A S S O C I AT I O N E L E C T I O N S
Welcome to the Era of Sharp Elbows By Dave Feingold, Esq. and Matthew Haulk, Esq.
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he 19th century historian and philosopher Thomas Carlyle was combative by nature, and was of the view that “‘[n]o man lives without jostling and being jostled. In all ways he has to elbow himself through the world, giving and receiving offense.’’ While cynical, the metaphor “sharp elbows” is part of the lexicon, used to refer to anything from British constables elbowing their way through crowds to ruthless businessmen. Today, it seems to be used most often to describe a politician who views giving offense to others as a strategic advantage. Political rhetoric in local, state, and national elections has become increasingly less civil and hard to avoid as it is amplified by the ubiquitous nature of social media and electronic communications. This has predictably trickled down to association elections, where selecting volunteer leaders who will have an impact on a member’s home, money – and even family – can trigger strong emotions. As the first and primary source of guidance for volunteer directors, the community manager has an important role to play, especially when it comes to educating sitting directors during an election on two important concepts: free speech rights and the association’s proper role during an election.
FREE SPEEC H RIGHTS
Directors and members are often surprised, and dismayed, to learn that the association has little
8 The Law Journal Summer 2021 | cacm.org
an unprivileged false written or oral statement of fact that causes harm to another person. As a community manager you do not need to become a legal scholar on the laws of free speech, defamation or the nuances of anti-SLAPP motions. Consult with legal counsel, as necessary. You do need to know that, while exceptions to the general rule exist, even offensive statements during an election more often than not fall into the category of protected speech.
control over uncivil campaign advocacy. Common interest developments (“CID”) are considered “quasi-governmental” entities for many purposes, including when it comes to elections. California courts considering the broad free speech rights of community members have likened association elections to elections for public office, recognizing that “[p]ublic discussion about the qualifications of those who hold or who wish to hold positions of public trust presents the strongest possible case for application of the safeguards afforded by the First Amendment.” (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 473 (quoting from Matson v. Dvorak, 40 Cal.App.4th at 548).) What this means is that a statement about a matter of community interest (e.g., an election), even if rightly perceived as offensive or misleading, is protected speech. That speech may cross the line into actionable defamation, which in broad terms is
Case law has confirmed this conclusion time and time again, and these examples are instructive: • A statement made by a director running for re-election that a critic had “stolen from and defrauded the association” was not actionable defamation. Cabrera v. Alam (2011) 197 Cal. App.4th 1077. • Statements at meetings and in newsletters accusing the manager of incompetence and demanding he be fired was not actionable. Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468. • Statements by members in meetings and on a website promoting the recall of a director claiming the director was a “convicted criminal” and a “child molester” (or “pervert”, accounts differed) were not enough to avoid
