Chapter 10 - § 10.9 • FREE SPEECH

• Jurisdiction: Colorado

§ 10.9 • FREE SPEECH⁴⁰³

A common interest community can become a hub for political activism. That is especially the case in communities with large retired populations. Association leaders have been known to try to influence the decisions of state and local elected officials by attempting to "deliver" votes as a block. At the same time, they may seek to check "dissident"⁴⁰⁴ owners who are not following the "party line" or ban "outsiders" (nonresidents) from campaigning in the common interest community.⁴⁰⁵ A New Jersey court held that an association could not prohibit distribution of campaign literature on condominium property, although it conceded the decision was "extremely fact sensitive."⁴⁰⁶ The facts were that polling booths were located on condominium property where the condominium residents constituted 24 percent of registered voters in a town and the particular voting district was made up entirely of those residents. The association endorsed candidates. It also distributed materials listing endorsements, provided absentee ballots, organized voter registration, facilitated get-out-the-vote efforts, and provided poll workers. The appellate court, applying the facts to law interpreting the state's free speech protections, concluded:

The activities engaged in by the Association are similar in nature to what would be expected from a political organization, from its endorsement of candidates to its get-out-the-vote-drives during election time. This court finds that there consistently has been at election time, significant dedication of this property from private to political and thus public use.⁴⁰⁷

In a subsequent New Jersey case, the state supreme court ruled broadly on the question of free speech in common interest communities.⁴⁰⁸ At issue was a community of approximately one square mile in size with about 10,000 residents. Some of those residents challenged restrictions that limited the number and location of signs and controlled access to a community room. They also argued that they should have "equal access" to the community monthly newspaper, which they characterized as a "trumpet" for the association president. Their action was based on state constitutional guarantees of free expression. The plaintiffs argued that the association effectively replaced the role of a municipality in their lives and, therefore, its rules and regulations should be subject to the free speech and free association clauses of the New Jersey Constitution. The court was unconvinced. It said the association was not acting as a municipality, but was a private, residential community whose residents contractually agreed to abide by its rules and regulations. While the court conceded that there could be circumstances in which residents of a homeowners association might successfully seek constitutional redress against a governing association that unreasonably infringed on free speech rights, in the case before the court, the "minor restrictions" on expressional activities were not unreasonable or oppressive and did not violate the state's constitution.

The New Jersey Supreme Court weighed in yet again on the question of free speech in a case concerning a candidate for a governing board. The candidate asked permission to distribute campaign materials in the building, and the governing board denied the request based on a rule that barred soliciting...