6 minute read
Free Speech Rights: What Are the Limits?
By David Feingold, Esq.
In recent years, a trending issue has been how to deal with threatening, harassing, or defamatory statements that target community managers, directors, vendors, and sometimes other residents. I authored two recent articles for the Law Journal related Handling Harassment 101 (Spring 2022) and Dealing with Difficult People (Winter 2023), which can be accessed on the CACM website. As the title suggests, this article will address the limits of free speech to provide community managers with a deeper understanding of where the line, ever-shifting, might be today.
Free Speech Rights Matter
Free speech rights may be invoked only against governmental entities, not by your misguided relative to force you to listen to their rants at Thanksgiving dinner. Common interest developments are deemed quasigovernmental entities and thus must respect the free speech rights of individuals. However, free speech rights are not absolute, and there are no protections for speech that crosses the line into criminal activity, including incitement, threats, actionable civil harassment, or defamation.
Criminal Activity
Most know that falsely shouting “fire” in a crowded theater crosses the line into criminal activity, an analogy used in the 1919 U.S. Supreme Court case of Schenck v. United States to illustrate that speech is not protected if it is intended to incite others to action that would present a clear and present danger. That test has been modified, most notably by the 1969 case of Brandenburg v. Ohio, in which the test was changed to focus on whether the words used were such that they would incite imminent lawless action and were likely to produce such action.
In addition to incitement, statements that constitute “true threats” may be crimes and not protected speech. For years, the test was whether a reasonable person would interpret the statements as an intent to harm, an objective standard. However, this objective test was recently modified by the 2022 U.S. Supreme Court case of Counterman v. Colorado, which involved Billy Counterman, an obsessed fan who sent hundreds of unsolicited Facebook messages to a local singer, including messages ranging from “good morning, sweetheart” to “die.” The prosecution argued that these posts constituted “true threats” when viewed objectively, regardless of Billy’s subjective intent. In contrast, the defense argued that Billy’s subjective mindset must be considered. The Court agreed with Billy and held that a criminal threat required proving a subjective understanding of the threatening nature of the statements or that the statements were recklessly made.
The line is blurry, which is why the police officer who is asked to take a report about a member making threats against the board, management, or vendors may seem skeptical that a crime has been committed and advise that the threatened person seek a civil restraining order or file a civil action, and why the local prosecutor often refuses to bring criminal charges.
Civil Wrongs: Harassment and Defamation
While speech may not be a crime, it may be actionable harassment or defamation. Under California law, civil harassment includes any course of conduct that seriously alarms, annoys, or harasses, which serves no legitimate purpose, and which causes substantial emotional distress. Defamation refers to false statements of fact made about a person that harms that person’s reputation and may arise from spoken words (slander) or written words (libel).
Like criminal threats, there is no bright line test for civil wrongs, and case law is replete with examples of rude, obnoxious, and even false speech being protected. In Damon v. Ocean Hills Journalism Club (2000), the Court dismissed a former manager’s defamation case against members who had published letters or articles accusing him of incompetence and demanding he be fired, as such speech was protected. In Cabrera v. Alam (2011), a sitting director running for reelection sued a critic for defamation after she accused him of having “stolen from and defrauded the association” in an open meeting. The statements were protected speech, and the case was dismissed after the director could not show a probability of proving that the statements were false and made with actual malice or a reckless disregard for the truth. There are numerous instructive unpublished cases as well, including one in which a director facing recall sued members for defamation after they had asserted that the director was a “convicted criminal” and a “child molester” in public meetings and on a website. The speech was deemed protected, and the case was dismissed. (Glassner v. Smith (unpublished, not citable - 2015 WL 2127065).)
Finally, in a reflection of the trend toward extreme political polarization, a defamation lawsuit was filed against a candidate running for the highest office in the land, alleging that the candidate’s social media posts asserting that the Plaintiff was “a real dummy,” and “a major loser” with “zero credibility,” was dismissed as such statements were deemed matters of opinion. (Jacobus v Trump (2017 NY Slip Op 27006).)
While these examples are discouraging, it is crucial to understand that directors and community managers under attack, especially in their individual capacity, are also free to speak their minds and refute the claims against them. Even actions by a board of directors may enjoy free speech protection, as illustrated by the 2022 U.S. Supreme Court case of Houston Community College System v. Wilson, in which a board’s censure of a sitting director, which publicly declared the director’s actions as “not only inappropriate but reprehensible,” was deemed protected speech.
Manager Takeaways
The sharp rise of highly critical and personal attacks in community association life is new and, in my view, resulted from two compounding factors. The first factor is how those rights are exercised. The ubiquitous use of the internet, email, and social media has allowed for immediate, impersonal communications without a cooling off period or the normal human tendency to be respectful in a face-to-face interaction. The second factor is the steep decline in the civility of political discourse at the highest level, where name-calling and threats have replaced sober policy discussions.
While a community manager is not expected to become an expert in the legal nuances of free speech rights, these two takeaways must be kept in mind. First, just as free speech rights are fundamental to a functioning democratic society, they are also critical to a functioning and thriving community of homeowners, and one must expect criticism and guard against overreacting when the political discourse becomes personal. Second, when being barked at aggressively, it is perfectly acceptable to bark right back in most cases (and ideally after receiving guidance from legal counsel).
