Third Party & Independents Archives

Can Preferences Trump Rights?

The New Jersey Supreme Court is hearing a case on what limits a homeowners association can place on the free speech of residents. It ought to be a great topic of conversation, since it pits two cherished values against one another. Should one civil liberty trump another?

The plaintiffs bring several issues to the court, but the main one is regarding restrictions on the display of political signs in the community. An NPR story reports that this issue sprang up from one of the plaintiffs trying to put up a political sign on her property, in support of her run for a seat on the Twin Rivers homeowners association. She initially lost, due to the prevailing wisdom that this is a private contractual matter, and she knew about the covenants of the community when she chose to live there. But the case has continued, because

the plaintiffs contend the association should be treated like any other government entity, because it can issue fines and place liens against homes.

In other words, plaintiffs argue that a municipal government would not be allowed to violate the rights of citizens as outlined in the state constitution, and a homeowners association ought not to either. The appeals court was unanimous on this point. Personally, I disagree – I side with the conventional wisdom, and the sanctity of the private contract these homeowners have entered into. This is something homebuyers need to consider ahead of time. I am disappointed – but not surprised – to see the ACLU siding with the plaintiffs.

The Court’s opinion is not expected for several months, but it may be very important to the future of these associations. For one thing, over 50 million Americans live in these types of communities – 1 in 6 Americans, as NPR points out. I was astounded by that number, until I realized the number of urban homes – specifically, condominiums – and retirement communities this must include. If the plaintiffs prevail, the freedom of individuals to contractually promote a particular sense of aesthetics will be denied, in favor of the notion that a citizen’s preferred avenue of expressing themselves does in fact trump other liberties. That would be a terrible shame.

For those interested, the New Jersey Law Blog includes a link to the webcast of the arguments.

Posted by Wulf at January 6, 2007 9:34 AM
Comment #201737

Just another reason not to move into any community that has Homeowners ASSociation. For the most part these ASSociations are ran by little dictators with over inflated egos that like to micromanage everyones lives.
In this case I believe the Homeowners ASSociation is out of line as freedom of speech is a right under the US Constitution and NO ONE has the right to deny it. Private associations are subject to the Constitution just like public ones in this case.
I can understand some restriction, but a political sign falls under freedom of speech. And during the campaign I don’t see how they could tell someone they can’t put it up. After the campaign though I can see them making the person take it down. I believe that city and county governments need do this too.
As for the use of the meeting rooms I would say the association does have the right to deny access to them in certain cases. Like they can deny access to anyone not living in the community or that’s defaulted on the dues. And I’m sure they have dues.

Posted by: Ron Brown at January 6, 2007 1:06 PM
Comment #201739

My Gosh Ron 2 things we seem to agree on. I would not live anyplace that had an HOA. However I think the constitution applies to government only and if the plantiff agreed to the terms of the HOA then they should live by them. I do hope the plantiff wins and a precedent is set for corporations and HOA etc to have to abide by the constitution the same as the government.

Posted by: j2t2 at January 6, 2007 1:16 PM
Comment #201753

It’s possible that these HOA contracts are unlawful or unconstitutional? I guess it would be something the court could decide. That would be all right, wouldn’t it?

Posted by: womanmarine at January 6, 2007 2:32 PM
Comment #201770

As president of homeowner’s association in the past, I quickly learned to challenge the Developer’s attorney written covenants and change those which the folks in the association didn’t like, and those which could eventually result in legal battles just like this one.

It was tough fighting the Developer’s attorney, we of course had to hire our own, but, we won every battle with the Developer which we took on. The Bill of Rights is meaningless if corporations and businesses can contract around them. They don’t have that kind of legal clout to usurp the Constitution of the U.S.

To accomodate both sides to this issue, we resolved that the HOA could determine the size and placement of political signs, but, not restrict them altogether. We arrived at an agreement which the majority of our Homeowners could live with, which was that signs could not be larger than 1/4” thick less the sign post, not be elevated above 4’ in height to the top of the sign, no more than one political sign at a time, and that they must be positioned a minimum of 6’ from the sidewalk or property boundary.

The developer initially opposed to these changes, conceded when our attorney threatened to take the case to the ACLU on 1st Amendment rights.

Posted by: David R. Remer at January 6, 2007 5:04 PM
Comment #201771

Ron, take another look at the First Amendment. It says

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

How does that apply here? It simply doesn’t. Congress has made no law prohibiting lawn signs.

The homeowner bought the house with the understanding that an HOA held certain rights over it, and now she wants to breach the contract because it no longer suits her. It’s a contractual issue, not a First Amendment issue at all. Unlike j2t2, I am very hopeful that the plaintiff will lose. This is no more a First Amendment issue than if she wanted to erect political signs on a rental property.

Posted by: Wulf at January 6, 2007 5:05 PM
Comment #201772

Wulf, the first and primary law of the land is the Constitution. Businesses and Corporations may not contract the Constitution’s guaranteed rights away. It is that simple.

The right to peaceably assemble is one of our guaranteed rights. This is a right many developers would love to take away from Homeowner’s Associations, since, that right of assembly by homeowners is precisely how Developer’s lose so many cases, through the collective suits brought by homeowners’ association meetings in which all homeowners may become aware of unfair Developer practices and actions.

Recognizing they cannot take that right away, they did the next best thing, they wrote the Convenants such that the a Developer’s agent would mandatorially hold a position on the Board of Directors for the HOA, insuring that the Developer’s interests are protected. As you can imagine, this tactic breeds contention between homeowners and developers from time to time.

Of course, when the community is fully developed, most HOA’s covenants allow removal of the Developer’s agent from the Board as the developer then has no further financial interest in the community.

Posted by: David R. Remer at January 6, 2007 5:19 PM
Comment #201774

One last point, the purpose of HOA’s is to protect property values and investment in those properties. The exercise of political speech within reasonable limits (No Hindenburgs on the front lawn for example), poses no threat to property values. Ergo, typically, Developers and HOA’s lose cases of this kind, where they make no allowance for signs at all.

Similar cases have been fought over religious signs. If political speech is not protected in the form of yard signs, why should Christmas signs in the front yard or on the home be allowed?

Posted by: David R. Remer at January 6, 2007 5:22 PM
Comment #201791

The HOA is is based on a contract freely entered into. I live in a HOA community. Lots of the things are dumb, but we all agree to them.

The court has no business even addressing this. Not everything belongs in court. They should have just refused the case.

Posted by: Jackj at January 6, 2007 7:51 PM
Comment #201802

The most dear of the Constitutional rights is that of Free Speech. Though the Constitution talks of government infringement, who is the governement? We are!

No person or entity should be allowed to infringe upon someone’s right to freedom of speech or religious expression for that matter, as David Remer suggests. The only exception should be instances in which the majority of persons find the speech or expression vulgar, immoral, and reprehensible.


Posted by: JD at January 6, 2007 8:57 PM
Comment #201805

Jackj, then you would have no problem with HOA’s excluding ethnic persons from the Community either! Or a HOA adding a covenant which prohibits the sale of any homes to ethnic persons, right? What’s a little thing like the law or Constitution when folks want a contract which excludes Constitutional or legal provisions, eh?

Posted by: David R. Remer at January 6, 2007 9:13 PM
Comment #201806

Jackj: Not every contract is legal, no matter how freely they are entered into and signed.

Posted by: womanmarine at January 6, 2007 9:15 PM
Comment #201820

Wulf, Wouldn’t excluding ethnic groups violate a federal civil rights law, not the constitution? One of the reasons I have such a strong dislike of privatizing government to corporations is that they are not held to the same standard as the government when it comes to the freedoms we have due to the constitution. Its my understanding a corporation can silence a worker when a government entity cant. They cannot violate a law but the corporations can, unless they take government funds I believe, disregard our constitutional rights. That why in my previous post I was hopeful the plantiff would prevail.

Posted by: j2t2 at January 6, 2007 11:50 PM
Comment #201821

Womanmarine and David

It is not the same. If the HOA excluded only one party, it would be a problem. It sounds like we have some malcontents who do not wish to keep their agreements.

People do not have the right to do everything everywhere. We do not need to constantly expand the places where you cannot get away from people’s politics.

Posted by: Jack at January 6, 2007 11:51 PM
Comment #201822

The Constitution is the law of the land. No corporation or association can make any regulations or contracts that abridge the rights given under it. If they could believe me every corporation and association will force you to give up your rights.
Homeowners ASSociations are a governing body. They can make rules against such things as non running cars on your property, putting your trash out to early, not taking your trash cans in, etc. But they CANNOT tell someone that they can’t exercise their freedom of speech.

Posted by: Ron Brown at January 6, 2007 11:52 PM
Comment #201823


Similar cases have been fought over religious signs. If political speech is not protected in the form of yard signs, why should Christmas signs in the front yard or on the home be allowed?

They shouldn’t. But both are allowed under our Constitutiojn as they should be.
I can see if the association says you can’t put signs on association property, or power poles, street light, road signs, or on road right of ways. But on your own property? No way!

Posted by: Ron Brown at January 7, 2007 12:00 AM
Comment #201825

JD, I don’t see why the sensibilities of the majority should be used as a basis for the government to infringe upon one’s free speech. “Vulgar, immoral, and reprehensible” - these are exactly the justifications that are used to stifle political dissent throughout history, around the globe. The right of free speech should be even more absolute - i.e. inviolate - than you have suggested.

However, this particular court case is not a question of whether the HOA prevented the woman from saying what she wanted to. It’s a matter of her covenants restricting the manner in which she conveys that message. This does not violate her right to free speech any more than noise ordinances do. Her complaint is simply that she has not been allowed to reach as many people as she would like, in the manner in which she would prefer. It is no different than the person who complains that freedom of the press rests only with those who own presses.

The plaintiff should attempt to have the covenant changed to something less restrictive, as David indicated is often done. She should not ask for the HOA to be treated as a municipality, however. It simply isn’t one.

Posted by: Wulf at January 7, 2007 12:08 AM
Comment #201871

I have no choice but to agree with Wulf on this, to a degree.

The 1st Amendment does not protect sign posting. Speech includes the oral allocation of information only.

Although, depending on the manner in which the sign was removed or whether or not it was requested to be removed, it could be a violation of the 4th Amendment, on the grounds of illegal seizure.

So, if the HOA or any other entity than the homeowner or the courts or any official thereof, as ordered by a court decision, removed the sign, then the homeowner should sue on those grounds.

She should also still have her sign up until such time that the court makes their decision, as she is all parties are to be assumed correct unless deemed other wise.

Posted by: Bryan AJ Kennedy at January 7, 2007 1:13 PM
Comment #201876

Bryan said: “The 1st Amendment does not protect sign posting. Speech includes the oral allocation of information only.”

That is patently false, Bryan. Review Supreme Court rulings on this issue. It has been tested again and again. Mail, advertising, even money has been defined as political speech. It is not relegated to oral speech, nor was it ever intended to be, as Patrick Henry or Ben Franklin would attest.

Posted by: David R. Remer at January 7, 2007 1:28 PM
Comment #201879


There is no law mandating that one courts decision is to be upheld in another court jurisdiction.

Court judgements are not the same as law. One judge could decide differently than an another based on different situtaions and/or evidence presented.

Also, a judge may deem the decision of another judge as bias, or ‘not to par’. If some nut-job in, let’s just say Nebraska, decides that rapist are entitled to split custody of the children the produce from creating victims, on the grounds of constitutional rights, does that justify a judge else where having to decide unilatteraly?

Also, one must consider, that when refering to freedom of speech, when in writting, depending on in which jurisdiction, has in some cases been limited to ‘self written’. Suggesting that whether or not ‘she herself’ had actually publicated such item.

So, yes you are fully correct, but I wouldn’t hold a prior court decision as grounds for this particular judgement.

I also would like to see the homeowner win, as it is very linear to my personal capitalist beliefs on an individuals rights of ownership. I would just like to see her win on more firm ground. I think she would have been better off putting herself in a position where the would have been forced to personally removed the sign and put an unconstitutional lein on her property.

Then she could sue, and win with out doubt, on the grounds of illegal seizure, then have everything she needed to fight a very ‘down the middle’ battle.

As far as the law goes, as is, she has as much of a case as they do.

It is her property and it is her sign, it is also her contract and her HOA that she has openly and willingly entered into.

As is, it is probably going to be a matter of who paid more for the lawyer, where as had she first set herelf up for the obvious win, she would already have an advantage as the sign removal would be second in a serious of what then could be considered oppressions.

Then again, maybe I have just been studying this stuff too long and am turning into a politician myself.


Posted by: Bryan AJ Kennedy at January 7, 2007 1:45 PM
Comment #201901

Bryan, we are talking Supreme Court decisions here. NO other court may override a Supreme Court Decision. Only the Congress has that authority, and that too, with strict limits.

Your comments reflect the lack of law courses in school. A court injunction against an act is in no way illegal seizure of private property - since the property is not confiscated. Failure to remove the sign under court ordered injunction from displaying it, would result in contempt of court, and taking down the sign, but, not confiscating it.

Opinions are fine here at WatchBlog - but, it is nearly impossible for ignorant or uneducated opinions stated as fact, to stand unchallenged by one or more of the many thousands of readers who know of which they speak by experience and/or education.

Everyone is entitled to an opinion, but, everyone is not entitled to their own facts without being proven right or wrong, by empirically observable or researched facts of record.

Posted by: David R. Remer at January 7, 2007 4:13 PM
Comment #201959

All the more reason to be very careful to understand the covenants BEFORE moving into one of these places. While many of the rules make sense and are designed to protect others too (e.g. rules regarding septic systems, etc.), some rules are down right wacky and extremely restrictive. Some change the rules as they go along. Some leave a lot to interpretation. At any rate, it makes one wonder how any group ever gained the power to control what any one can do with their own property (especially when it harms no one else) ?
Next thing you know, they’ll be telling us how to raise our children, taking part of our income, taxing everything under the sun (some things much more than others), selectively ignoring and enforcing the laws, etc.

Posted by: d.a.n at January 8, 2007 12:01 AM
Comment #202027


Next thing you know, they’ll be telling us how to raise our children, taking part of our income, taxing everything under the sun (some things much more than others), selectively ignoring and enforcing the laws, etc.

You mean they aint doing it now?

Posted by: Ron Brown at January 8, 2007 12:58 PM
Comment #202129

That was a pretty good one Ron Brown. I have to say I agree with you. Thank God there are still people willing to fight for their rights when they feel they are being violated though!


Posted by: JD at January 9, 2007 12:29 AM
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