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. 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 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 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. 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).) Association are not required to provide social media or other online resources (such as association websites) to members. (Civ. Code § 4515(b)(6).)
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 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. 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 rights of free speech in conflict with the rights of private property.
Free Speech Bullies. Free speech bullies seem oblivious to their own bad behavior, or worse, revel in it. Boards should always listen to membership concerns and be patient with members who get emotional. However, boards do not have to put up 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. (Robert's Rules, 11th ed., pp. 645-648.) If necessary, boards can seek restraining orders against persons who threaten and harass boards.
Recommendation: For more information, see Handbook of Free Speech Issues produced by the Office of General Counsel to the California State University.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.