What Can I Say? EXERCISING FIRST AMENDMENT RIGHTS IN COMMUNITY ASSOCIATIONS. By Brittany A. Ketchum, Esq.
W
e the people of the United States
residents, preserving property values and
have fundamental constitutional
enforcing the governing documents.
rights, including freedom of
speech, the right to peaceably assemble,
REGULATING SPEECH
and the right to post certain flags and
“Speech” includes writings and other
banners. Both the First Amendment and
publications, such as signs, banners, posters
California’s Constitution protect these
and flags displayed on a member’s separate
rights against government interference by
interest, as well as social media and other
prohibiting laws that infringe upon these
internet posts. Not all speech is protected.
freedoms. Community associations, as
Nor are associations required to tolerate
private entities, are typically not subject
defamatory, obscene and harassing speech,
to these constitutional protections.
or speech that would incite hatred, violence
However, boards do not have unfettered
or harm. A board, management, staff and
power to suppress all speech within the
other vendors may take legal action against
community.
defamatory speech, which consists of false statements, spoken or written, published by
Generally, boards have power to adopt
residents. Although a member’s complaint
“reasonable” operating rules for the
made in open forum during a board
community. An “unreasonable” rule is one
meeting about management’s performance
defamatory, obscene
that is arbitrary and capricious, violates
may not rise to the level of defamation, a
and harassing speech, or
the law or a fundamental public policy or
statement that is untrue and damages the
imposes an undue burden on property.
manager’s reputation is actionable.
Associations are not required to tolerate
speech that would incite hatred, violence or harm.
18 The Law Journal Winter 2020 | cacm.org
Because a rule that unreasonably burdens a fundamental constitutional right is void
Community associations should adopt a
and unenforceable, community leaders
code of conduct setting forth the rules
must balance these constitutional rights
and regulations for meetings. Such a code
with community association interests,
can require members be respectful to one
such as promoting the health and safety of
another and to the board, officers, manager,
