FREE SPEECH & DEFAMATION

U.S. Constitution, First Amendmen t.  "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. Common interest developments are private property where constitutional rights to free expression are limited. (Hudgens v. National Labor Relations Board (1976) 424 U.S. 507; finding no First Amendment right to free expression on private property.) 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 speech that promotes an unlawful end, such as:

• Promoting actual violence or harm,
• "Fighting words" are written or spoken words that incite hatred or violence and place the targets of the words in danger of harm. They are words which, when uttered, create verbal or physical confrontation by their mere usage, i.e., they tend to incite an immediate breach of the peace. In Cohen v. California (1971), the court held that a man who wore a jacket into court with the words “Fuck the Draft” could not be convicted for disturbing the peace. The court determined the words were not likely to incite imminent lawless action. In Texas v. Johnson (1989), the court held that burning the U.S. flag to express displeasure with government policies was constitutional and could not be subjected to the fighting words doctrine.
• Terrorist threats;
• Expression that constitutes criminal or severe harassment,
• Defamation,
• Profanity is defined as abusive, obscene, or offensive language.
• Obscenity. To determine whether something is obscene, the courts use guidelines established by the U.S. Supreme Court: (i) whether the average person, applying contemporary community standards, would find that the work depicting or describing sexual conduct, when taken as a whole, appeals to the prurient interest; (ii) whether the work does so in a patently offensive way; and (iii) whether when taken as a whole, it lacks serious literary, artistic, political, or scientific value. (Miller v. California, 413 U.S. 15, (1973).)
• False advertising, and
• Criminal trespass.

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, an association manager sued particular members, alleging they had defamed him by claiming he had mismanaged 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.)

Social Media, Chat Rooms & Websites

Associations cannot prohibit members from using social media or other online resources to make statements critical of the association or its governance. (Civ. Code § 4515(b)(6).) Associations are not required to provide members with social media or other online resources (such as association websites). (Civ. Code § 4515(b)(6).)

Chat Rooms. Association-sponsored online forums, chat rooms, and bulletin boards allow members to get to know each other and let off a little steam. Unfortunately, they are frequently taken over by small groups of disaffected owners who engage in personal attacks, gossip, obscenities, hostile diatribes, and defamation. Also, some owners have the mistaken belief that chat rooms serve as a means for communicating with the board and making demands. Directors who respond to such communications expose their association to potential risk.

Facebook. Facebook poses similar risks for associations if proper protocols are not established. If an association sets up a Facebook account, the admin settings should be set so only the board or management can post pictures. Individual members should not be allowed to post pictures or make comments on the site. Another precaution: the association should get written permission before posting pictures of members and their children.

Next Door. NextDoor is a social network for neighborhoods. It is a neighbor-to-neighbor forum that gives homeowners a convenient place to share information about a good handyman, plumber, or electrician. It can be used to post things for sale, information about local events, or ask for help finding a lost pet. Some consider it the best neighborhood social network ever created, while others consider it the spawn of Hell. It can be both, depending on how it is used. NextDoor is useful when it is used to pass on helpful information about vendors and local events. Unfortunately, some HOA members use it to rant endlessly about the board, the manager, or to bully other members and polarize the community. The site can turn into a toxic dump. Following are comments from former users:

• I subscribed to NextDoor when I moved into my neighborhood. I have since unsubscribed from all notifications for it - it's insanely toxic and people are really terrible on there.
• I absolutely hate Nextdoor. The most toxic social media... neighbors against neighbors. I strongly suggest staying away from this app. I am so sorry I signed up for it. Bullying is at an all time high.

National Public Radio learned how easily bad actors can hijack social media. NPR disabled the "comment" portion of their website. They discovered that "public" input turned out to be only .06% of their listeners. They also discovered that the majority of that tiny fraction consisted mostly of disaffected ranters who were abusive and posted endlessly. In other words, the crazies took over. The same thing can happen with NextDoor, where bullies and trolls take over. Recommendation: To keep NextDoor a friendly forum for owners to use, those in charge of the network should set guidelines on what can be posted, and stop abusive behavior that can ruin it for everyone. They should block those who use the forum to rant, attack neighbors, board members, and managers, and make threats. Otherwise, 

Websites. More associations are discovering the benefits of internet websites. They provide easy 24/7 access to the association's CC&Rs, bylaws, rules, architectural standards, minutes, financial statements, and newsletters. Websites also expose associations to potential liability for defamation, theft of personal information, invasion of privacy, and "rights" organizations seeking litigation targets. To minimize such risks, associations should divide their websites into two sections: (i) one that is open to the public, and (ii) one that is members-only, and password protected. The public portion of the site can have a welcoming page with a description of the development and pictures of the project. The members-only section should contain the governing documents, financial statements, minutes, names of board and staff members, etc. Boards should be cautious about posting the names of delinquent owners, and should not post employee disciplinary actions, executive session minutes, or attorney-client privileged communications. Owners can create their own websites and post assocaition information on them. However, they need prominent disclaimers making it clear that their website is not the association's website, and that they  do not speak for the association. Also, owners should not use the association's name and logo on their website. Otherwise, they may incur potential liability for misrepresentation and violate provisions of the Anticybersquatting Consumer Protection Act of 1999 (15 U.S.C. §1125(d)) and provisions of the Lanham Act which protects trademarks. Also, see Internet Library of Law.

Allowable Restrictions

Flyers & Leaflets. Associations can prohibit uninvited, nonresident political candidates from distributing their campaign materials door-to-door, 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; Attorney General's Opinion.) Beginning January 1, 2018, associations must allow members and residents to canvass, petition residents, and distribute flyers about "common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes, or other issues of concern to members and residents at reasonable hours and in a reasonable manner." For more information, see "Political Activities and Fliers."

Private Newspapers. In Laguna Publishing v. Golden Rain Foundation, a newspaper publisher was barred from entering the gated community and depositing unsolicited copies of its free newspaper at the doors of the community's residents. 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. 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. The Court concluded that the dispute was a discrimination case with substantial economic consequences and not one involving the resolution of the rights of free speech in conflict with the rights of private property.

Free Speech Bullies. Free speech bullies seem oblivious to their bad behavior, or worse, revel in it. Boards should always listen to members' concerns and be patient with members who get emotional. However, boards do not have to deal with abusive behavior, harassment, personal attacks, obscenities, defamation, or threats. There is no "First Amendment right" for bad behavior. Persons who engage in it can be ejected from meetings and, following due process, fined for their disorderly conduct. RONR (12th ed.) 63:1, 63:33(e). If necessary, boards can seek restraining orders against persons who threaten and harass boards.

Defamation

Defamation constitutes an injury to reputation; the injury may occur by means of libel (written) or slander (spoken). (Civ. Code § 44.) Liability for defamation can extend to those who publish the defamatory remarks of others. The generic elements of defamation are:

• False statement that is expressly implied to be factual. Statements are not defamatory if they are true.
• Intentionally published to a third party. One of the elements of the tort of defamation is "publication." In general, each time the defamatory statement is communicated to a third person who understands its defamatory meaning as applied to the plaintiff, the statement is said to have been "published," although written dissemination, as suggested by the common meaning of that term, is not required. Each publication ordinarily gives rise to a new cause of action for defamation. Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed. (Hellar v. Bianco (1952) 111 Cal.App.2d 424, 426.) (See Haley v. Casa Del Rey; Ruiz v. Harbor View.)
• Not privileged. Officers, directors, and managing agents are generally protected against liability for defamation when they publish information to the membership about the association's finances, delinquencies, rules violations, etc., even if the information is inaccurate, provided the publication was done without malice, and the publication was to persons who have an interest in the communication, i.e., the membership. (Civ. Code § 47; see Damon v. Ocean Hills; Healy v. Tuscany Hills.)
• Causes damage.

Libel. Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. (Civ. Code § 45.) A libel that is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo, or other extrinsic fact, is said to be a libel on its face or libel per se. (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 549.)

Slander. Slander is a false and unprivileged spoken publication against a person which:

• Charges that person with a crime or with having been indicted, convicted, or punished for a crime;
• Imputes the existence of an infectious, contagious, or loathsome disease;
• Tends directly to injure him in respect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires or by imputing something concerning his office, profession, trade, or business that has a natural tendency to lessen its profits;
• Imputes impotence or a want of chastity;
• Causes actual damage.

Defenses to Defamation

Truth and Opinions. The essential condition of recovery for defamation is the existence of falsehood. For a statement to be defamatory, it must be false. “Truth... is an absolute defense to defamation.” (Campanelli v. Regents of Univ. of Cal. (1996) 44 Cal.App.4th 572.) Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected. That does not mean that statements of opinion enjoy blanket protection. On the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. The critical question is not whether a statement is fact or opinion, but ‘“whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1370.)

Anti-SLAPP Motion. If someone is sued to quash their free speech rights, an anti-SLAPP motion can be filed. However, if communications to the membership are defamatory on their face, an anti-SLAPP motion can be denied. (Silk v. Feldman.) See Anti-SLAPP Motions.

Litigation Privilege. The litigation privilege is a type of immunity given to statements concerning litigation. (Civ. Code § 47(b); Code Civ. Proc. § 425.16.) The protections are construed broadly to protect the right of litigants to the utmost freedom of access to the courts without the fear of being harassed subsequently by derivative tort actions. Thus, a communication is immune from any tort liability if it has some relation to judicial proceedings. (Healy v. Tuscany Hills.)

Limited Purpose Public Figure. The limited-purpose public figure is an individual who voluntarily injects him or herself or is drawn into a specific public controversy, thereby becoming a public figure on a limited range of issues. (Cabrera v. Alam (2011) 197 Cal.App.4th 1077, 1092.) Limited-purpose public figures have the burden of proving both that the challenged statements are false and that the defendants acted with actual malice. In this context, a defendant acts with actual malice when publishing a knowingly false statement or when he entertains serious doubts as to its truth. (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 81.) Falsity must be established only by a preponderance of the evidence, but malice must be established by clear and convincing evidence.

Malice. “Malice” is defined as conduct “intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a disregard for the rights or safety of others.” (Civ. Code § 3294, subd. (c)(1); College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)Traditionally, malice has included not only deliberate falsehoods but also false statements made without reasonable grounds to believe them true. (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 718.) To establish malice, the plaintiff was required to show that the defendant made the allegedly defamatory statements with knowledge, or reckless disregard, of the falsity of the statements. (Cabrera at p. 1093.) Malice may be inferred where, for example, a story is fabricated by the defendant, is the product of his imagination, or is based wholly on unverified anonymous sources.

HOA Action for Defamation. An association can sue homeowners for defaming directors if it can be shown that the defamation is related to how the director performed his/her duties and responsibilities "so as to have a natural tendency to affect the corporation disadvantageously in its business." (Palm Springs Tennis Club v. Rangle.) If the ostensibly defamatory statements cannot be reasonably interpreted as having been made against the association, the association has no cause of action for defamation; the action is personal to the director.

Case Law

Kulick v. Leisure Village (2018). The association's attorney prepared and distributed a letter to the membership responding to Kulick's newsletter. The attorney's letter described Kulick's newsletter as a "reckless communication" that contained "unfounded, inaccurate and spiteful allegations." The letter denied that any board member was a cheat or a liar or that the association attorneys had engaged in unlawful conduct during the litigation. The letter also explained the association's position in the litigation and its success in obtaining a preliminary injunction against Kulick. Kulick sued for defamation. The court ruled the attorney's letter was protected.

Lee v. Silveira (2016). As frequently happens, there are winners and losers when a board votes on an issue. Normally, the vote is recorded in the minutes, and the board moves to the next agenda item. In this case, the losers wouldn't let go of an issue. Here, a 9-member board voted six to three to renew a contract with the association's management company. Three directors who voted against the contract sued the six directors who voted in favor. The association's attorneys moved to dismiss the action with an anti-SLAPP motion. The court of appeal agreed and ruled that a director’s vote at a board meeting constitutes a protected activity under the anti-SLAPP statute.

Cabrera v. Alam (2011) 197 Cal.App.4th 1077. This case involved alleged defamation during an election campaign. Prior board president Veronica Cabrera accused board member Mohammed Alam (who was running for reelection) of mismanagement of the association’s finances. In response, Alam accused Cabrera (who was campaigning for Alam’s opponent) of defrauding the association and stealing money. Cabrera sued for defamation. Alam filed an anti-SLAPP motion, which was denied. The Court of Appeal reversed. The Court held that HOA meetings constitute a “public forum” in the development and the statements against her were an issue of interest to the membership. Moreover, Cabrera was a “public figure” in her association because she had voluntarily injected herself into the election. Because she was a public figure, a higher standard of proof was applied to the alleged defamation, i.e., Cabrera had to show that Alam made the statements knowing they were false and that he made them with malice. The court found that Cabrera failed to produce evidence to meet that standard. Accordingly, her defamation claim was dismissed.

Country Side Villa HOA v. Ivie (2011) 193 Cal.App.4th 1110. Members have the right to speak out against the actions of their board of directors and management. In this case, the association’s newly elected board hired a new manager and new legal counsel. Their new attorney advised the board that the association was responsible for maintaining and repairing balconies and shingle siding rather than unit homeowners. This was inconsistent with the HOA’s prior practices. Ms. Ivie objected to the new interpretation because not all units had balconies, the HOA had no reserves to pay these new expenses, and board members had a conflict of interest because they benefited from the change. Ivie circulated a petition to recall the new board and was sued by the board. The court granted Ivie’s anti-SLAPP motion. The board appealed. The Court of Appeals found that Ms. Ivie's criticism and petition to recall the board is protected free speech, and granting her anti-SLAPP motion was proper under Code Civ. Proc. §425.16.

Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468. Homeowners were displeased with Damon's management style, and expressed their views in articles, editorials, and letters to the editor in the Village Voice newsletter, which was published by a private homeowners club (Journalism Club). Homeowners criticized Damon's competency in managing the Association and urged residents to replace Damon with a professional management company. Damon sued for defamation and lost. The court determined that the newsletter was a public forum for communicating a message about public matters to a large and interested community. Each of the alleged defamatory statements concerned (1) the decision whether to continue to be self-governed or to switch to a professional management company and/or (2) Damon's competency to manage the Association. These statements pertained to issues of public interest within the Ocean Hills community. The right to speak on political matters is the quintessential subject of our constitutional protections of the right of free speech. Public discussion about the qualifications of those who hold or wish to hold positions of public trust presents the strongest possible case for applications of the safeguards afforded by the First Amendment.

Haley v. Casa Del Rey Homeowners Association (2007) 153 Cal.App.4th 863. Among other causes of action, Haley sued for slander when a homeowner allegedly published to a third party that Haley was having sex with her son and was having group sex. At trial, Haley was "nonsuited" on the defamation claim. She appealed and lost. Haley failed to show that the publication of the alleged defamatory remarks was to anyone other than the person defamed or that the comments were intentionally or negligently made to a third party.

Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1. Gloria Healy sued Tuscany Hills, claiming the association had defamed her when it informed the membership that her refusal to allow access through her property for weed abatement resulted in increased costs to the Association. Healy alleged she suffered loss of reputation, shame, mortification, and hurt feelings for $250,000. Healy won at the trial level. The Court of Appeals reversed the lower court's decision. The Court determined that the allegedly defamatory statements came within what is known as the "litigation privilege." The litigation privilege is a type of immunity given to statements connected to litigation. The protections are found in Civil Code § 47(b) and Code Civ. Proc. § 425.16.

Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456. The association's attorney sent letters to an owner accusing the homeowner of stalking and harassing board members. The owner sued, claiming defamation, and lost. When the letters were written, the parties were involved in ongoing disputes over the approval of the Plaintiffs' architectural plans and the Plaintiffs' demands for information and documents. Those disputes were of interest to association members because they would be affected by the outcome of those disputes. The letters were written in the context of the disputes between Plaintiffs and the association, were part of the ongoing discussion over those disputes, and "contributed to the public debate" and were, therefore, protected speech.

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