Condo World: Freedom of speech and political signs in condominiums - Seacoastonline.com

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"If you’re not going to insult someone, you don’t need the First Amendment –Larry Flynt (Yes, that Larry Flynt.)

Let me start with a clear, unequivocal statement. Owners in community associations, be they part of a condominium association or a homeowners association, do not have freedom of speech. Every arm chair constitutionalist will disagree, but it’s true.

Here’s what the First Amendment to our Constitution actually says:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

It’s important to note, first of all, that it says "Congress shall make no laws…" that interfere with a person’s freedom of speech. Others can make rules that prohibit freedom of speech.

Further, and most importantly here, condos are on private property. As such, just as I could, for instance, make a law for within the privacy of my home that says neither my wife, nor daughter could ever say anything bad about me (a "law" that would surely never pass), so, too, can condo associations make a rule that notes people do not have absolute freedom of speech at the condo.

Freedom of speech is not absolute when not on private property. Many have heard the most popular example, i.e. a person can’t falsely yell "Fire!"in a crowded movie theater, because it endangers people who may get hurt in the rush to get out.

The law is filled with examples where freedom of speech has been curtailed, such as Libel, i.e. writing something inappropriate about someone, and slander, i.e., saying something appropriate about someone. (If you want to watch a good movie that well explains libel, stream "Absence of Malice" with Paul Newman and … well, it doesn’t really matter who is in a movie if Paul Newman is in it.)

Further, people cannot say anything that threatens the life of the president or say anything that will incite violence against others. So the freedom of speech we all have, is restricted and not an absolute right.

As courts haven noted, by voluntarily purchasing into a condo association, owners give up some of their rights, and the rights are dictated by the declaration and bylaws. And the freedom to speak our mind is one of those rights restricted in condo associations.

Since control over the common area rests with boards of directors, boards can even, as noted in a previous column, prohibit the use and carrying of firearms on condo property. Not inside the unit, but on the common area.

How does all of this apply to condo associations? Boards of directors have control over the common areas, and one of their many duties is to create a community among the owners. They are, after all, called community associations. Toward this end, though passions run high for political parties and political partisans, boards should not allow political signs at a condominium association. By their nature, particularly in this highly partisan time, they cannot but divide a community, exactly what boards are supposed to guard against.

Keep in mind anything outside the unit is likely part of the common area, over which boards have control. So, it’s easy to pass a rule, if language is not already in your declaration or bylaws, to specifically note not political signs may be placed on the common area or inside the unit so as to be seen from the common area.

One might argue that placing a political sign inside a unit that can be seen outside is protected because it is inside the unit where boards have little control. But someone who argues that would be wrong. Anything from inside a unit that can be seen outside the unit naturally can have an effect on the common area.

Think of this way, the owner would not likely place a political sign in a window that only faces the inside of the unit. The only reason to face it toward the common area is to have an effect on those on the common area. Phrasing this all another way, everyone has freedom of speech. People can say anything they wish … but as with so many other things in life, there’s a consequence.

Attorney Robert E. Ducharme is a former teacher whose civil practice is limited to condominium law, primarily in Rockingham and Strafford counties. He can be reached at red@newhampshirecondolaw.com and Ducharme Law, P.L.L.C., found at https://ift.tt/2wf5oFt. His column appears bi-weekly.

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