In 1990, a homeowner in Ladue, Missouri put a sign in her front yard that said, “Say No to War in the Persian Gulf, Call Congress Now.” The sign was vandalized. The homeowner reported the problem to the police, who told her the posting of all signs (with limited exceptions such as identifying the property) was prohibited by a local ordinance. Not surprisingly, the homeowner claimed such restrictions ran afoul of the First Amendment. She took her case to the US Supreme Court, and won.
At first blush, that case suggests the association might run into problems trying to regulate signage on an owner’s lot (or other forms of speech.)1 But—isn’t the law fun?—it’s not that simple. In the first place, the First Amendment by its language only limits actions by the federal government, although case law (and many state constitutions) make it clear the First Amendment also applies to local governments.
The difficulty here is that community associations aren’t governments. Nevertheless, they look a lot like governments, and many cases (and legal commentary) characterize them as “quasi-municipal” in nature—that is, functioning in a manner mighty like a government… The sticking point remains they aren’t really governments (if they were, they’d be entitled to broad immunity for actions they take as governments). And, some non-governmental entities such as “company towns” have been held to be subject to First Amendment protections. A “company town” is a type of employee housing where all homes are owned by the employer, and all aspects of community life are regulated by the employer. But California case law holds that community associations are NOT “company towns.”2
So if they AREN’T true governments, and they are not “company towns”, does the First Amendment protect speech and expressive speech such as signs within the community association? Does that next-door-neighbor really have an unbridled, First Amendment-protected right to erect a sign saying, for example, “The Manager is a Vile Human Being and Should be Fired?”
Questions like this have plagued California courts (and the legislature) for decades. In Laguna Woods Publishing v. Golden Rain Foundation (1982) 131 Cal.App.3d 816 (disapproved on other grounds in Katzberg v. Regents of Univ. of Cal. (2002) 29 Cal.4th 300, 357), the publisher of a commercial newspaper challenged the association’s refusal to allow it access to its gated community for purposes of delivering the newspaper to residents. The association DID allow its self-published commercial newspaper to be distributed to residents. The publisher alleged the exclusion violated its First Amendment rights. The court found the association functioned in a governmental fashion, and therefore could not discriminate between the association-approved newspapers and those of a competitor:
… While the public is not invited into Leisure World, Leisure World in many respects does display many of the attributes of a municipality. That is to say, although the public generally is not invited, there is substantial traffic into Leisure World of a variety of vendors and service persons whom the residents of Leisure World do invite in daily to accommodate the living needs of a community this large. By this we mean to refer to plumbers, electricians, refrigeration repairment, painters, United Parcel deliverymen, to name a few, plus the carriers of newspapers to which the residents have subscribed…”
Some twenty years later, however, the California Supreme Court put the validity of Laguna Woods Publishing in question. In Golden Gateway Ctr. v. Golden Gateway Tenants Association (2001) 26 Cal.4th 1013, the owner of an apartment complex sought to control the right of tenants to pass out literature critical of management. The Court held that the owner’s actions did not rise to the level of state action and thus did not violate First Amendment guarantees. The court went on to point out that if the owner of private property is the functional equivalent of a government (emphasizing the situation where the owner’s private property is open to the public), then Constitutional protections might pertain.
This more recent decision suggests (but does not specifically state) that a gated community might have greater rights to restrict the speech of its residents than a community which is open to the public. But surely that cannot be! Are we confused yet?
Further complicating the question of whether (and if so, to what extent) First Amendment protections apply to homeowners speaking within their communities are cases arising from California’s “anti-SLAPP” statute. “SLAPP” stands for “strategic lawsuit against public participation.” The statute allows the defendant in a lawsuit to try to have the court dismiss the lawsuit if it finds the lawsuit to have been filed in order to limit protected speech. While the statute allows the motion for language occurring in legislative and judicial proceedings, it also allows the motion to be made where the objectionable statement was made in a public forum, on an issue of public interest. The statute doesn’t reference the First Amendment, but the type of language it seeks to protect is often the same language sought to be protected by the First Amendment. And, case law makes clear that language critical of the association (or its residents) is, depending on the precise facts, “statements made in a public forum on an issue of public interest.” In Damon v. Ocean Hills Journalism Club et al. (2000) 84 Cal.App.4th 468, plaintiff—a former manager—sued the association and various persons within the association, based on allegedly defamatory statements made about him and his service as a manager. The association succeeded in having the suit stricken pursuant to anti-SLAPP motion. The court noted that the owners of a common interest development “comprise a little democratic subsociety…” and that a homeowners association board is in effect “a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government…” quoting from Nahrstedt v. Lakeside Village Condominium Ass’n. (1994) 8 Cal.4th 361. In Ruiz v. Harbor View Community Association (2005) 134 Cal.App.4th 1456, the situation was reversed, when an owner sued the association for statements made by the association regarding the owner’s proposed architectural changes, as well as statements made by the association’s attorney which referenced the homeowner was an attorney, and alleged he had violated his professional ethics in connection with the application consideration process. The association succeeded on its anti-SLAPP motion. The court noted the association’s speech was part of an ongoing discussion and contributed to public debate on the issues presented by the discussion. As to statements made after the association had denied the application (which might mean there was no ongoing dispute, and therefore the statements would not be protected by the anti-SLAPP statute), the court stated they nevertheless were covered by the anti-SLAPP statute because they “concern[ed] [association] governance and enforcement of its architectural guidelines…” which continued to be issues of concern for homeowners. Ibid at 1470.3
Further refining the notion of what constitutes protected speech in a community association, the court in Golden Eagle v. Rancho Santa Fe Association (2018) 19 Cal.App.5th 399, 418-419 held that the anti-SLAPP statute protects “private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity … In cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum occur in the contact of an ongoing controversy, dispute- or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance…” (In Golden Eagle, the speech in question was statements made by the association to its members and to a local government regarding an application for approval of proposed development. Its significance for our purposes is its broad-reaching definition of language protected by the anti-SLAPP statute.)
So, while statements made by a homeowner about association issues may not be directly protected by the First Amendment (because the association is not a true governmental entity), a resident’s right to make statements to his fellow residents—or post those pesky signs—may nonetheless be protected pursuant to the anti-SLAPP statute, if a court deems the speech/expression is “private conduct that … affects a community in a manner similar to that of a governmental entity…”
Confused? So was the legislature. Thus, in order to protect the resident’s rights of free speech, and in light of the confusion as to the extent of protection conferred by the First Amendment, California added two sections to the Davis-Stirling Act, Civil Code sections 4710 (in 2012) and 4515 (in 2018). Section 4710 provides that the governing documents may not prohibit posting or display of noncommercial signs, posters, flags or banners on or in a member’s separate interest, except as required for the protection of public health or safety, or if the posting or display would violate a local, state, or federal law. (The statute does provide for certain permissible types of material to make the sign, and a maximum square footage for such signs.) Section 4515 addresses the owner’s right to use common areas or use community-published media for the purpose of comment on a broad range of issues of public import, both as to the community and issues of public interest outside the community. The statute specifically provides that an owner may not be charged a fee, or required to obtain a special insurance policy, in order to use the common areas for such purposes (though the use by owner must be at a reasonable hour and in a reasonable manner.)
Bottom line: while the First Amendment may (or may not) apply to community associations when they seek to limit a resident’s speech, because the association is not actually a governmental entity, such limitations are not favored in the law. The Davis-Stirling Act provides some specific protections for political speech, and the anti-SLAPP statute may take up the slack in case of speech or expressions not specifically covered by Davis-Stirling. An association may be able to justify limiting residents’ speech rights for reasons of public health or safety, but the burden will be on the association to demonstrate the validity of such claims.
