U.S. Constitution, First Amendment. "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."
California Constitution, Article I, section 2(a). Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
Community Associations. Free speech issues are often misunderstood when it comes to community associations. First Amendment constitutional protections apply to governmental restrictions on free speech and do not apply to private organizations. The same is true for state constitutional protections. In
Golden Gateway v. Golden Gateway, the California Supreme Court made it clear that the California Constitution protects against restrictions by the state, not private organizations.
Speech Limitations. Associations can exclude
profanity as well as speech that promotes an unlawful end, such as:
Opinions About Management. Boards do not have unrestricted authority to stifle speech during the
Open Forum portions of their meetings they are considered public forums for free speech purposes. Members and
spouses have a limited right to make statements some might consider defamatory. For example, owners might comment that they think the board or manager is mismanaging the association. The board cannot prohibit such comments. In a 2000 case, the manager of an association sued particular members, alleging they had defamed him by claiming he was mismanaging the association. The court dismissed the case concluding that members had a right to voice their opinions about his management abilities since it constituted political speech about a public issue in a public forum.
Damon v. Ocean Hills.
Fliers & Leaflets. Associations can prohibit door-to-door solicitors and the distribution of fliers, provided the development has restricted access. However, developments that are freely and openly accessible to the public cannot prohibit leafleting, solicitations, and fliers.
Golden Gateway v Golden Gateway.
Private Newspapers. In Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816, a newspaper publisher was barred by the homeowner's association of a private gated community from entering the community and depositing unsolicited copies of its free newspaper at the doors of the residents of the community. At the same time, the association permitted another newspaper publisher to deliver its competing free and unsolicited newspaper to the doors of the community residents. The excluded publisher sued in order to establish its right to distribute on an equal footing with the preferred publisher. Although the Court of Appeal found that the excluded publisher had a right under article 2(a) to distribute its newspapers to the doors of the community residents on an equal basis with the other publisher, that court's decision rested upon the discriminatory nature of the challenged policy. The Court concluded that the dispute was a discrimination case with substantial economic consequences, and not one involving the resolution of rights of free speech in conflict with the rights of private property.
SLAPP Litigation. To further protect free speech, California enacted
anti-SLAPP legislation.
RECOMMENDATION: For more information, see
Handbook of Free Speech Issues produced by the Office of General Counsel to the California State University.