December 4, 2014

Written By: Michael S. Karpoff

The New Jersey Supreme Court held on Wednesday, December 3, that the Schmid/Coalition test for determining whether the New Jersey State Constitution protects free speech on private property no longer applies to any common interest ownership community where the speaker is a resident of that community. In Dublirer v. 2000 Linwood Avenue Owners, Inc., the Court adopted a new standard for such situations, requiring courts to “focus on ‘the purpose of the expressional activity undertaken’ in relation to the property’s use” and to consider the "general balancing of expressional rights and private property interests” to determine “‘the fairness of the restrictions imposed’ with regard to residents’ free speech rights.”

In short, when it comes to a resident of a community association who seeks to express him- or herself within the community, the courts now are directed to look at the relationship of the speech to the residential nature of the property, the reasonableness of the restriction imposed, whether there are adequate alternate means for the resident to express him- or herself, and the impact the speech will have on other residents’ rights.

Cooperative’s Restrictions on Shareholder/Tenants’ Communications in Question 

In Dublirer, Mr. Dublirer sought to distribute fliers promoting his campaign for election to the board under other shareholder/tenants’ doors, but the cooperative’s rules prohibited such distribution without board consent, and the board denied consent. The Court concluded, though, that Mr. Dublirer’s attempt to communicate with other cooperative shareholder/tenants regarding his election campaign was protected speech, compatible with the residential nature of the property. Further, the Court found that allowing Mr. Dublirer to slide pamphlets promoting his campaign under the doors of other cooperative shareholder/tenants would have a minimal impact on those tenants, that there were insufficient alternatives available to Mr. Dublirer to speak directly to other shareholder/tenants, and that the cooperative’s rules against such solicitation were so restrictive as to be unreasonable.

The Court also criticized the board’s arbitrary exceptions to its rules. It noted that the cooperative’s rule banned distribution of written materials anywhere on the property without written authorization of the board (except for a single bulletin board in the rear lobby) but set forth no written standards to guide the board’s discretion. In addition, the Court rejected the cooperative’s argument that the board was not subject to the rule, noting that the board’s policy allowed it to praise its own achievements and criticize its opponents while prohibiting detractors a similar opportunity. Furthermore, by allowing police and fire fighters to solicit contributions door-to-door despite its no-solicitation regulation, the board was limiting free expression based on the identity of the speaker and the content.

Reasonable Time, Place and Manner Restrictions Permitted 

The Court reaffirmed that associations may impose reasonable time, place and manner restrictions on residents’ speech. By way of example, it said that the board could limit the number of written materials that a resident could distribute in a given period or limit the hours of distribution to prevent early morning or late evening activities and implied that boards may still limit locations for political signs. Also, the Court ratified the Schmid/Coalition test for situations where an outsider rather than a resident seeks to speak on private property. Because the decision refers to residents, though, it does create a question whether non-owner tenants, such as in a condominium, have the same speech rights as unit owners. 

This decision makes New Jersey unique, as it imposes State Constitutional free speech protections on private property that is not open to public access, albeit limiting such protection to resident speakers, something no other state has done. It provides a clear message to common interest ownership community governing boards that they must allow adequate means for community residents to be able to inexpensively communicate with each other and with the board and should not try to prevent debate over association political issues or criticism of the board. On the other hand, boards also may adopt reasonable restrictions on the time, place and manner of speech to protect the interests of other residents, maintain aesthetics, and prevent interference with or obstruction of community operations. Boards should consult with their attorneys to determine how to create that balance. 

For a copy of the full Supreme Court decision in Dublirer, click here. 

For additional information on this or any other legal issue facing your association, please contact a member of our Community Associations team.