Housing Counsel: Can condos restrict political signs? Not in New Jersey

June 29, 2012

The First Amendment protections of free speech do apply to condominium restrictions. This was the decision of the New Jersey Supreme Court in an opinion handed down June 13.

The First Amendment states, in part, that “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” Students of the Constitution know that this protection was extended to the 50 states through the 14th Amendment.

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. Case law throughout the country has in the past upheld restrictions such as flying the American flag, posting “for sale” signs in unit windows or putting political campaign posters on front lawns.

In New Jersey, Wasim Khan was campaigning for a seat on his local town council and posted signs in his condo supporting his candidacy — one inside his front window and one inside the glass in his front door.

The Mazdabrook Commons, however, has a policy that prohibited signs — other than single “for sale” signs — on the exterior or interior of any unit. Khan was ordered to remove his signs. He complied but challenged the association’s decision in court.

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 . . . .

Based on this language, the high court in New Jersey held that Khan’s right to post political signs on his own property was permitted under the New Jersey Constitution. The high court conceded that its state’s constitution offers greater protection than the First Amendment. According to the court, federal case law requires some form of “state action” to trigger the protections of the First Amendment. State law, interpreting a broader constitutional right, does not.

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 court balanced the interference with the condominium property with the interference faced by Khan. “For him”, the court said, “it hampers the most basic right to speak about the political process and his own candidacy for office.” Political speech, the court held, lies at the core of our constitutional free speech protections.

Furthermore, the court chided the condominium for not adopting reasonable time, place and manner restrictions, nor implementing alternative means of political communications.

The U.S. Supreme Court has held that residential signs have long been an important and distinct medium of expression — a “venerable means of communication” that is both unique and important.

Could the New Jersey case affect condominium associations in the Washington area?

In the District, the federal law applies. Since condominiums are not states, unit owners here would not be able to assert the free speech protections of the Constitution. However, case law in the District requires boards of directors to be reasonable, and a court could find that a restriction on political advertising would be unreasonable and thus not acceptable.

The Virginia Constitution’s free speech protections mirror that of New Jersey:

“That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.”

Accordingly, it is possible one day that the commonwealth’s high court could hold that restrictions on political signs violate an owner’s free speech rights.

Maryland’s constitution reads: “That freedom of speech and debate, or proceedings in the Legislature, ought not to be impeached in any Court of Judicature.”

A clear reading suggests that while a condominium could attempt to impose restrictions on speech — especially political issues — the court would not uphold it. In other words, the court cannot impeach a unit owner’s right to free speech.

The issue of the right to speak freely in community associations is a hotly debated topic. Perhaps the New Jersey case is unique — or perhaps that case only applies to political speech. I am sure that we have not heard the end of this debate.

Benny L. Kass is a Washington lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. For a free copy of the booklet “A Guide to Settlement on Your New Home,” send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.

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