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FREE SPEECH, PRIVATE SPACE, AND THE CONSTITUTION
Frank Askin *
* Frank Askin is professor of law and Robert Knowlton Scholar at Rutgers, the
State University of New Jersey, School of Law-Newark, and the author of
Defending Rights: A Life in Law and Politics (Humanities Press 1997). He is a
General Counsel of the American Civil Liberties Union and was counsel for
plaintiffs in New Jersey Coalition Against War in the Middle East v. J.M.B.
Realty Corp. and Guttenberg Taxpayers & Rentpayers Ass'n v. Galaxy Towers
Condominium Ass'n, which are discussed herein.
SUMMARY:
... On the one hand, do I have a constitutional right to canvass my neighbors
and ask them to vote for my preferred candidate or support some cause; and, even
if I do, does some non-resident of the community have the right to do the same?
... Restrictions on pets seem to rank among the most litigated kind of
regulation. ... A motorcyclist had purchased his condominium at a time when
there was no restriction on such bikes. ... On Election Day, representatives of
other candidates could have access to the ten per cent of the District 6
registrants who did not reside in the Galaxy, but could not hand literature to
those who went to vote directly from the Galaxy premises. ... The judge held
that the Galaxy was private property and the governing board could control
access. ... The New Jersey Appellate Division, citing the shopping mall
opinion, remanded the Galaxy case to the Superior Court in Hudson County for a
full evidentiary hearing. ... While the United States Supreme Court operates
with blinders when it comes to viewing public forum doctrine, in New Jersey an
earlier free-speech jurisprudence survives. ...
TEXT:
[*947]
This commentary addresses the impact of constitutional law on the operation
and enforcement of rules and regulations governing private community
associations. n1 In essence, the question is: Does anyone have rights flowing
from constitutional provisions to engage in activities upon the property of the
association over the objections of the association and its management?
At the outset, it is important to state that there are two distinct sets of
individuals who might be affected by such restrictions--insiders and outsiders:
that is, members of the association itself, and strangers to the association. On
the one hand, do I have a constitutional right to canvass my neighbors and ask
them to vote for my preferred candidate or support some cause; and, even if I
PAGE 2
29 Rutgers L. J. 947, *947
do, does some non-resident of the community have the right to do the same?
Also, it is important to distinguish between two different
constitutions--the United States Constitution and the state constitution in the
state where one resides. The fact is that someone might have rights under the
latter, even though there are no such rights under the former. n2
I. The Federal Constitution
The basic principle is that the Federal Constitution only restricts the
activities of government entities. In fact, the original Constitution only
restricted federal government entities. After the Civil War, the Fourteenth
Amendment extended those restraints on government action to include the acts of
state officials and agencies, through what is generally known as the [*948]
State Action Doctrine. Thus, since private community associations are by
definition private, their activities do not constitute state action, and,
therefore, they cannot violate anyone's constitutional rights.
There are two possible exceptions to the State Action Doctrine. First, there
is the principle of Shelley v. Kraemer, n3 a fifty-year old case--predating
Brown v. Board of Education, n4 --that involved a racially restrictive covenant
in a deed. The property was sold in violation of the covenant, bringing about a
lawsuit to enforce the restriction. It was argued that, because the covenant was
not the result of governmental action, it could not be
unconstitutional. However, the United States Supreme Court held that while the
covenant itself was not unconstitutional, it would be an unconstitutional denial
of equal protection of the laws for a state court--which itself was a state
agency--to enforce the covenant. n5
It is not hard to visualize the principle of Shelley v. Kraemer as a very
powerful tool for protection of individuals against private conduct. Take the
example of environmental proselytizers insisting on coming into my gated
community to solicit my neighbors and me over the objection of the condominium
association, which claims they are trespassing on private property. If those
canvassers have a constitutional right under the First Amendment to canvass the
public neighborhood around the corner, is it not a violation of the principle of
Shelley v. Kraemer for the local court--a government entity--to authorize their
prosecution for trespass? Unless the condo itself wants to employ an armed
constabulary to bodily evict such intruders from the property, it is probably
the only way to enforce the association's rule. But would not a conviction for
trespass constitute punishment for exercising rights of free speech?
Fortunately, for community associations, the doctrine of Shelley v. Kraemer
appears to have been limited by most courts to the enforcement of racially
discriminatory provisions n6 --although no court has ever clearly explained the
distinction, and the question is not wholly free from doubt. Indeed, there is at
least one recent case in which a federal court in Florida held that the
principle of Shelley did preclude enforcement of a condominium rule forbidding
the flying of the American flag from units [*949] except at certain specified
times. n7 Thus, the Shelley v. Kraemer doctrine sits around as a sort of wild
card that may be used by some courts to trump private property claims when they
come into conflict with the rights of individuals.
The second exception to the requirement of state action under the Federal
Constitution is the public-function doctrine, which finds its most relevant
PAGE 3
29 Rutgers L. J. 947, *949
aspect in what is known as the "company town case," Marsh v. Alabama. n8 Marsh
involved Jehovah's Witness Grace Marsh, who tried to expound her beliefs on the
streets of Chickasaw, Alabama. Chickasaw looked like most other towns. It had a
main street business district with stores surrounded by a residential
neighborhood. Its uniqueness lay in the fact that the entire town was owned by
the local steel mill in which most of the residents were employed. When Marsh
went proselytizing on Main Street, she was arrested for trespass. In defense,
she asserted her rights under the First Amendment. The United States Supreme
Court reversed her conviction. n9 In essence, the Court held: if downtown
Chickasaw looked like Main Street, walked like Main Street and quacked like Main
Street, it was Main Street. The fact that the deed to the streets resided with
the steel mill was just irrelevant. n10
The public function principle, as an accretion to the State Action Doctrine,
reached its zenith in 1968, with the Supreme Court's decision in the Logan
Valley shopping mall case. n11 There, the Court ruled that, even though the
shopping mall was privately owned, such malls had replaced the old downtown
business districts and town squares. n12 Since such malls were performing such
a public function, they were required to allow expressive activities such as
petition gathering and leafleting. n13
Logan Valley was the highpoint of the public forum jurisprudence of the
Warren Court. It was also very short-lived. By the early 1970s, Earl Warren was
retired, and Richard Nixon was remaking the Supreme Court. The new majority
disowned the Logan Valley ruling and held that such shopping malls were indeed
private property and need not permit expressive activity. [*950] In addition,
the Court cast some doubt on the continuing validity of the company town case.
n14
II. State Constitutional Law
By the time the United States Supreme Court shifted gears in the early
1970s, activist groups in California had become accustomed to using the shopping
malls as forums in which to disseminate their messages. The California state
courts thought that was just fine, and the California Supreme Court finally
ruled--in a case involving the Pruneyard shopping center--that even though the
non-profit groups had no right of access to malls under the Federal
Constitution, their rights were protected by the free speech provisions of
California's own constitution. n15
The shopping mall owners appealed the state ruling to the Supreme Court. The
mall owners argued that by allowing others to use their property for their own
purposes, the California courts were taking their property without compensation
as required by the Fifth and Fourteenth Amendments of the Federal Constitution.
n16
Justice Rehnquist wrote a unanimous opinion for the Supreme Court rejecting
the shopping mall's arguments. n17 In a decision that might be viewed as a
triumph for states' rights, Rehnquist wrote that the state courts were free to
interpret the free speech clauses of their own constitutions more broadly than
the Federal Constitution, and, that in so doing, the California court had
violated no property rights of the mall owners. n18
The United States Supreme Court's Pruneyard decision heralded a new era in
constitutional law in this country. It meant that citizens could now rely on two
PAGE 4
29 Rutgers L. J. 947, *950
separate bodies of constitutional law to support claims of individual rights.
The Federal Constitution was a floor for rights, not a ceiling. In most
instances, state courts under state constitutions were free to provide more
rights than the Federal Constitution did. This was particularly significant with
regard to the Federal State Action Doctrine. While rights under the Federal
Constitution were generally enforceable only against government actors, state
courts were not bound to read their own constitutions so restrictively. [*951]
This principle is particularly relevant to free speech claims. The First
Amendment to the United States Constitution is written in the negative:
"Congress shall make no laws." n19 Even when the Fourteenth Amendment was added
to provide that "no state shall abridge" n20 rights which the federal
government was already forbidden from abridging, the language was still directed
at governmental behavior.
Most state constitutional provisions regarding free speech are, to the
contrary, written in the affirmative, guaranteeing to individuals the rights of
freedom of expression. The New Jersey Constitution is illustrative. Article 1,
paragraph 6 provides that: "Every person may freely speak, write and publish his
or her sentiments on all subjects, being responsible for abuse of that right."
n21 It is only in the next sentence which is added that "No law shall be passed
to restrain or abridge the liberty of speech." n22 The California Constitution
has a similar provision. n23
Since the Pruneyard decision in 1980, this legal battle has been carried
forth in numerous state court proceedings. To date, the property rights
proponents are ahead. In the Midwest, n24 South, n25 and East n26 --with the
exceptions of New Jersey n27 and Massachusetts n28 --courts have ruled that
their own state constitutions were also confined to restraining state action in
the traditional sense. The West Coast states n29 and Colorado n30 have, to one
[*952] extent or another, sided with New Jersey and Massachusetts.
Pennsylvania, as is true in many areas, is a law unto itself. n31
III. New Jersey's Coalition Decision
Together with my students in the Rutgers, Newark, Law School Constitutional
Litigation Clinic, I began to litigate this issue in New Jersey in 1983, not so
long after the Pruneyard decision in California. The New Jersey Supreme Court
had already ruled in 1980 that, like California, New Jersey's constitution
restricted some private behavior. In a case involving the private Princeton
University campus, the court held that a political leafleter could not be
convicted of trespass because the normal use of the property included discussion
of ideas--and the campus green was generally open to the public. n32 The court
established a tripartite test for free speech on private property that included
an examination of the normal use of the property, the nature of the public
invitation, and the compatibility of the proposed use to the property's normal
use. n33
In the 1980s, several trial level state courts ruled that the Princeton case
also protected leafleting at shopping malls, but none of those decisions were
appealed or reported, so there was no binding precedent in New Jersey.
The preliminaries to the Persian Gulf War finally provided the occasion for
a definitive ruling in New Jersey. The New Jersey Coalition Against War in the
Middle East sought permission from ten major shopping malls around the state to
PAGE 5
29 Rutgers L. J. 947, *952
distribute materials about the threatened hostilities during the 1990 Veterans
Day weekend. n34 Their applications were rejected. n35 A ten-day trial was
held in the Superior Court of Hackensack, in June of 1991. The defendants
presented mainly expert witnesses who testified to their investment-based
strategies to attract shoppers and gave opinions that expressive activity by
controversial groups would drive away customers and hurt their commercial
interests. An executive of the Gallup organization testified about the results
of a telephone poll of mall shoppers who said they would avoid malls where such
activity was going on. [*953]
Plaintiffs' case was based on the nature of New Jersey's regional shopping
malls as the new town squares and village greens, which the United States
Supreme Court had once recognized back in 1968. Plaintiffs presented evidence of
the myriad activities that took place at the defendant's malls, including mall
walker clubs, fashion shows, health fares, seminars, concerts, and exhibits and
displays of all kinds. n36 It was undisputed that the general public was
invited to come for any and all reasons--except to discuss public issues.
Plaintiffs also offered evidence that, in a decade of such activity at
California shopping malls, there was no evidence of untoward consequences or
interference with the commercial objectives of the property owners.
One of the highlights of the trial was the testimony of the manager of
defendant Monmouth Mall. Plaintiffs had entered into evidence several hundred
photographs which were titled "Scenes from the Malls." The photographer had
taken pictures of the various amenities and activities going on--from parents
changing baby diapers in the common areas to teenagers hanging out. One of those
photos portrayed a plaque located at the entrance to Monmouth Mall dedicating
the Mall to the "famous Americans of Monmouth County, Past Present and Future."
The mall manager was asked what would happen if one of those famous Americans to
whom the mall was dedicated stood by the plaque handing out statements of the
credo for which he was honored. The manager had to concede that such a person
would be arrested for trespass. The fact is that mall owners did want it both
ways: they did want to be the town squares, but they did not want to have to
accommodate the free speech that would normally take place in the town squares.
The trial judge ruled that malls were unlike a college campus and that
disseminating political materials was not part of the normal use of such
property. Judgment was entered for the defendants, thus allowing the plaintiffs
to appeal. The appellate division affirmed the trial court decision, and the New
Jersey Supreme Court accepted plaintiffs' petition for review.
Plaintiffs won four to three. The opinion was written by the late Chief
Justice Robert Wilentz and went on for some seventy pages about the crucial role
performed by the state's regional shopping malls in the communal life of New
Jersey. n37 The opinion stressed the need to refashion legal principles to fit
changing life styles. Of special relevance to this topic, Wilentz wrote: [*954]
We look back and we look ahead in an effort to determine what a
constitutional provision means. If free speech is to mean anything in the
future, it must be exercised at these shopping centers. . . . If the people have
left for the shopping centers, our constitutional right includes the right to go
there too . . . . We do not believe that those who adopted a constitutional
provision granting a right to free speech wanted it to diminish in importance as
PAGE 6
29 Rutgers L. J. 947, *954
society changed, to be dependent on the unrelated accidents of economic
transformation, or to be silenced because of a new way of doing business. n38
Those last words should hit particularly close to home for those who have
found not a new way of doing business, but a new kind of living arrangement, the
private community association.
IV. Free Speech in Private Residential Communities
Condominiums and other private communities are governed by two types of
internal documents, the basic declaration or deed restrictions, and rules and
regulations subject to regular revision by the association governing board.
These are sometimes referred to as Category One and Category Two restrictions.
n39 If any of these governing regulations are violated and an enforcement action
ensues, there are three possible attacks that might be made upon them:
statutory, common law, or constitutional. The first simply looks at the statutes
of the state to see if they are at all relevant. By now, most states probably
have condominium acts which provide certain constraints on the power and
authority of the association. n40
Aside from statutes, relations between the association and its members are
also regulated by the common law of property and servitudes. As a general rule,
most states will uphold and enforce association rules unless a challenger can
demonstrate that they are unreasonable. Reasonability generally looks to the
need for such a regulation to protect the safety, health, or welfare of the
larger community. There are clear variations from state to state over the amount
of deference a court is willing to give the association's claim of community
need. n41 Restrictions on pets seem to rank among the [*955] most litigated
kind of regulation. n42 Does it really interfere with the neighbors' right to
enjoyment of their own property if you have a house cat which you never let
outside?
For obvious reasons, regulations contained in the master deed or declaration
are entitled to much more deference from the courts than regulations adopted by
majority vote of the association's board of directors. n43 People who join the
association with knowledge of restrictions contained in the founding documents
voluntarily accept those restrictions--i.e., they have waived certain rights.
However, they do not necessarily agree to accept changes in the governing rules
adopted by fifty-one per cent of their neighbors after they have moved in. They
may have relied on the absence of certain restrictions in their decision to join
the community.
A recent case in New York illustrates this distinction. n44 A motorcyclist
had purchased his condominium at a time when there was no restriction on such
bikes. But after a while some of his neighbors began to complain, and the board
adopted a regulation banning motorcycles. The motorcyclist claimed he had relied
on the absence of such a restriction when he moved in. To the surprise of some
observers, the regulation was upheld by the court and the challenger had to get
rid of his motorcycle. n45 On the other hand, it is likely that, in a state
like Florida, the regulation would have been struck down unless it had been
contained in a Category One document. n46 New York, however, seems to be
especially deferential to board decisions. n47
PAGE 7
29 Rutgers L. J. 947, *955
Because state courts always retain the common law power to strike down
regulations they find unreasonable and against public policy, it is seldom
necessary to fall back on constitutional principles when deciding [*956]
disputes between the association and a member. Any rule that a court might find
to be unconstitutional will probably be invalidated on common law
principles--although it is true that several cases in Florida have referred to
constitutional protections for free speech and family privacy to invalidate
rules found to be unnecessarily restrictive of individual autonomy. n48
However, the references to constitutional principles were unnecessary because
those courts could have come to the exact same conclusions on common law
grounds.
But, when it comes to enforcing rules of the association against strangers,
different considerations come into play. Even restrictions in Category One
documents cannot be held binding on non-residents on the ground of voluntary
acceptance. Outsiders' approval of the rules was never sought nor given. Nor do
they have any standing to challenge the reasonableness of the rules of an
association of which they are not part. However, there is nothing to prevent
them from raising constitutional objections--if there are some regulations of a
private association which may be subject to constitutional restraint. This is an
area which, I suggest, will be an expanding forum for state court litigation in
the years ahead.
It is inevitable in a society as deeply committed to freedom of expression
and communication as ours that more and more courts are going to follow the lead
of the New Jersey Supreme Court in examining the impact of changing modes of
living on fundamental constitutional rights either because they view these new
communities as company towns, as the United States Supreme Court did in Marsh v.
Alabama, n49 or because they are going to decide that traditional notions of
state action must be modified in the face of the kinds of monumental social
transformation represented by the condominium movement.
The first recognition of this phenomenon came from a New Jersey trial judge
twenty years ago in a case involving the retirement community of Rossmoor. n50
Local activists were arrested for entering the Rossmoor community to knock on
doors to gather signatures on a petition for a change of local government. The
county judge acquitted the defendants on the ground that they had a right to
gather signatures. The court referred to the [*957] at Rossmoor was a
self-sufficient community which included a church structure, a community hall,
and a small shopping area, and was home to some twenty per cent of the residents
of the municipality in which it was located. There was also testimony that a
member of the association had been allowed to go door to door to collect his own
petition signatures for party office. Invoking the principle of Marsh, the court
held that it was up to individual householders whether they wished to receive
the solicitors. The community governing board could not speak as one voice.
Otherwise, the judge held, Rossmoor would become a "political 'isolation
booth.'" n51
Curiously, there are very few similar cases in the law reports from around
the country. Until a recent New Jersey case litigated by the Rutgers'
Constitutional Litigation Clinic involving the Galaxy Towers Condominium in
Guttenberg, New Jersey, the only other reported case appears to be one arising
at the Laguna Hills development in California, which involved a dispute between
two competing, free weekly newspapers. n52 There, the condominium association
had granted permission for one newspaper, but not the other to be distributed
PAGE 8
29 Rutgers L. J. 947, *957
door-to-door.
In the lawsuit that followed, the intermediate appellate court in California
ruled in favor of the second paper on grounds of unfair discrimination. Although
the court insisted it was not making a constitutional ruling, n53 it is hard to
understand on what other basis the court could have held the way it did. There
is no principle of property law which forbids a property owner--other than a
common carrier or public accommodation--from denying access to A just because it
admitted B. The decision can be justified only on the basis of a constitutional
obligation relating to freedom of expression on private property.
Both the Kolcz and Laguna Hills opinions represent judicial recognition that
privatization of communities requires reconsideration of the traditional legal
distinctions between public and private. As Chief Justice Wilentz pointed out in
the New Jersey shopping mall case, citizens' rights of free speech cannot be
left dependent on the identity of the property owner. When the public square is
privatized, it is still the public square. Likewise, when the town is
privatized, as in Chickasaw or Laguna Hills, it is still public. To disallow
free speech there means that public space has been closed to free communication.
If proselytizers cannot distribute their messages at the doorstep, free
political expression and debate has been seriously curtailed. [*958]
The Pennsylvania Supreme Court has had a particularly difficult time trying
to draw the proper line. In a 1980s case, the court ruled that a leafleter had a
constitutional right to go onto the private Bucknell University campus to give
out flyers protesting the activities of the FBI during a speech by then
FBI-director Kelley. n54 Several years later, activists tried to extend that
principle to the state's shopping malls on the ground that the court had already
ruled that freedom of expression must be permitted on private premises which had
been opened to the public. n55 The court restricted its earlier ruling so as to
apply only in situations where one side of an argument was being allowed. The
court retroactively held that the reason Bucknell had to allow the leafleter was
its decision to provide a forum for FBI Director Kelley. So long as all
expression was forbidden, the shopping malls were within their right to exclude
such activity. n56
V. The Galaxy Towers Case
This was the legal background against which the Guttenberg Taxpayers and
Rentpayers Association sued the Galaxy Towers Condominium Association just prior
to the Guttenberg Board of Education election in 1994.
Galaxy Towers is a luxury condominium consisting of three high-rise
residential buildings with underground parking and an attached mini-mall housing
a food market, several restaurants, shops, and a movie theater. The Galaxy Mall
was operated by an independent corporation. Slightly more than twenty-five per
cent of the registered voters in the town of Guttenberg resided in Galaxy
Towers. For the prior decade, the Galaxy Towers Condominium Association had
actively involved itself in local political affairs and regularly endorsed
candidates for school board and town council. It conducted regular voter
registration drives in the lobbies of the buildings, and, during the week prior
to each election, the Condominium Association regularly left flyers at each
apartment listing the preferred candidates. A condo political action committee
organized telephone squads to remind residents to vote and, on election day,
stationed volunteers in the lobbies of the three buildings to hand slate cards
PAGE 9
29 Rutgers L. J. 947, *958
to the residents as they crossed the lobbies to the polling place, which was
located in the adjacent mall. Ninety per cent of the voters in Election District
6 lived in the Galaxy. The mall [*959] was open to the public, which one could
enter from a city street, but Galaxy residents had a private entry-way from each
of the Galaxy Towers. On Election Day, representatives of other candidates could
have access to the ten per cent of the District 6 registrants who did not reside
in the Galaxy, but could not hand literature to those who went to vote directly
from the Galaxy premises.
Not surprisingly, the Galaxy vote invariably went about ninety-eight per
cent for the slate endorsed by the association. The Guttenberg Taxpayers
Association, which regularly supported candidates opposing the Galaxy-backed
slate, was denied the right to distribute its literature in the buildings. The
Taxpayers Association slate regularly carried the rest of the town by margins of
approximately two to one, but when the Galaxy vote was counted, the Galaxy slate
always prevailed. So went the Galaxy, so went Guttenberg!
The Taxpayers Association filed suit prior to the 1994 school board election
seeking the right to distribute its materials in the Galaxy in the same manner
that the Condominium Association did. The first time around the trial court
dismissed the case. The judge held that the Galaxy was private property and the
governing board could control access. By the time the appeal was heard in the
appellate division, the New Jersey Supreme Court had decided the shopping mall
case. In that opinion, the court made several points of direct relevance to the
Galaxy case:
(1) It modified the tripartite test it had originally articulated in the
Princeton case to make clear that "primary use" of the property included the
normal uses to which the property had been put whether or not deliberately
intended by the property owner. n57
(2) It held that the public invitation did not have to be express, but could
be implied from the uses to which the property had previously been put. n58
(3) Finally, the Wilentz opinion expressly endorsed the public function
analysis used by the United States Supreme Court in Marsh and held that the
tripartite test of the Schmid n59 case was only one application of the general
balancing test required by the New Jersey Constitution when rights of free
expression came into conflict with the rights of private property. n60
The New Jersey Appellate Division, citing the shopping mall opinion,
remanded the Galaxy case to the Superior Court in Hudson County for a full
[*960] evidentiary hearing. n61 That hearing established the facts recited
above regarding the political activities of the condo association and its
domination of local elections in Guttenberg.
This time the trial judge had no trouble ruling in favor of the plaintiffs.
Finding that the plaintiffs had "no adequate meaningful substitute for
'door-to-door communication,'" n62 the court held: "A level playing field
requires equal access to this condominium because it has become in essence a
political 'company town'. . . in which political access controlled by the
Association is the only 'game in town.'" n63 The court issued an injunction
requiring the condo association to allow the plaintiffs to distribute materials
in the building in "essentially the same manner" that the condo association
did. n64 Access was still within the association's control. If the association
PAGE 10
29 Rutgers L. J. 947, *960
wanted to make the Galaxy into a politics-free zone, it could do so. Plaintiffs'
rights were only derivative of the association's own political activities.
The appellate division unanimously upheld the decision of the trial judge
for the reasons stated in the trial court's opinion. n65 The New Jersey Supreme
Court subsequently denied certification. n66
VI. Conclusion
Once upon a time, the United States Supreme Court held that the First
Amendment offered special solicitude for "the poorly financed causes of little
people." n67 It was that notion that gave rise to decisions which protected the
right of grass-roots proselytizers to disseminate their messages in privately
owned company towns, at private shopping centers, as well as by going door to
door along the public streets. But the United States Supreme Court backed away
from doctrines which extended constitutional protections to privately owned
forums that had replaced public spaces; more and more of the nation's
residential streets are now off-limits in private gated [*961] communities. As
a consequence, the public forum for the "poorly financed causes of little
people" is shrinking away. If grass roots organizers cannot go to the new town
squares or go door to door in gated communities to disseminate their messages,
their opportunity to be heard is greatly reduced in the modern age.
Together with the Coalition opinion of Chief Justice Wilentz, the Galaxy
case offers new hope that "the poorly financed causes of little people" will not
be totally silenced in an increasingly privatized society. While the United
States Supreme Court operates with blinders when it comes to viewing public
forum doctrine, in New Jersey an earlier free-speech jurisprudence survives.
Consequently, other states now have an alternative model for defining the real
public forum--an inescapable chore as we come upon the new millennium, when the
title to formerly public space resides more in more in private hands.
FOOTNOTES:
n1 This paper was originally delivered as the Wayne Hyatt lecture at the two
annual law seminars of the Community Associations Institute, held in 1997 at
Arlington, Virginia and Marina Del Ray, California.
n2 Robins v. Pruneyard Shopping Ctr., 447 U.S. 74 (1980).
n3 334 U.S. 1 (1948).
n4 347 U.S. 483 (1954).
n5 Shelley, 334 U.S. at 20.
n6 See, e.g., Linn Valley Lakes Property Owners Ass'n v. Brockway, 824 P.2d
948, 951 (Kan. 1992); Midlake on Big Boulder Lake Ass'n v. Cappuccio, 673 A.2d
340, 342 (Pa. Super. Ct. 1996), appeal denied, 679 A.2d 230 (Pa. 1996).
n7 Gerber v. Longboat Harbour N. Condominium, Inc., 724 F. Supp. 884, 887
(M.D. Fla. 1989).
n8 326 U.S. 501 (1946).
PAGE 11
29 Rutgers L. J. 947, *961
n9 Id. at 508.
n10 Id.
n11 Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391
U.S. 308 (1968).
n12 Id.
n13 Id.
n14 Hudgens v. NLRB, 424 U.S. 507 (1976).
n15 Robins v. Pruneyard Shopping Ctr., 592 P.2d 341 (Cal. 1979), aff'd, 447
U.S. 74 (1980).
n16 Robins v. Pruneyard Shopping Ctr., 447 U.S. 74, 76-77 (1980).
n17 Id. at 76-88.
n18 Id. at 81, 88.
n19 U.S. Const. amend. I.
n20 U.S. Const. amend. XIV (emphasis added).
n21 N.J. Const. art. I, P 6.
n22 Id.
n23 "Every person may freely speak, write and publish his or her sentiments
on all subjects . . . ." Cal. Const. art. 1, @ 2.
n24 See, e.g., Woodland v. Michigan Citizens Lobby, 378 N.W.2d 337 (Mich.
1985); Eastwood Mall, Inc. v. Slanco, 626 N.E.2d 59 (Ohio 1994); Jacobs v.
Major, 407 N.W.2d 832 (Wis. 1987).
n25 See, e.g., Fiesta Mall Venture v. Mecham Recall Comm., 767 P.2d 719
(Ariz. Ct. App. 1988); State v. Felmet, 273 S.E.2d 708 (N.C. 1981); Republican
Party of Tex. v. Dietz, 940 S.W.2d 86 (Tex. 1997).
n26 See, e.g., Cologne v. Westfarms Ass'n, 469 A.2d 1201 (Conn. 1984); SHAD
Alliance v. Smith Haven Mall, 488 N.E.2d 1211 (N.Y. 1985).
n27 New Jersey Coalition Against War in the Middle E. v. J.M.B. Realty Corp.,
138 N.J. 326, 650 A.2d 757 (1994).
n28 Batchelder v. Allied Stores Int'l, Inc., 445 N.E.2d 590 (Mass. 1983).
n29 See, e.g., Westside Sane/Freeze v. Ernest W. Hahn, Inc., 224 Cal. App. 3d
546 (1990); Lloyd Corp. v. Whiffen, 849 P.2d 446 (Or. 1993); Southcenter Joint
Venture v. National Democratic Policy Comm., 780 P.2d 1282 (Wash. 1989).
n30 Bock v. Westminster Mall Co., 819 P.2d 55 (Colo. 1991).
PAGE 12
29 Rutgers L. J. 947, *961
n31 Western Pa. Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins.
Co., 515 A.2d 1331 (Pa. 1986).
n32 State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980).
n33 Id.
n34 New Jersey Coalition Against War in the Middle E. v. J.M.B. Realty Corp.,
138 N.J. 326, 336, 650 A.2d 757, 762 (1994).
n35 Id. at 337, 650 A.2d at 762-63.
n36 Id. at 341, 650 A.2d at 764G-65.
n37 Id. at 326, 650 A.2d at 757.
n38 Id. at 370, 650 A.2d at 779.
n39 See Carl B. Kress, Comment, Beyond Nahrstedt: Reviewing Restrictions
Governing Life in a Property Owner Association, 42 UCLA L. Rev. 837 (1995).
n40 See, e.g., N.J. Stat. Ann. @ 46:8B-12 (West 1989).
n41 For a review of the standards used in various states, see Kress, supra
note 39.
n42 See, e.g., Nahrstedt v. Lakeside Village Condominium Ass'n, Inc., 878
P.2d 1275 (Cal. 1994); Pines of Boca Barwood Condominium Ass'n, Inc. v. Cavouti,
605 So. 2d 984 (Fla. Dist. Ct. App. 1992); Board of Dir. of 175 East Del. Place
Homeowners Ass'n v. Hinojosa, 679 N.E.2d 407 (Ill. App. Ct. 1997); Noble v.
Murphy, 612 N.E.2d 266 (Mass. App. Ct. 1993).
n43 See, e.g., Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla.
Dist. Ct. App. 1981); see also, e.g., Apple II Condominium Ass'n v. Worth Bank &
Trust Co., 659 N.E.2d 93, 98 (Ill. App. Ct. 1995); Newport Condominium Ass'n v.
Concord Wis., Inc., 556 N.W.2d 775 (Wis. Ct. App. 1996).
n44 Nuzzo v. Board of Managers of Jefferson Village Condominium No. 1, 644
N.Y.S.2d 546 (N.Y. App. Div. 1996).
n45 Id.
n46 See, e.g., White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346
(Fla. 1979); Pines of Boca Barwood Condominium Ass'n, v. Cavouti, 605 So. 2d 984
(Fla. Dist. Ct. App. 1992); Basso, 393 So. 2d at 640.
n47 See, e.g., Levandusky v. One Fifth Ave. Apartment Corp., 553 N.E.2d 1317
(N.Y. 1990).
n48 Gerber v. Longboat Harbor N. Condominium, Inc. 724 F. Supp. 884 (M.D.
Fla. 1989), reaff'd in part and vacated in part, 757 F. Supp. 1339 (M.D. Fla.
1991); Hidden Harbor Estates, Inc. v. Norman, 309 So. 2d 180 (Fla. Dist. Ct.
App. 1975). See generally Susan F. French, The Constitution of a Private
Residential Government Should Include a Bill of Rights, 27 Wake Forest L. Rev.
345 (1992).
PAGE 13
29 Rutgers L. J. 947, *961
n49 326 U.S. 501 (1946).
n50 State v. Kolcz, 114 N.J. Super. 408, 276 A.2d 595 (Law Div. 1971).
n51 Id. at 416, 276 A.2d at 600.
n52 Laguna Publ'g Co. v. Golden Rain Found. of Laguna Hills, 131 Cal. App. 3d
816 (Cal. Ct. App. 1982).
n53 Id. at 843.
n54 Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981).
n55 Western Pa. Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins.
Co., 515 A.2d 1331, 1331 (Pa. 1986).
n56 Id. at 1336-37.
n57 New Jersey Coalition Against War in the Middle E. v. J.M.B. Realty Corp.,
138 N.J. 326, 333, 650 A.2d 757, 760 (1994).
n58 Id. at 333-34, 650 A.2d at 761.
n59 See supra notes 32-33 and accompanying text.
n60 New Jersey Coalition, 138 N.J. at 334, 650 A.2d at 761.
n61 Guttenberg Taxpayers & Rentpayers Ass'n v. Galaxy Towers Condominium
Ass'n, 296 N.J. Super. 101, 107, 686 A.2d 394, 398 (App. Div. 1995).
n62 Guttenberg Taxpayers & Rentpayers Ass'n v. Galaxy Towers Condominium
Ass'n, 297 N.J. Super. 404, 410, 688 A.2d 156, 159 (Ch. Div. 1996).
n63 Id. at 411, 688 A.2d at 159.
n64 Id.
n65 Guttenberg Taxpayers & Rentpayers Ass'n v. Galaxy Towers Condominium
Ass'n, 297 N.J. Super. 309, 688 A.2d 108 (App. Div. 1996).
n66 Guttenberg Taxpayers & Rentpayers Ass'n v. Galaxy Towers Condominium
Ass'n, 149 N.J. 141, 693 A.2d 110 (1997).
n67 Martin v. Struthers, 319 U.S. 141, 146 (1943).
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