Condo Media - January 2016 - 32

DOES POLITICAL
SPEECH REQUIRE
SPECIAL PROTECTION?
Attorneys differ on the extent to
which the Preu decision has altered
the freedom of speech analysis of
condominium rules.
But even the attorneys relatively
unperturbed by Preu recognize one
area in which that decision and its
judicial progeny may eventually have
an impact: political speech.
In a decision that came after Preu
(Mazdabrook Commons Homeowners'
Association vs. Khan), the New
Jersey Supreme Court concluded
because political speech "lies at the
core of our constitutional free speech
protections," the need to protect it
trumped a community association's
right to prohibit the display of signs
in common areas.
Significantly, that was a New
Jersey decision, not applicable in
Massachusetts, and it was based on
broad protections in the New Jersey
constitution that aren't duplicated
here. Nonetheless, some attorneys see
in Mazdabrook a warning light that
condominium associations should
recognize.
Thomas Moriarty, Esq., of Marcus,
Errico, Emmer & Brooks, P.C., who
takes a relatively benign view of
Preu, agrees that a blanket ban on
all political signs in common areas
might "trouble" some Massachusetts
courts, as it did the New Jersey court.
But a rule restricting the size and
location of the signs would probably
pass muster, even if the courts
decided political expression warrants
special protection.
However, a provision in the
Massachusetts Constitution (Article
9) prohibiting interference with
elections, when combined with Preu's

32

CONDOMEDIA

application of constitutional scrutiny,
may add another twist to this issue.
A COMPLICATING FACTOR
Association attorneys generally
agree the broad authority boards
have to regulate activities in
common areas would allow them to
prohibit campaign participants from
circulating petitions or conducting
polls in a condominium community-
both arguably forms of political
expression. But what if owners argue
these restrictions interfere with
their right to obtain election-related
information and to participate fully in
the election process?
Should this question arise in the
form of a legal challenge, Moriarty
thinks the courts would focus on the
principle they have long recognized:
People who purchase condos do so
voluntarily and agree to accept the
restrictions community associations
impose. That analysis might change,
he acknowledges, if affordability
constraints make condominiums
the dominant form of ownership
and living in common-interest
communities becomes more of a
necessity and less of an option. If
condo ownership isn't voluntary, then
waiving constitutional rights may not
be deemed voluntary either.
In grappling with this question,
Moriarty says, the courts "would be
doing a balancing act," and they could
decide, like the New Jersey court
did, that the protection of at least
some individual rights trumps the
governing authority of condominium
associations. "The courts aren't there
yet," he says, "but they could move in
that direction."

AN UNWARRANTED INTRUSION
Ellen Shapiro, Esq., of Goodman,
Shapiro & Lombardi, LLC, thinks
the courts are already moving
steadily along this path. The Preu
decision and others have blurred the
traditional distinction courts have
made between public and private
property, "inappropriately extending
constitutional protections into private
property where they don't belong,"
she says.
If the courts say that otherwise
reasonable restrictions in private
communities-banning signs to
preserve the appearance of common
areas or barring physical contact with
a disruptive owner-are impermissible,
then they're sliding down a dangerously
slippery slope, Shapiro believes.
But the courts would also have
to consider the purpose of a condo
association, recognizing many people
live in these communities "not just
because of their affordability, but
because they want the controls over
aesthetics and behavior a community
association can provide," Moriarty
says. "Constitutional protections are
important, but the right of citizens
to live in a particular environment is
important as well."
Moriarty thinks the courts will
ultimately support the right of selfgoverning private communities to
"reasonably restrain" even fundamental
individual rights, such as freedom of
political expression. Shapiro isn't so
sure. "I'd bet that the balance will tip in
favor of the Constitution over private
property rights," she says. "That's how I
see it-much to my concern."
Condo Media - January 2016

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