Free speech rights in community association elections – distributing campaign materials in your community

March 9th, 2019 | Community Association Law Blog

March 16, 2019
By Eric F. Frizzell, Esq.

Annual elections in community associations can sometimes become quite heated. Disagreements may arise regarding the extent to which a Board can restrict candidates from campaigning in the community.

In the case of Dublirer v. 2000 Linwood Avenue Owners, Inc., 220 N.J. 71 (2014), the New Jersey Supreme Court considered the scope of residents’ free speech rights in a high-rise cooperative apartment building.

Robert Dublirer was a resident of the 2000 Linwood Avenue cooperative. He was a regular critic of the building’s Board of Directors and was interested in running for a seat on the Board. He asked the Board if he could distribute a campaign leaflet under unit doors in the building. The Board denied his request, citing a “House Rule” that barred soliciting and distributing any written materials anywhere on the premises without its authorization.

Dublirer sued the Cooperative and claimed that the House Rule was unconstitutional. In its defense, the Board asserted that the rule had two aims: preserve the residents’ quiet enjoyment of their apartments and cut down on litter or “paper pollution.” But the Board’s supposed justifications for the rule were undermined by the fact that on prior occasions the Board had distributed written “updates” under apartment doors throughout the building, which criticized the Board’s opponents, sharply challenged their credibility, competence, and motives, and touted the Board’s own accomplishments. The Board also had allowed the local police department, fire department, and ambulance corps to knock on residents’ doors and solicit donations during the Christmas holiday season. The Board also had permitted shareholders to knock on doors to solicit proxies for the annual shareholders’ meeting, although it prohibited them from discussing issues or candidates as they did so.

The Supreme Court found that the Board’s rule prohibiting residents from distributing written materials in the building violated Dublirer’s free speech rights under New Jersey’s Constitution. The Court stated:

“The important right of residents to speak about the governance of their community, which presents a minimal intrusion when a leaflet is placed under a neighbor’s apartment door, outweighs the Board’s concerns.”

The Court balanced Dublirer’s free speech rights against the Board’s other concerns and found that his free speech rights were more important:

• Even though Dublirer was not running for public office, the Court found that his message should be treated as political speech, which is entitled to the highest level of protection in our society.

• The Court further noted that “Dublirer’s proposed speech would interfere only minimally with the interests of the apartment building and its residents. Dublirer did not seek approval to use a bullhorn or a loudspeaker, or to erect a large sign in the lobby. And residents could simply ignore or throw away any literature he placed under their doors.”

In assessing the reasonableness of the Board’s ban, the Court considered whether convenient, feasible, and alternative means existed for Dublirer to “engage in substantially the same expressional activity.” The Board asserted that Dublirer could post materials on a bulletin board in the rear lobby of the building, distribute information at two annual board meetings, and use the postal system to send mailings at a cost of more than $200 per mailing. But the Court found that these available alternatives were “simply not substantially the same as presenting a leaflet to a neighbor” and found the Board’s rule unconstitutional as applied to Dublirer.

Importantly, however, the Court made it clear that a community association’s Board is not entirely powerless with regard to regulating the exercise of free speech rights by its residents. The Court stated that a Board still can adopt reasonable time, place, and manner restrictions on such communications, to serve the community’s interest. As examples of permitted restrictions, the Court noted that a Board “could reasonably limit the number of written materials that an apartment dweller can distribute in a given period” and “reasonably limit the hours of distribution to prevent early morning or late evening activities” because those “types of restrictions would promote the quiet enjoyment of residents of the apartment complex without unreasonably interfering with free speech rights.”

Please contact our law firm if you have questions about free speech rights in your community.