Co-Op Owner Has Free Speech Right to Leaflet as Part of Campaign for Co-Op Board Seat

Dublirer v. 2000 Linwood Avenue Owners, Inc., 220 N.J. 71 (2014).  In State v. Schmid, 84 N.J. 585 (1980), and New Jersey Coalition Against War in the Middle East v. JMB Realty Corp., 138 N.J. 326 (1994), the Supreme Court discussed the free speech rights of persons who seek to exercise those rights on property that is not their own (a university campus in Schmid and a shopping center in New Jersey Coalition).  More recently, the Court addressed free speech rights in private residential communities where the speakers live at the property.  Mazdabrook Commons Homeowners Ass’n v. Khan, 210 N.J. 482 (2012) (discussed here); Committee for a Better Twin Rivers v. Twin Rivers Homeowners Ass’n, 192 N.J. 344 (2007).  Today, in a unanimous opinion by Chief Justice Rabner, the Court clarified the standards to be applied in the latter category of cases.

Plaintiff owns an apartment (actually, since the development where he lives is a co-operative, he owns shares) at the defendant high-rise co-op building.  The co-op was run by a Board of Directors that consisted of unit owners.  Unhappy with the way the Board was operating, plaintiff sought to run for a seat on the Board.  He asked the Board whether he could distribute campaign flyers in the building.  Citing a “House Rule” that banned the distribution of written materials in the building without the Board’s approval (but with certain exceptions, the most important one applying to the Board itself, which was free to and frequently did distribute written materials in the building, including materials that attacked opponents of the Board), the Board rejected plaintiff’s request.  Plaintiff sued to overturn the House Rule.  On cross-motions for summary judgment, the Chancery Division entered judgment for the Board, rejecting plaintiff’s argument that the House Rule was unconstitutional.  Plaintiff appealed to the Appellate Division and won a reversal.  The case reached the Supreme Court, which affirmed the Appellate Division’s ruling that the House Rule violated plaintiff’s free speech rights under the New Jersey Constitution.

Most of Chief Justice Rabner’s opinion was devoted to a detailed review of Schmid, Coalition, Mazdabrook, and Twin Rivers.  Synthesizing those cases, the Court concluded that “restrictions on the right to free speech and assembly for residents of a private common-interest community” should be evaluated by focusing on “the purpose of the expressional activity undertaken in relation to the property’s use,” and the “general balancing of expressional rights and private property rights.”

Applying that test to the facts of this case, the Court easily found the House Rule invalid.  Plaintiff’s “message was related to the governance of the residential community in which he lived.”  Though he was running for a private Board, not for public office, “his message was akin to and should be treated as political speech, which is entitled to the highest level of protection in our society.”  The House Rule had the valid purposes of allowing residents quiet enjoyment, preserving privacy, and minimizing litter from printed materials.  But plaintiff’s proposed speech “would interfere only minimally with the interests of the apartment building and its residents.”  Plaintiff “did not seek approval to use a bullhorn or a loudspeaker, or to erect a large sign in the lobby.”  Residents could ignore or discard flyers he slipped under their doors.  Chief Justice Rabner also found unpersuasive the Board’s argument that “its notices do not create clutter yet other notices would.”

Any alternative means for plaintiff to communicate his message, such as by posting materials on a bulletin board at the rear of the building or spending $200 or more to mail flyers to everyone in the high-rise, were not a convenient or feasible means for him to engage in expressional activity.  Citing City of Ladue v. Gilleo, 512 U.S. 43 (1994), the Court stated that barring leaflets about political matters, the “most direct and least expensive way” to reach one’s neighbors about issues of mutual concern, “cannot be considered a minor restriction.  The available alternatives are simply not substantially the same as presenting a leaflet to a neighbor.”

The Board could adopt reasonable time, place, and manner restrictions, such as limiting the number of materials that can be distributed in a given period or restricting distribution to certain times of the day, in order to protect the interests of residents.  But the House Rule barred all speech, except for use of the bulletin board, and the exceptions for the Board’s own communications and certain others had “the natural effect of chilling speech.”

The result of this case was readily foreseeable after Twin Rivers and Mazdabrook.  The latter case involved a resident who was campaigning for public office.  A resident’s message about issues relating directly to the governance of his own residence is, if anything, more directly connected to the property on which he seeks to communicate that message than is a message about a campaign for public office.  The Court rightly vindicated free speech rights here.

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