Freedom of speech in private communities

The state Supreme Court today is hearing (right now, actually — go here) an East Windsor case with widespread implications.

On the surface the case — which pits a group calling itself the Committee For A Better Twin Rivers against the Twin Rivers Homeowners’ Association — seems a local dispute. But the issues — whether residents who move into housing developments governed by homeowner associations sign away their constitutional rights as part of the covenenats they sign.

The case, as The Star-Ledger pointed out in a fairly extensive piece on Sunday, “is expected to reverberate around the country, helping to shape the way associations function and to determine what rights they grant in the future, experts say.”

“This case is so important because these type of living arrangements are simply becoming the reality of modern life,” said Ed Barocas, the legal director of the American Civil Liberties Union in New Jersey.

Association living has been a growing trend across the country. The Ledger story cited some interesting figures:

The number of Americans who live in association-governed communities has steadily climbed and shows no sign of slowing down. There are now 57 million people nationwide, including 1.2 million in the Garden State, living in these communities.

Monroe is a community with a significant association presence, with eight rather large senior communities (some of which have been engulfed in disputes between residents and community boards), while South Brunswick has a number of townhouse complexes and three new senior communities coming on line. Cranbury also has a senior community.

Residents in all of these developments face the same kinds of issues. Some of the issues — such as community governance — seem best handled by the communities themselves.

But others, like prohibitions on political signs (candidates, pro- or anti-war signs, etc.) , raise serious constitutional questions. Courts have a mixed record on many of these issues, with most deferring to private property rights, though not always. Courts tend to judge these cases using a delicate balancing process — private property v. speech rights.

In this case, I am hoping that the state court acknowledges the changing nature of the housing market. With more and more people moving into privately governed communities — often because they are the only affordable housing available — private governance is becoming the norm. It is imperative that the court act as it did in 1994 when it ruled that private political groups (an anti-war group) had a right to distribute fliers and collect petitions at a privately owned shopping mall. Malls, the court said at the time, have become the new town square. Communities like Twin Rivers are fast becoming towns unto themselves and residents should not have to sign away their constitutional rights to secure decently priced housing.

South Brunswick Post, The Cranbury Press
The Blog of South Brunswick

Author: hankkalet

Hank Kalet is a poet and freelance journalist. He is the economic needs reporter for NJ Spotlight, teaches journalism at Rutgers University and writing at Middlesex County College and Brookdale Community College. He writes a semi-monthly column for the Progressive Populist. He is a lifelong fan of the New York Mets and New York Knicks, drinks too much coffee and attends as many Bruce Springsteen concerts as his meager finances will allow. He lives in South Brunswick with his wife Annie. View all posts by hankkalet