging these rules have argued that community associations are like mini-municipalities, and so are subject to the same free-speech requirements as any governmental entity. There are no appellate decisions on that issue in Massachusetts, but courts in other jurisdictions have rejected this theory. The New Jersey Supreme Court did so forcefully in a 2007 decision (Twin Rivers) affirming a board’s right to restrict signs and control access to an association newsletter and to common area meeting rooms.
In addition to ruling that the association was not the equivalent of a municipal government, the New Jersey court also noted that condominium residents voluntarily waive some of their constitutional rights when they agree, as a condition of living in a common interest community, to abide by its rules and regulations. Owners can’t plant campaign signs outside their front door or fly flags of any size wherever they choose, as they could in a single-family dwelling, if the association’s rules restrict these activities.

In a common interest ownership environment, the New Jersey court ruled (and others have agreed), the collective property rights of a community association may outweigh the individual rights of its residents, including the constitutional right to freedom of speech.

While association rules do not have to fully respect the First Amendment rights of owners, they may have to comply with other constitutional provisions. In Massachusetts, for example, boards might be prohibited from limiting speech connected to a state or local election pursuant to a provision of the state constitution pertaining to freedom and equality of elections (Article 9). If association rules prohibit solicitations in the community, a board could prevent an owner running for a board position from going door-to-door seeking support, but it might not be able to bar a candidate for state office from doing so. There is simply no direction from any appellate Court in the Commonwealth on these issues.

Such constitutional conflicts are likely to be rare, however. In most cases, the test for association rules limiting speech will not be whether they are constitutional; it will be whether the rules and the purposes for which they were enacted are reasonable and whether they are authorized by the community’s covenants or bylaws.

Criticizing the Board

Standards of reasonableness are subjective, but they are not obscure. For example, many associations prohibit owners from displaying signs either on the common area or within their units if visible from the outside. Several courts, including at least one in Massachusetts, have upheld these rules, although they limit speech (even in some circumstances within individual units), because their purpose – protecting the architectural integrity of the community – is reasonable. Such prohibitions are not based upon what the signs “say” and, as such, are more likely to be accepted as reasonable.

On the other hand, a court would almost certainly reject as unreasonable a regulation prohibiting owners from criticizing the board or its decisions, because the purpose – stifling criticism – would not be reviewed as reasonable or consistent with good governance in a community association, which requires open and honest communication between owners and board members. Therefore, even though First Amendment analysis is not technically applicable, the concepts that guide a court in the First Amendment context will remain relevant.

Association rules limiting speech should not target the views owners express, but the manner in which they express their views. In community associations, as anywhere else, residents should be able to speak their mind; they should not be able to shout their opinions through a megaphone in the hallway at 3 in the morning. Speech should generally be permitted; disturbing the peace – creating a “nuisance” in violation of an association’s rules – should not.

An association we represent is involved in a court battle with an owner who has, among many other objectionable actions, shouted obscenities at board member and association employees, placed dog feces in an envelope addressed to the board president, harassed owners and association employees, and placed signs and posters in common areas complaining about the board and the association’s management. A trial court agreed with the owner that some of those activities fall under the category of constitutionally protected speech the board can’t restrict. We are arguing on appeal that the First Amendment doesn’t apply and that the rules the board is enforcing – banning signs in the common areas and prohibiting behavior that creates a “nuisance” or threatens other residents – are reasonable.

Limits of Authority

Community associations can limit the rights of owners, but their authority to do so is also limited. As the court emphasized in Twin Rivers, and as noted earlier, the limitations associations impose on individual rights must be reasonable. Equally important, the activity itself must be within the permissible scope of the association’s regulatory authority. A dispute in a Michigan condominium illustrates where some of those boundaries lie.

An owner established a Web site, intended, he said, to bring owners together to discuss common problems. The association’s management company said the site too closely resembled the association’s site, and ordered the owner to remove it. The owner instead changed the name and added a disclaimer, stating that the site was not sponsored by the association and that the views expressed were his own. Not satisfied with that response, the association’s attorney wrote the owner, complaining that the site “is portraying inaccurate information and should be shut down immediately.”

The owner has vowed to fight, and should this go to court, a favorable outcome for the board is far from certain. Boards can control what owners say on an association Web-site; they can control the manner of expression within the common areas. But they have absolutely no control over what owners say on their own Web sites or (with some exceptions) within their homes. Boards may be able to prevent owners from distributing newsletters or flyers in common areas, but they can’t prohibit owners from producing those materials and they can’t control what owners say in them. It would be a significant extension of existing powers if a court were to recognize that a condominium board has authority to regulate a unit owner’s speech on a Web-based platform that is demonstrated to be wholly unrelated to any platforms the association controls.

What if the comments owners make in their own space are offensive, inaccurate, or even potentially slanderous or libelous? The board’s legal options for recovery are limited. Among other limitations, a community association is not engaged in economic activity which makes a damage claim difficult, if not impossible, to establish.

If the offending comments target trustees personally, then they may be able to pursue defamation claims as individuals, but individual actions would also face an uphill legal climb. For one thing, some jurisdictions have held that association trustees, by virtue of their leadership role in the community, inject themselves voluntarily into public debates and so qualify as “limited public purpose” figures. As a result, in order to prove defamation, trustees must show not only that statements are untrue (the base-line requirement for private individuals), but also that the statements were made maliciously – that is, that the individuals responsible knew the statements were false, or made them with “reckless disregard” for their truth. And the evidence trustees present to prove malice must be “clear and convincing”—a tough standard to meet. Even under a lower burden or liability, establishing meaningful damages is difficult.

Conveying the Right Message

Practical considerations as well as legal obstacles often argue against legal action. Suing an owner for making negative comments – even offensive ones may be viewed by other owners as a ham-handed effort to quash dissent. Conveying the impression that the trustees will not accept criticism could prove more damaging to the board and to the community than anything disaffected owners might say.

This is not to suggest that trustees should never respond to criticism. On the contrary, they have an obligation to correct misinformation and, in certain circumstances, a clear interest in explaining the reasoning behind the decisions they make. But they must also be careful to avoid any suggestion that the board is discouraging dissent or trying to silence critics. This is a particular concern when the board enforces rules that seem to restrict the ability of owners to speak freely. We suggest these general guidelines:

  1. Review the association’s documents. If the by-laws or rules prohibit signs in common areas, enforce those restrictions consistently. Prohibit all signs and posters, not just those criticizing the board.
  2. Don’t over-reach. Limit any enforcement actions pertaining to oral statements to activities in the common areas or behaviors that create a nuisance, threaten, intimidate, or harm others. Direct any enforcement at the methods of expression, not at the views expressed.
  3. Don’t over-react. The hotter the criticism, the cooler the board’s response should be. No matter how great the provocation, no matter how insulting or inaccurate or offensive the comments, the board should not respond in kind and sometimes it shouldn’t respond at all. Criticism is part of a trustee’s job; a thick skin usually, if not always, will be the most effective defense against it.