Political free speech both without and within the HOA

I recently came across a post by a Massachusetts law firm , MEEB, that basically summarized my arguments and positions on unconstitutional HOA governments.  In particular, alleged waivers of constitutional rights and the prohibition against private contractual government  HOAs from restricting political public speech.  That applies to both in the public domain and within the HOA community domain.

In its 2012 post, “Court Decisions May Make it Harder to Restrict Free Speech Rights,” decisions in 3 court cases (VT and MA) are reviewed. In essence, these decisions challenge “an assumption long held and widely recognized by courts in many jurisdictions that the freedom of speech guaranteed in the U.S. Constitutions does not apply in condominium communities.”  The reason offered, as I’ve mentioned many times, “citizens, a community association is not a governmental entity, so its rules are not subject to the same strict constitutional tests.

In contrast to Twin Rivers,  in Mazdabrook “the court noted [political speech] ‘lies at the core’ of our constitutional free speech protectionsPolitical signs advancing a resident’s candidacy are not by their nature incompatible with a private development. They do not conflict with the purpose of the development.”  And the court concluded “that the sign policy in question violates the free speech clause of the State Constitution.”

 In regard to the alleged waiver of fundamental rights (my emphasis),

The New Jersey court expressed serious concerns about whether and how condominium owners can  voluntarily waive their constitutional rights. Such waivers, the court said, “must be knowing, intelligent, and voluntary…. [and] at the very least, [they] must be clear.  Mazdabrook’s rules did not specifically require Khan to waive his free speech rights, the court noted. Rather, “he was asked…to waive the right to post signs before getting board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights.”

 Mazdabrook’s rules did not specifically require Khan to waive his free speech rights, the court noted. Rather, “he was asked…to waive the right to post signs before getting board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights.”

In the Preu (MA) decision, the court addressed state actions by the HOA,

The court found that a law suit filed to enforce a community association’s rights under the state condominium statute constituted a “state action” that could subject association regulations to a constitutional test.

 The constitutional test would require strict scrutiny, which requires a necessary and compelling reason to restrict fundamental rights. Lesser loss of rights, say under state laws, would be subject to a lessor test, but more than the broader “a government’s general interest” that can easily be extended beyond justifiable logic.

In addition to the above rulings, California’s SB 1265 that states the HOA is a quasi-government faces a test in the legislature tomorrow. Let’s hope it passes.  The sponsor, Senator Wieckowski,  also managed to have SB 407 passed last year that broader prohibits restrictions on free speech regarding meeting rooms, assemblies, use of common areas, etc.

“It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.” (New Civ. Code 4515(a).

Now members can even make use of the ‘house organ,’ the monthly online or hardcopy communication provided to the membership for equal access to the membership for campaigning or publicizing opposing views.

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Published in: on June 19, 2018 at 3:15 pm  Comments (4)  

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4 CommentsLeave a comment

  1. when you wrote: Now members can even make use of the ‘house organ,’ the monthly online or hardcopy communication provided to the membership for equal access to the membership…

    How will they get past intractable boards? Is it in the law itself? Or are we expected to rely on the good faith and will of trustees?

    • Very good point! Since the HOA holds all the aces, an intractable board is one that will ignore the law or the intent of the law. What these cases, and others, provide is the ammunition, the legal support, in a lawsuit against the objections of the board.

      Your state probably has an anti-slapp law that can be used to oppose any action of the board to stop or prevent the lawsuit. It can be charged that the opposition is aimed to thwart public participation in the HOA governance.

      Sadly, until the boards and the national protagonist Evil Empire realize that they are fighting a losing battle, the owner has no other recourse but to sue. WE NEED MORE POSITIVE CASES IN REGARD TO CONSTITUTIONAL AND FUNDAMENTAL RIGHTS PROTECTIONS.

  2. Read more about your constitutional free speech rights. You can exercise them in the broadest sense of “compelled speech” where you are restricted in your otherwise freedom of choice.

    See “Court holds HOA elections are a matter of public interest,” July 2011; and “Protecting HOA political free speech on matters of general community interest,” August 2015.

  3. Amen!!!

    Though in my HOA, they redefine volunteers as not part of HOA.

    These volunteers will threaten to take your children away, threaten to jail you, for speaking up for your rights.

    If you think the 2,000 kids in camps who are being separated before deporting us bad, try life in an HOA, where everyone smiles and does the same actions BEHIND your back. At least these mothers know WHO is behind it! CPS won’t inform us of who called, though our attorney and me both feel certain we can identify the caller.

    >


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