Hank Kalet

I understand the state Supreme Court’s reasoning in yesterday’s decision saying that homeowner associations can limit the speech rights of residents, I just don’t hink it’s healthy for democracy.

As reported in our sister paper, The Windsor-Heights Herald,

In an opinion delivered by Justice John E. Wallace, the court asserted that the association’s restrictions on posting political signs, access to the community center and access to authorship of the community newsletter are not governed by Article 1 of the state constitution because the association is a private entity. Therefore, the court states that residents relinquish certain rights when entering into their agreement to live in the community.

As I said, understand the reasoning, though it seems to fly in the face of the court’s 1994 and 2000 rulings granting political groups access to private shopping malls on the grounds that they are the new main streets. Like malls, these homeowner-run developments have come to take on more and more of the functions of local government — a privatization of government that is troubling, to say the least.

This is what the appellate court said last year in siding with residents in the East Windsor case:

The manner and extent to which functions undertaken by community associations have supplanted the role that only towns or villages once played in our polity mirrors the manner and extent to which regional shopping centers have become the functional equivalents of downtown business districtscourt said. It follows that fundamental rights exercises, including free speech, must be protected as fully as they always have been, even where modern societal developments have created new relationships or changed old ones. Expressive exercises, especially those bearing upon real and legitimate community issues, should not be silenced or subject to undue limitation because of changes in residential relationships, such as where lifestyle issues are governed or administered by community associations in addition to being regulated by governmental entities.

Frank Askin, the attorney representing the homeowners (not the association) offers a mixed view of the case, saying it may ultimately grant homeowners more rights:

In the most significant sentence in the obtuse 37-page opinion, the Court said that the more than one million residents of common-interest communities in New Jersey may “successfully seek constitutional redress against a governing association that unreasonably infringes their free speech rights.”

It is the first state high court in the country to rule that private homeowner associations may be subject to the free-speech provisions of a state constitution.

Of the three Twin Rivers regulations challenged in the case, the Court held that they were reasonable restrictions on residents’ rights, but not before rewriting one of them — the sign-posting rule — to make it more free-speech friendly.

On that part of the case, the Court upheld a regulation that it said allowed homeowners to post a political sign in every window of their home.

However, when the case was first brought, the regulation allowed only one sign per property – either in a flower bed adjoining the house or in a window. The trial court had misread the regulation to allow a sign in every window.

In adopting that interpretation of the rule, the Supreme Court said that it was not unreasonable, warning that “any restrictions on the exercise of [free speech] rights must be reasonable as to time, place and manner.”

The court also ruled that the other two regulations — “restrictions on access for opposing views in the community newspaper and an allegedly excessive fee for rental of the community room” were reasonable because there were “many alternative channels for communication available to Twin Rivers residents,” Askin says.

Unlike, many common-interest communities, Twin Rivers allows residents to “walk through the neighborhood, ring the doorbells of their neighbors and advance their views.” The Court noted that the Twin Rivers plaintiffs had even distributed their own newspaper without interference.

His sense is that

This discussion in the opinion should give pause to the hundreds of other community associations in New Jersey which try to forbid contact among residents by prohibiting door-to-door solicitations and petition gathering.

Perhaps, though I think he is being too generous to homeowner boards and associations. I suspect that homeowner associations will opt for more restrictive covenants and that it will be up to residents to challenge them — meaning more court costs for residents and more disputes about speech.

And in the end, the privatization of our public spaces — of our main streets and neighborhoods — continues apace.

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