In Mazdabrook Commons Homeowners’ Ass’n v. Khan, 210 N.J. 482 (2012), the New Jersey Supreme Court recently held that a homeowners’ association’s rules that banned the posting of political signs on property owners’ residential units was unconstitutional.
In that case, Wasim Khan (“Defendant”) was a resident of Mazdabrook Commons, a planned townhouse community that was managed by a homeowner’s association, (“Plaintiff”). When Defendant ran for town council, he posted at his private residence two signs in support of his candidacy. Plaintiff notified him that the signs violated the association’s rules and ordered him to remove them.
Plaintiff brought suit in the Superior Court, Law Division, Special Civil Part (“Lower Court”) based upon an objection it had to the Defendant’s rose garden. Defendant filed a counterclaim against Plaintiff, claiming that its sign restrictions violated his free speech rights under the New Jersey Constitution (“State Constitution”). The Lower Court dismissed Defendant’s counterclaim and held that the sign restrictions did not violate his constitutional rights. Id. at 489.
Defendant appealed to the Appellate Division of Superior Court of New Jersey (“Appellate Court”). The Appellate Court explained that the sign restrictions were not content-neutral; favored commercial speech; and foreclosed an entire type of communication that had long been recognized as significant. Accordingly, it held that Plaintiff’s sign restrictions were unconstitutional. Id. at 489-490.
Shortly thereafter, Plaintiff appealed to the New Jersey Supreme Court (“Court”). Plaintiff argued that a private residential community did not violate free speech rights by the enforcement of rules agreed to by all unit owners. Plaintiff cited the fact that the unit owners received various documents in connection with the purchase of their townhome. Those documents restricted the posting of signs. Id. at 487. For example, the document entitled Rules and Regulations specified that “[n]o signs of any kind will be placed in or on windows, doors, terraces, facades or other exterior surfaces of the buildings or Common Facilities…” Id. at 488.
In its analysis, the Court explained that the State Constitution guarantees individuals a broad, affirmative right to free speech. Id. at 492. The Court quoted the relevant portion of the State Constitution as follows:
[e]very person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press.”
N.J. Const. art. 1. ¶ 6; Id. at 492.
The Court noted that the affirmative guarantee in the first sentence of that provision offers greater protection than the First Amendment. The First Amendment bars the government from restraining speech. However, in New Jersey, an individual’s affirmative right to speak freely, in certain situations, is protected not only from unreasonably restrictive and oppressive conduct by the government, but also from private entities. Id. at 493.
Next, the Court applied the three-factor test outlined in State v. Schmid, 84 N.J. A. 2d 615 (1980), to determine the parameters of free speech rights on privately owned property. Under that test, courts considered the following three factors:
(1) the nature, purposes, and primary use of such private property, generally its “normal use”;
(2) the extent and nature of the public’s invitation to use that property; and
(3) the purpose and the expressional activity undertaken upon such property in relation to both its private and public use.
Id. at 494.
Furthermore, the Court applied the balancing test laid out in Coalition Against War in the Middle East v. JMB Realty Corp., 138 N.J. A. 2d 757 (1994). In that case the court considered not only the three-factor test, but also applied a balancing test. That test required the Court to weigh a private property owner’s interest in controlling activities on their property against the limited and important free speech right sought. Id.
The Court applied the three Schmid factors. In regard to the first factor, it explained that Plaintiff was a common-interest community. The nature of the property was distinguishable from other forms of real property because there was a commonality of interest. Thus, owners had to comply with certain common restrictions for the overall benefit of the development. Id. at 499.
In regard to the second factor, the Court explained that the property was not public because there was no broad invitation to travel to, or shop in, the development. On the other hand, the importance of the second factor was muted due to the fact that Defendant was not an outsider or visitor; rather, Defendant was the owner of the restricted property.
In its analysis of the third factor, the Court stated that Plaintiff restricted political speech which lied “at the core” of our constitutional free speech protections. Further, it explained that free speech protections assumed particular importance in the context of a person campaigning for public office.
Candidates have a constitutional right to engage in discussion of public issues and to vigorously and tirelessly advocate their own candidacy. Accordingly, the Court held that factor three favored Defendant because Plaintiff’s sign restrictions prevented Defendant from advancing his own candidacy for Town Council by posting signs at his residence. Id. at 499-500.
The Balancing Test
Further, the Court stated that Plaintiff’s sign restriction was a near-complete ban on residential signs. On the contrary, Defendant’s use of his signs constituted only a minimal interference with the Plaintiff’s property or common areas since they were placed on his own private residence. Therefore, the Court determined that Defendant’s right to promote his candidacy outweighed the relatively minor interference his conduct posed to the private property interest. Id. at 500-501.
Accordingly, the Court held that Plaintiff’s sign restrictions were unreasonable and in violation of the State Constitution. As such, it deemed the documents that memorialized the sign restrictions unenforceable. However, the Court did reaffirm an association’s power to adopt reasonable time, place, and manner restrictions to serve the community’s interest. Id. at 507
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