5 minute read
What Can I Say?
EXERCISING FIRST AMENDMENT RIGHTS IN COMMUNITY ASSOCIATIONS.
By Brittany A. Ketchum, Esq.
We the people of the United States have fundamental constitutional rights, including freedom of speech, the right to peaceably assemble, and the right to post certain flags and banners. Both the First Amendment and California’s Constitution protect these rights against government interference by prohibiting laws that infringe upon these freedoms. Community associations, as private entities, are typically not subject to these constitutional protections.
However, boards do not have unfettered power to suppress all speech within the community.
Generally, boards have power to adopt “reasonable” operating rules for the community. An “unreasonable” rule is one that is arbitrary and capricious, violates the law or a fundamental public policy or imposes an undue burden on property. Because a rule that unreasonably burdens a fundamental constitutional right is void and unenforceable, community leaders must balance these constitutional rights with community association interests, such as promoting the health and safety of residents, preserving property values and enforcing the governing documents.
REGULATING SPEECH
“Speech” includes writings and other publications, such as signs, banners, posters and flags displayed on a member’s separate interest, as well as social media and other internet posts. Not all speech is protected. Nor are associations required to tolerate defamatory, obscene and harassing speech, or speech that would incite hatred, violence or harm. A board, management, staff and other vendors may take legal action against defamatory speech, which consists of false statements, spoken or written, published by residents. Although a member’s complaint made in open forum during a board meeting about management’s performance may not rise to the level of defamation, a statement that is untrue and damages the manager’s reputation is actionable.
Community associations should adopt a code of conduct setting forth the rules and regulations for meetings. Such a code can require members be respectful to one another and to the board, officers, manager, and other attendees; require member comments avoid disruptive behavior, profanity, personal or verbal attacks or harassment; and require members to behave courteously and refrain from using threatening, intimidating or abusive language. A code of conduct may be adopted by the board as an operating rule, providing the board authority to impose discipline (such as fines and suspension of common area amenity privileges, if permitted by the governing documents) against any member found to be in violation of the adopted code.
Harassing language or behavior is another type of speech that should not be tolerated. Harassment includes unlawful violence such as assault, battery or stalking, or a credible threat of violence. Harassing emails, phone calls and other communications to management may be actionable if a pattern of conduct can be established. At a minimum, the board can revoke a harassing resident’s right to communicate with the association by email or telephone, unless in the event of emergency.
SIGNS, POSTERS, FLAGS AND BANNERS
The law is also clear that members (including condominium owners) have the right to display noncommercial signs, posters, banners and flags, including the United States flag and flags of other countries, unless they create a risk to public health or safety or if it would violate a local, state, or federal law.
Pursuant to Civil Code § 4710, a protected noncommercial sign, poster, flag, or banner may be made of paper, cardboard, cloth, plastic, or fabric, and may be posted or displayed from the yard, window, door, balcony, or outside wall of the home or property, but may not be made of lights, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component, or include the painting of architectural surfaces.
However, like other speech, boards can prohibit signs, posters, flags and banners that are defamatory, obscene and harassing, or that would incite hatred, violence or harm. Boards may also adopt reasonable rules governing the time, manner and place of such protected signs. Many associations adopt rules limiting the number of signs that may be displayed, but the number must be reasonable and may depend on the size of the home and nature of the sign. Associations can also adopt rules prohibiting noncommercial signs and posters that are more than nine square feet in size and noncommercial flags or banners that are more than fifteen square feet in size.
Certain “commercial” signs are also protected under the law, including signs that advertise the property for lease or sale or advertise directions to the property, so long as the signs are reasonably located and are of reasonable dimensions and design, and do not adversely affect public safety, including traffic safety.
PEACEFUL ASSEMBLY
Members and other residents cannot be prohibited from peacefully assembling, meeting or using the common area (without paying a fee or deposit, and without obtaining liability insurance, or paying the premium or deductible on the association’s insurance policy) for purposes relating to common interest development living or for social, political, or educational purposes. Additionally, associations cannot prohibit members and residents from canvassing and petitioning the community or from distributing or circulating (without prior permission) information 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. An association is liable for a civil penalty of not more than five hundred dollars ($500) for each violation for preventing members and residents from engaging in any of the foregoing activities. Boards may, however, adopt rules per Civil Code § 4515 that require the foregoing activities be done in a reasonable manner and during reasonable hours.
Boards would do well to understand members’ First Amendment Rights when making and enforcing their rules.
Brittany A. Ketchum, Esq. is an associate attorney with Beaumont Tashjian, where she provides general counsel services to the firm’s clients.
