The Residential Tenant's Right to Freedom of Political Expression
| Jurisdiction | United States,Federal,Washington |
| Citation | Vol. 10 No. 01 |
| Publication year | 1986 |
[An] area likely to be litigated concerns speech in private residential communities. The exercise of free speech rights may be especially vulnerable in privately owned or managed communities such as apartment and condominium complexes. . . . In these communities, all the common areas, including halls, stairs, elevators, paths, streets, parking lots, and other community facilities, are usually owned by a private corporation or individual. If left unregulated, the owner could restrict the rights of the residents to assemble, speak, demonstrate, or advocate within their own community.
Justice Robert F. Utter(fn1)
I. Introduction
Three months before the publication of Justice Utter's comments, Virginia Paulsen, a residential apartment tenant living in Bellevue, Washington, filed a suit in King County Superior Court against her landlord, Seamark Properties, Inc.(fn2) Paulsen sought to establish her right under article I, section 5 of the Washington Constitution to post political campaign signs in the window of her apartment without the interference or attempted censorship of Seamark Properties.(fn3)
Virginia Paulsen signed a written lease with Seamark on June 13, 1982, in which she agreed to rent a two-bedroom apartment in the Westridge Apartments complex.(fn4) Her apartment was one of approximately eighty residential units located in eight buildings at the complex.(fn5) Paulsen's apartment had two windows overlooking 122nd Place N.E.(fn6) Paulsen moved into her apartment on July 7, 1982.(fn7)
In June or early July of 1984, Paulsen placed a political campaign sign in one of the windows of her apartment.(fn8) The sign proclaimed her support for a candidate in the Washington State gubernatorial primary to be held on September 18, 1984.(fn9) The cardboard sign measured two feet by three feet and was imprinted with the name of the candidate and the words "FOR GOVERNOR."(fn10) The sign was visible from the street, from the apartment complex parking lot, and from other tenants' residences.(fn11)
Toward the end of August, Paulsen placed a second sign in the other window on the west side of her apartment. The sign expressed her preference for a candidate for the United States House of Representatives.(fn12) This second sign was of the same size and construction as the first.(fn13)
On September 14, 1984, Paulsen was approached by the manager of the apartment complex. He informed her that the owner of the apartments had seen her campaign signs and that she was to take them down immediately.(fn14) Paulsen, fearing possible eviction if she refused to comply, did as she was told and immediately removed both campaign signs.(fn15) Four days later, Paulsen went to the apartment manager's office and requested an explanation for the owner's objection to her display of the political signs.(fn16) The manager showed Paulsen a copy of her lease agreement and pointed out the applicable provision in rule 13 of her lease: "No signs or placards shall be posted in or about the apartment building without written permission of the Landlord."(fn17)
Paulsen asked for, and was given, the name and address of the corporate owner of the apartment complex so that she could write and request permission to display her signs.(fn18) That same day, Paulsen wrote to the president of Seamark Properties, Inc. asking for permission to display her campaign signs:
Were I renting [a] house or living in my own home, I would have these signs posted on my property. Since the property around my apartment does not belong to me, I thought that the windows were the next most appropriate place. I would appreciate having your written permission to continue posting these signs. Thanks for your attention to this matter.(fn19)
The next day, Seamark's president denied Paulsen's request with the observation that "[i]f we allowed one person to post a sign, we would have to allow everyone to do the same. . . .(fn20)
On October 22, 1984 Paulsen filed suit in King County Superior Court, seeking injunctive relief, damages, and a declaratory judgment that Seamark had violated her right to freely speak under article I, section 5 of the Washington Constitution. The superior court agreed and on April 9, 1985, the court entered partial summary judgment in favor of Paulsen.(fn21) The court enjoined Seamark from preventing any tenant of the Westridge Apartments from displaying political campaign signs on the doors and windows of his or her apartment.(fn22) In addition, the court declared that rule 13 in Paulsen's lease agreement was an unlawful prior restraint on tenant freedom of political expression.(fn23) The issue of Paulsen's damages was reserved for trial.(fn24)
Virginia Paulsen's case is not unique. As Justice Utter predicted, tenants are "especially vulnerable" to censorship imposed by their landlords.(fn25) Every election year the Washington State chapter of the American Civil Liberties Union receives numerous complaints from tenants regarding landlord prohibitions against political campaign signs. This article will outline the arguments to be made on behalf of residential tenants who display political signs and who encounter threats of eviction, rent increases, and other forms of landlord opposition.
In Section II, we describe the development of the general principles of constitutional law applicable to disputes between property owners and tenants who wish to use the property owners' premises as a forum for the expression of the tenants' ideas and beliefs. Tracing the history of the United States Supreme Court rulings in this area, we analyze the waxing and waning of first amendment speech rights, the development of property-based first amendment speech rights, and the recognition of state constitutional free speech rights that are broader than their first amendment counterparts.
In Section III, we analyze the application of freedom of speech principles to disputes between landlords and residential tenants, when the tenants wish to display political signs on the leased property. Section III also presents and analyzes the arguments frequently relied upon by landlords. For the benefit of those tenants residing in states where state constitutional free speech rights have not been liberally construed, we discuss the common law property rights of tenants, citing reasons why those rights are superior to the property rights of landlords in the context of disputes over tenant political expression.
Finally, in Section IV, we conclude with an assessment of the public policy justifications for refusing to enforce contractual waivers (such as rule 13 of the lease in
II. The Constitutional Analysis of Conflicting Private Property Rights and Speech Rights
In the beginning things were simple. First amendment free speech rights were enforceable against governments but not against private parties. There was no such thing as abridgement of free speech by a private party. All this changed with the 1946 Supreme Court decision of
In
Gulf warned Marsh that she could not distribute religious literature without a permit and that Gulf would not issue a permit to her.(fn31) Marsh objected that the company rule prohibiting the distribution of religious literature was unconstitutional, and she refused to leave the sidewalk outside the company post office.(fn32) The company policeman arrested her.(fn33) She was charged with and convicted of trespassing in violation of Alabama State law.(fn34)
The Alabama Court of Appeals affirmed, holding that since the Gulf Corporation owned title to the sidewalk where she stood, Marsh had trespassed upon private property. The court held that first amendment principles were inapplicable because the sidewalk had not been irrevocably dedicated to the town of Mobile.(fn35) The Alabama State Supreme Court denied review.(fn36) The United States Supreme Court reversed, holding that the first amendment did apply even though Marsh was distributing literature on private property without the...
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