July 27, 2007

By Professor Frank Askin (View author info)

Residents of homeowners' associations seeking free speech rights within their communities lost the immediate battles but may have won the war in the decision issued yesterday by the New Jersey Supreme Court in the Twin Rivers case.

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 other regulations upheld involved restrictions on access for opposing views in the community newspaper and an allegedly excessive fee for rental of the community room.

The Court held that in light of the many alternative channels for communication available to Twin Rivers residents, the challenged rules were reasonable time, place and manner regulations.

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.

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.

On the other hand, homeowners will be disappointed that the Supreme Court declined to find that homeowner associations themselves are "constitutional entities" more fully susceptible to the constraints of the State Constitution - as it found as to the state's ubiquitous regional shopping malls in an earlier case.

For the moment, the only constitutional provisions applicable appear to be the free speech/communication provisions of Article I. Although In a rather ambiguous section of the opinion, the Court does note that the private dwellings of residents are also protected "under due process standards from untoward interference with or confiscatory restrictions upon its reasonable use." Only time will tell how that particular principle will be applied.

But in the meantime, the homeowners boards and management associations which were aligned on the side of the Twin Rivers Association should hold their applause at the outcome of the case.

(In the name of full disclosure, it should be noted that the writer was counsel for the Plaintiffs in the Twin Rivers case.)