Last week a New Jersey appellate court decided Mazdabrook Homeowners Association v. Kahn, bringing to the fore once again the debate over the exercise of free speech in a private community-association setting. The unpublished decision comes three years after the New Jersey Supreme Court garnered national attention with the case of Committee for a Better Twin Rivers v. Twin Rivers Homeonwers’ Ass’n,, determining that owners do not have unbridled rights of free speech in a private community. However, the Twin Rivers’ Court also cautioned that associations may not foreclose all avenues of expression and should not impose unreasonable restraints on the time, place and manner in which political speech can be expressed in a private community.

However, the Twin Rivers’ opinion left open a number of important issues. Most importantly what is “reasonable,” in terms of time, place and manner restraints, lies largely with the beholder. Further complicating this issue was the fact that the Twin Rivers community had a rather liberal and unusual provision concerning political signage. Unlike with most communities, Twin Rivers allowed residents to post a sign in every window of a unit that was visible to the outside. Thus, the Supreme Court easily determined that Twin River’s restraints on the time, manner and place concerning political signage were, in that case, reasonable.

It was only a matter of time before a more difficult - and perhaps more common - set of facts would be presented to a court. That was the case in Mazdabrook. But the Mazdabrook court appears to have missed an opportunity to fill in the gaps left by the Twin Rivers case. The court in Mazdabrook ruled on essentially two matters. One concerned the imposition of various fines by the association, on which we will comment in a separate note, and the second issue concerned whether Kahn could legitimately maintain a sign promoting his candidacy for public office.

The Mazdabrook community’s declaration provided that no signs could be maintained “on the exterior or interior of any Unit, except for one ‘For Sale’ sign on the interior of a Unit,” unless the board otherwise consented in writing. Kahn was advised that he must remove his sign, which he did, but he claimed that his constitutional rights had been violated under the Twin Rivers decision. The trial court disagreed, finding no violation.

The majority of the appellate court, however, reversed the trial court, holding that the restraints on Kahn’s ability to post a sign were not reasonable. In a curious part of the opinion the court further found that the restriction was not “content neutral” because for-sale signs were permitted. While it is true that restrictions on the exercise of political or expressional speech must be content neutral - meaning some messages cannot be disallowed while others are permitted - this analysis is generally applied only to political speech. It is not typically applied where a form of commercial speech is permitted but political speech is not.

The court concluded that the restriction was so broad so as to prohibit an entire type of communication that “has long been recognized as significant,” that it “regulates free speech rights of residents within their condominium units,” and, thus, the “sign restrictions are unconstitutional.”

However, the Mazdabrook court never analyzed “time, place and manner” at all and whether or not the restraints on time, place and manner left Kahn with a reasonable opportunity to otherwise express his opinions. The court focused only on the singular method of communicating by a sign in the window of his unit. Where the Twin Rivers’ Court had carefully concluded that reasonable alternatives for communication existed notwithstanding restraints on the exercise of free speech, the Mazdabrook court falls painfully short of these considerations.

It is important, though, to note that the three-judge panel was split. While two judges found the sign restriction unconstitutional, the third would have upheld the trial court’s decision. This judge, also using the Twin Rivers decision as his polestar, believed that the Supreme Court recognized that purchasers of units could bargain away some of their constitutional rights, including the right of free speech.

The dissenting judge, offering slightly more analysis, considered that there were adequate alternative opportunities available to Mr. Kahn. He could have mailed his campaign literature. He could have stood at the entrance to the community and handed out flyers or he could have gone door to door and spread his message. Further, since the restriction also permitted the owner to seek board approval for his sign, and Kahn never asked for an exception, he had not exhausted his remedies. Given that, the dissent found that the principles of Twin Rivers were not violated, adequate opportunity existed for disseminating expressional speech and there was a valid reason for restricting signs - the aesthetic harmony of the community.

Whenever an appellate panel issues a split decision, as here, the losing party has an automatic right of appeal to the Supreme Court. Hence, we expect that the final chapter in this matter has yet to be written and we will keep you advised as new events in this case unfold.

In the meantime, associations should avoid restrictive policies that altogether ban signage for the purpose of silencing political speech. It is perfectly reasonable for communities to regulate how many signs can be displayed within a single unit, the size of the signage and even limit the duration for the display. Associations are advised to impose only “reasonable” time, manner and place restrictions on the display of signage in their communities. If you have any questions concerning this Alert, please feel free to contract us.