Robert Dublirer v. 2000 Linwood Avenue Owners, Inc. (069154)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Robert Dublirer v. 2000 Linwood Avenue Owners, Inc., et al. (A-125-11) (069154)
Argued September 8, 2014 -- Decided December 3, 2014
RABNER, C.J., writing for a unanimous Court.
In this appeal, the Court considers the free speech rights of residents in a high-rise cooperative apartment
building.
Defendant 2000 Linwood Avenue Owners, Inc., owns a high-rise apartment building in Fort Lee known as
Mediterranean Towers South or Med South. Med South is a private cooperative apartment building, commonly
referred to as a “co-op.” In a co-op arrangement, residents buy shares of the building and they occupy their
apartments as leaseholders. Med South, governed by a Board of Directors, is home to about 1000 to 1200 residents
who live in 483 units. The shareholders or residents of a common-interest community like Med South agree to be
bound by the co-op’s by-laws and rules. Plaintiff Robert Dublirer bought shares in Med South and became a
resident in 2002. Dublirer, a regular critic of the building’s Board of Directors, was interested in running for a
Board seat and asked the Board if he could distribute campaign materials in the building.
The Board, citing a “House Rule” that barred soliciting and distributing any written materials, denied
Dublirer’s request. According to the Board, the rule has two aims: to preserve the residents’ quiet enjoyment of
their apartments and to cut down on litter or “paper pollution.” There are several exceptions to the House Rule. The
Board itself distributes various documents under apartment doors, including written “updates” that criticize the
Board’s opponents. In addition, the Board permits shareholders to knock on doors to solicit proxies for the annual
shareholders’ meeting, but shareholders may not discuss issues or candidates as they do so.
Dublirer publishes the “Med South Gadfly,” a newsletter that he distributes at pubic shareholder meetings
twice a year. The House Rule bars Dublirer and others from placing a newsletter under a neighbor’s door.
Residents can post items on the bulletin board in the rear lobby of the building and can distribute materials at two
annual board meetings that shareholders attend. They can also send documents to fellow shareholders by regular
mail, at a cost of more than $200 per mailing. In addition, residents may seek the Board’s approval to place signs or
notices in the building, but there do not appear to be any written guidelines to channel the Board’s discretion.
Dublirer filed a complaint in the Chancery Division on March 25, 2008. He challenged the House Rule and
sought to enjoin its use. The trial court declined to enter a preliminary injunction, without prejudice. Subsequently,
the court denied Med South’s motion to dismiss. Both parties moved for summary judgment. The trial court ruled
in favor of Med South, concluding that the House Rule was not unconstitutional, but denied Med South’s request for
attorney’s fees. Dublirer appealed the free speech issue, and Med South cross-appealed for attorney’s fees. In an
unpublished opinion issued in August 2011, the Appellate Division reversed and struck the House Rule on free
speech grounds. The panel noted, in part, that Dublirer’s expressional activity was “political-like speech” because it
related to the management and governance of the common-interest community. The panel further found that the
restriction was content-based and that it left Dublirer without reasonable alternative means to convey his message.
The Supreme Court granted Med South’s petition for certification on the free speech and attorney’s fees
issues. The Court also granted the American Civil Liberties Union of New Jersey (ACLU) motion to appear as
amicus curiae.
HELD: The Board of Directors’ House Rule violates the free speech guarantee in New Jersey’s Constitution. The
important right of residents to speak about the governance of their community, which presents a minimal intrusion
when a leaflet is placed under a neighbor’s apartment door, outweighs the Board’s concerns.
1
1. The New Jersey Constitution guarantees a broad affirmative right to free speech. It bars the government from
abridging free speech and also protects “against unreasonably restrictive or oppressive conduct on the part of private
entities” in certain circumstances. State v. Schmid, 84 N.J. 535, 560 (1980). Schmid, and later N.J. Coal. Against
War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326 (1994) (Coalition), explored restrictions on free speech
that owners of private property, used by the public, imposed on visitors. In Schmid, the Court articulated a three-
part test to examine the scope of free speech rights on privately owned property. The aim of the test was to
determine when an owner of private property “may be required to permit” others to exercise free speech rights,
“subject to suitable restrictions.” Schmid, supra, 84 N.J. at 563. In Coalition, the Court applied the Schmid test to
regional shopping centers that effectively banned leafleting on political and societal issues. Coalition, supra, 138
N.J. at 344. The Court pointedly added that it decided the case not based on Schmid alone but also “by the general
balancing of expressional rights and private property rights.” Id. at 362. (pp. 9-14)
2. Two recent cases considered different concerns that exist when a private community restricts the free speech
rights of one of its members. See Comm. for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 192 N.J.
344 (2007); Mazdabrook Commons Homeowners’ Ass’n v. Khan, 210 N.J. 482 (2012). In Twin Rivers, the Court
for the first time balanced the rights of fellow property owners in a common-interest community and applied both
the three-part Schmid test and Coalition’s general balancing test. In Mazdabrook, the Court, building on Twin
Rivers, recognized that the Schmid test was not designed “for situations when the person seeking to exercise the
right to free speech is not an outsider but a property owner as well – with both free speech and property rights.”
Mazdabrook, supra, 210 N.J. at 497-98. Both Twin Rivers and Mazdabrook noted that the Schmid/Coalition test
was not a perfect fit for private residential communities. In those cases, courts should focus on “the purpose of the
expressional activity undertaken” in relation to the property’s use and should also consider the “general balancing of
expressional rights and private property rights,” see Coalition, supra, 138 N.J. at 362. To be clear, this approach
applies when free speech restrictions are imposed on residents who enjoy property and free speech rights in a
common-interest community. When an outsider seeks to speak on private property that belongs to another but is
made available to the public, the Schmid/Coalition test will continue to apply. (pp. 14-19)
3. Dublirer’s message was akin to and should be treated as political speech, which is entitled to the highest level of
protection in our society. Dublirer’s proposed speech would interfere only minimally with the interests of the
apartment building and its residents and is not incompatible with the nature of the private property where he and his
neighbors dwell. Speech about governance is not incompatible with the place to be governed. If anything, speech
about matters of public interest, and about the qualifications of people who hold positions of trust, lies at the heart of
our societal values. See Mazdabrook, supra, 210 N.J. at 501. To assess the reasonableness of the Board’s
restriction, the Court considers whether convenient, feasible, and alternative means exist for Dublirer to “engage in
substantially the same expressional activity.” Schmid, supra, 84 N.J. at 563. Barring leaflets about political matters
cannot be considered a minor restriction. The available alternatives are simply not substantially the same as
presenting a leaflet to a neighbor. The Board can adopt reasonable time, place, and manner restrictions to serve the
community’s interest. See Mazdabrook, supra, 210 N.J. at 501. The Board, however, adopted no such limits. In
addition, it does not appear that any written standards exist to guide the Board’s discretion. Moreover, the Board
allows itself to distribute materials throughout the complex, but its critics cannot do so. On balance, the Court finds
that the restriction on Dublirer’s right to disseminate his written materials to neighbors is unreasonable. Dublirer’s
right to promote his candidacy, and to communicate his views about the governance of the community in which he
lives, outweigh the minor interference that neighbors will face from a leaflet under their door. In short, Dublirer’s
right to free speech outweighs the Board’s concerns about the use of the apartment building. The Court therefore
finds that the Board’s House Rule violates the free speech guarantee in New Jersey’s Constitution. (pp. 19-25)
The judgment of the Appellate Division as to plaintiff’s free speech claim is AFFIRMED.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in
CHIEF JUSTICE RABNER’s opinion. JUDGE CUFF (temporarily assigned) did not participate.
2
SUPREME COURT OF NEW JERSEY
A-125 September Term 2011
069154
ROBERT DUBLIRER,
Plaintiff-Respondent,
v.
2000 LINWOOD AVENUE OWNERS,
INC., DAVID HOCHSTADT, WAYNE
KOBY, THEODORE TOMASZEWICZ,
ETHEL BLUMENTHAL, SANDY
KOEPPEL, JUDITH ROSENTHAL and
JOSEPH VENTURA,
Defendants-Appellants.
Argued September 8, 2014 – Decided December 3, 2014
On certification to the Superior Court,
Appellate Division.
Natalie H. Mantell argued the cause for
appellants (Gibbons and Wolff & Samson,
attorneys; George A. Spadoro, of counsel;
Mr. Spadoro, Kevin McNulty, and Michael R.
Griffinger, on the briefs).
Robert Dublirer argued the cause pro se.
Frank Askin argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (Rutgers Constitutional Litigation
Clinic, attorneys).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
In this appeal, we consider the free speech rights of
residents in a high-rise cooperative apartment building. A
resident who was a regular critic of the building’s Board of
1
Directors was interested in running for a Board seat. He asked
the Board if he could distribute campaign materials in the
building. The Board, citing a “House Rule” that barred
soliciting and distributing any written materials, denied the
request. On prior occasions, though, the Board had distributed
written “updates” under apartment doors throughout the building,
which criticized the Board’s opponents. The resident filed a
lawsuit and claimed that the House Rule was unconstitutional.
We now clarify the standard to evaluate restrictions on
free speech in a common-interest community like the building in
this case. Some of this Court’s earlier case law addressed the
balance between the rights of owners of private property, used
by the public, and the free speech rights of visitors. See N.J.
Coal. Against War in the Middle East v. J.M.B. Realty Corp., 138
N.J. 326 (1994), cert. denied, 516 U.S. 812, 116 S. Ct. 62, 113
L. Ed. 2d 25 (1995) (Coalition); State v. Schmid, 84 N.J. 535
(1980), appeal dismissed sub nom. Princeton Univ. v. Schmid, 455
U.S. 100, 102 S. Ct. 867, 70 L. Ed. 2d 855 (1982).
Different concerns arise when the speaker is an owner, not
a visitor, who seeks to exercise the right to free speech in the
common-interest community where he or she lives. See Mazdabrook
Commons Homeowners’ Ass’n v. Khan, 210 N.J. 482, 498 (2012);
Comm. for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n,
192 N.J. 344, 367 (2007). In those cases, courts should focus
2
on “the purpose of the expressional activity . . . in relation
to” the property’s use, see Schmid, supra, 84 N.J. at 563, and
conduct a more “general balancing of expressional rights and
private property rights,” Coalition, supra, 138 N.J. at 362.
Under that approach, we find that the Board’s policy
violates the free speech clause of the State Constitution. The
important right of residents to speak about the governance of
their community, which presents a minimal intrusion when a
leaflet is placed under a neighbor’s apartment door, outweighs
the Board’s concerns. We therefore affirm the judgment of the
Appellate Division.
I.
Defendant 2000 Linwood Avenue Owners, Inc., owns a high-
rise apartment building in Fort Lee known as Mediterranean
Towers South or Med South. Med South is home to about 1000 to
1200 residents who live in 483 units.
Med South is a private cooperative apartment building,
commonly referred to as a “co-op.” In a co-op arrangement,
owners buy shares of a building and get a leasehold interest in
a unit in the building. See 15B Am. Jur. 2d Condominiums and
Cooperative Apartments § 56 (2014). Technically, residents do
not own their apartments but occupy them as leaseholders.
Med South is governed by a Board of Directors. It has
seven members who run for election each year and serve as
3
volunteers. The Board has the power to adopt “House Rules” that
apply to the community’s living arrangement; current rules cover
topics like deliveries, parking, the use of common areas, and
requests for repairs. The shareholders or residents of a
common-interest community like Med South agree to be bound by
the co-op’s by-laws and rules.
Plaintiff Robert Dublirer bought shares in the co-op and
became a resident in 2002. He challenges a House Rule, adopted
in 1987 and modified slightly in 1999, about solicitations and
notices. The House Rule reads as follows:
SOLICITING / NOTICES
There shall be no solicitation or distribution
of any written materials anywhere upon the
premises without authorization of the Board of
Directors.
Without prior consent of the Board of
Directors, no sign or notice shall be placed
upon the bulletin board, the mail room, in the
halls, lobby, elevators or on the doorways. A
bulletin board for residents [sic] use is
provided in the rear lobby.
According to the Board, the rule has two aims: to preserve the
residents’ quiet enjoyment of their apartments and to cut down
on litter or “paper pollution.”
There are several exceptions to the House Rule. The Board
itself can place written materials under apartment doors. The
Board also allows the local police department, fire department,
and ambulance corps to knock on residents’ doors and solicit
4
donations during the Christmas holiday season. In addition, the
Board permits shareholders to knock on doors to solicit proxies
for the annual shareholders’ meeting, but shareholders may not
discuss issues or candidates as they do so.
The first exception is noteworthy. The Board distributes
various documents under apartment doors: bills; notices for
repairs, testing of fire alarms, and the like; a copy of the
annual audit; and letters or “updates” about issues of common
interest. Multiple examples of the Board’s updates appear in
the record. The trial court charitably described them, in part,
as “partisan material” that “attack[s]” the Board’s “opponents.”
Indeed, on a number of occasions, the updates touted the Board’s
accomplishments and sharply challenged the credibility,
competence, and motives of its critics.
For his part, Dublirer publishes the “Med South Gadfly,” a
newsletter that he distributes at public shareholder meetings
twice a year. In similarly strong language, the newsletters
question whether the Board is financially irresponsible,
incompetent, and possibly corrupt.
The House Rule bars Dublirer and others from placing a
newsletter under a neighbor’s door. Residents can post items on
the bulletin board in the rear lobby of the building and can
distribute materials at two annual board meetings that
shareholders attend. Residents, of course, can also send
5
documents to fellow shareholders by regular mail, at a cost of
more than $200 per mailing. In addition, residents may seek the
Board’s approval to place signs or notices in the building, but
there do not appear to be any written guidelines to channel the
Board’s discretion.
On February 21, 2008, Dublirer advised the Board in a
letter that he might run for election to the Board. He asked
whether the House Rule that barred notices applied to campaign
materials. The Board’s attorney responded in writing two weeks
later: “The rule is clear and prohibits distribution of any
written materials without the authorization of the Board of
Directors.” After a few days, Dublirer wrote the Board and
asked for permission “to distribute written campaign materials
on the premises.” The Board denied the request.
Dublirer filed a complaint in the Chancery Division on
March 25, 2008. He challenged the House Rule against “posting
notices and distributing written campaign materials” and sought
to enjoin its use.1 His complaint named Linwood Avenue Owners,
Inc., and seven individuals who served on its Board of Directors
as defendants.
1 In addition, Dublirer sought relief in connection with an
aspect of the co-op’s election process, which is not part of
this appeal. We also do not consider any recent changes to the
rules to which the parties have referred. We rely on the rules
and practices outlined in the summary judgment record.
6
After a hearing in April 2008, the trial court declined to
enter a preliminary injunction without prejudice. Discovery
followed. Four months later, the court denied defendants’
motion to dismiss. Both parties moved for summary judgment in
February 2009.
The trial court ruled in favor of Med South and concluded
that the House Rule was not unconstitutional. The court
explained that the rule was uniformly employed and that Dublirer
had reasonable alternative methods to communicate. The trial
court also denied Med South’s request for attorney’s fees
because it found that the clause in the lease on that issue was
ambiguous.
Dublirer appealed the free speech issue, and Med South
cross-appealed for attorney’s fees. In an unpublished opinion
issued in August 2011, the Appellate Division reversed.
The appellate panel relied heavily on Twin Rivers and
struck the House Rule on free speech grounds. The panel noted
that Dublirer’s expressional activity was “political-like
speech” because it related to the management and governance of
the common-interest community. The panel found that the
restriction left Dublirer without reasonable alternative means
to convey his message. The panel also observed that the
restriction was content-based because Med South let charitable
organizations contact residents but denied Dublirer the same
7
opportunity. Because Med South did not prevail, the Appellate
Division saw no reason to consider the cross-appeal for
attorney’s fees.
Med South petitioned this Court for certification on the
free speech and attorney’s fees issues. We granted the
petition. We also granted the motion of the American Civil
Liberties Union of New Jersey (ACLU) to appear as amicus curiae.
II.
Med South argues that the judgment of the Appellate
Division should be reversed for a number of reasons. As a
preliminary matter, Med South claims that the State
Constitution’s guarantee of free speech does not apply to a
privately owned residential building. If the constitutional
protection applies, Med South maintains that prior precedent
requires reversal. The co-op argues that residents of a private
building have the right to agree to create a home that is a
refuge from litter and politics, and that their right to the
quiet enjoyment of their property outweighs Dublirer’s desire to
place leaflets under residents’ apartment doors. Med South also
claims that the Appellate Division failed to conduct the
required balancing test under Twin Rivers. The co-op argues, in
the alternative, that the House Rule is a reasonable time,
place, and manner regulation that affords Dublirer reasonable
8
alternatives. In the wake of this Court’s ruling in Mazdabrook,
Med South argues that the decision compels reversal as well.
Dublirer contends that the Appellate Division should be
affirmed because the House Rule violates his free speech rights.
He argues that this Court’s decision in Twin Rivers already
applied the free speech protections in the State Constitution to
a private residential community. He submits that the Appellate
Division properly applied the tests from Schmid and Coalition in
this case. Dublirer also highlights the importance of political
speech about the governance of a community to its shareholders
and owners.
The ACLU, represented by the Rutgers Constitutional
Litigation Clinic, argues that Mazdabrook supports an
affirmance. Among other arguments, the organization contends
that Dublirer’s constitutional rights outweigh the interests of
Med South and that the House Rule imposes an unfair restriction
on the exercise of free speech.
III.
A.
The New Jersey Constitution guarantees a broad affirmative
right to free speech: “Every person may freely speak, write and
publish his sentiments on all subjects, being responsible for
the abuse of that right. No law shall be passed to restrain or
abridge the liberty of speech or of the press.” N.J. Const.
9
art. I, ¶ 6. That guarantee is one of the broadest in the
nation, see Mazdabrook, supra, 210 N.J. at 492 (citing Green
Party v. Hartz Mountain Indus., Inc., 164 N.J. 127, 145 (2000)),
and it affords greater protection than the First Amendment, see
Coalition, supra, 138 N.J. at 352. Federal law requires “state
action” to invoke the First Amendment. See U.S. Const. amend. I
(“Congress shall make no law . . . abridging the freedom of
speech . . . .”); Twin Rivers, supra, 192 N.J. at 356. The
State Constitution does not. Mazdabrook, supra, 210 N.J. at
493.
As this Court explained in Schmid, the New Jersey
Constitution bars the government from abridging free speech and
also protects “against unreasonably restrictive or oppressive
conduct on the part of private entities” in certain
circumstances. Schmid, supra, 84 N.J. at 560. Schmid and
Coalition explored restrictions on free speech that owners of
private property, used by the public, imposed on visitors. Two
recent cases, Twin Rivers and Mazdabrook, considered different
concerns that exist when a private community restricts the free
speech rights of one of its members. In that situation, the
speaker is not an outsider but a property owner who enjoys both
property and free speech rights. Mazdabrook, supra, 210 N.J. at
497-98. In both settings, the Court examined whether limits on
10
an individual’s right of expression on private property ran
afoul of the Constitution’s guarantee of free speech.
We turn first to familiar cases that address the free
speech rights of outsiders who seek to speak on private
property. In Schmid, supra, the Court considered the question
of free speech on the campus of a private university. Princeton
University regulations in effect at the time required off-campus
groups to get advance permission to hand out materials on school
grounds. 84 N.J. at 538. Schmid, who was not a student, tried
to distribute political materials on the main campus and was
arrested and convicted for trespass. Ibid.
In overturning the conviction, the Court articulated a
three-part test to examine the scope of free speech rights on
privately owned property. That standard considers
(1) the nature, purposes, and primary use of
such private property, generally, its “normal”
use, (2) the extent and nature of the public’s
invitation to use that property, and (3) the
purpose of the expressional activity
undertaken upon such property in relation to
both the private and public use of the
property.
[Id. at 563.]
The aim of the test was to determine when an owner of private
property “may be required to permit” others to exercise free
speech rights, “subject to suitable restrictions.” Ibid.
11
The Court applied the test and found that (1) the primary
use of the University’s private property was for education, (2)
the University endorsed the “value of an open campus and the
full exposure of the college community to the ‘outside world,’”
and (3) Schmid’s activities were “not incompatible with either
Princeton University’s professed educational goals or the
University’s overall use of its property for educational
purposes.” Id. at 564-65.
Even if a visitor can satisfy the standard, the Court noted
that property owners can “fashion reasonable rules to control .
. . expressional rights” of others on their property. Id. at
563. To assess the reasonableness of a restriction, courts look
to whether “convenient and feasible alternative means” of free
speech exist, ibid., and whether the owner has reasonable
standards in place to protect the legitimate interests of the
parties, id. at 563, 567. The Court concluded that the
University violated Schmid’s state constitutional rights because
it lacked a reasonable regulatory scheme. Id. at 567.
Fourteen years later, in Coalition, the Court applied the
Schmid test to regional shopping centers that effectively banned
leafleting on political and societal issues. Coalition, supra,
138 N.J. at 344. Once again, the dispute pitted owners of
private property -- ten very large shopping centers -- against
individuals who tried to distribute leaflets in the malls in
12
opposition to military intervention in the Persian Gulf.
Coalition, supra, 138 N.J. at 336. The malls denied access.
Some refused to allow the individuals to leaflet; others imposed
conditions that “made it difficult . . . to reach the public.”
Id. at 337.
The Court likened the private malls to a public square or
downtown business district. Id. at 363. Tracking the factors
in Schmid, the Court found that the purpose of the private
property was not only commercial but also “all-embracing,” in
the tradition of a downtown business district; that the public’s
invitation to use the malls was broad; and that the free speech
in question was “no more discordant” with the uses of the
property than leafleting that had gone on in downtown business
districts for centuries. Id. at 333-34. All three factors,
therefore, favored individual free speech rights over the
owners’ property interests. Id. at 334.
The Court pointedly added that it decided the case not
based on Schmid alone but also “by the general balancing of
expressional rights and private property rights.” Id. at 362.
The Schmid test, the Court explained, was “specifically designed
with that balancing in mind.” Ibid. Under the newly described
standard, the Court weighed “the private property owners’
interest in controlling and limiting activities on their
property” and the protest group’s free speech interest, “the
13
most substantial in our constitutional scheme.” Id. at 363.
The balance, once again, favored “expressional rights . . . over
. . . private property interests.” Id. at 365. The malls’
owners were free to adopt reasonable time, place, and manner
restrictions to regulate the leafleting and make sure it did not
interfere with the shopping centers’ business. Id. at 362.
In Twin Rivers, the Court for the first time balanced the
rights of fellow property owners in a common-interest community.
Twin Rivers involved a large planned development of private
dwellings, which was governed by a homeowners’ association.
Twin Rivers, supra, 192 N.J. at 350. To avoid clutter and
preserve the aesthetic value of the common areas, the
association adopted a sign policy that allowed residents to post
no more than one sign per lawn and one per window. Id. at 351.
Unlike in this case, though, the residents could “walk through
the neighborhood, ring the doorbells of their neighbors, and
advance their views.” Id. at 368.
A group of residents claimed the sign policy violated their
free speech rights and challenged it in court. Id. at 351. The
dispute thus involved homeowners in a private community, not
outsiders, and restrictions on the use of both common areas and
the homeowners’ individual properties. The Court made note of
this “additional complication” and applied both the three-part
Schmid test and Coalition’s general balancing test. Id. at 365.
14
The Court found that the first two Schmid factors weighed in
favor of the association, a private residential community that
had “not invited the public to use its property.” Id. at 366.
The third factor, the Court explained, essentially “look[ed] to
the fairness of the restrictions imposed . . . in relation to
plaintiffs’ free speech rights.” Id. at 366-67.
Because the restrictions were minor and reasonable, and
“allowed expressional activities to take place,” the Court
concluded that the restrictions satisfied the “Schmid/Coalition
test” and did not violate the State Constitution. Id. at 367-
68. The Court stressed that its holding “does not suggest . . .
that residents of a homeowners’ association may never
successfully seek constitutional redress against a governing
association that unreasonably infringes their free speech
rights.” Id. at 368-69.
Mazdabrook returned to that question and addressed efforts
by a homeowners’ association to prohibit speech by one of its
members. The defendant, Wasim Khan, owned a townhouse in a
private common-interest community of 194 townhomes. Mazdabrook,
supra, 210 N.J. at 487. He placed signs in the front window and
inside the front door of his townhouse in support of his
candidacy for town council. Id. at 488. The homeowners’
association, in turn, ordered Khan to remove the signs because
they violated an association rule banning all residential signs
15
except “For Sale” signs. Ibid. That rule was part of the
association’s legitimate effort to maintain “the architectural
design and aesthetic appeal” of the common-interest community of
townhomes. Id. at 503.
The Court, building on Twin Rivers, recognized that the
Schmid test was not designed “for situations when the person
seeking to exercise the right to free speech is not an outsider
but a property owner as well –- with both free speech and
property rights.” Id. at 497-98. In response, the Court made
two adjustments to the analytical framework in such cases: it
enhanced the weight of the third Schmid factor and “elevate[d]
the importance of the general balancing test” in Coalition. Id.
at 498.
Under both tests, the Court concluded that the near-
complete ban on signs violated the homeowner’s free speech
rights. Id. at 503. The policy “hamper[ed] the most basic
right to speak about the political process and [Khan’s] own
candidacy for office.” Id. at 501. Yet the Court found “only
minimal interference with the [a]ssociation’s property or common
areas” because people could choose to view or ignore the signs.
Ibid. The Court concluded that Khan’s right to free speech
outweighed the association’s property interest. Id. at 504.
The Court again noted that a homeowners’ association has
the power to adopt reasonable time, place, and manner
16
restrictions. Id. at 501. It could place reasonable limits on
the number, location, and size of signs to serve the community’s
aesthetic interests. Id. at 501-02. The association’s blanket
ban on signs, however, left Khan without adequate, comparable
alternatives for his message. Id. at 502. The Court also
critiqued the board of directors’ “unfettered discretion” to
grant or deny a request to post a sign. Ibid. No written
standards existed to guide the board. Ibid.
We distill a number of principles from those cases. When
owners of private property, open to public use, attempt to limit
free speech and assembly rights of others, the Schmid/Coalition
test provides a way to balance both sides’ interests and assess
the reasonableness of the restrictions. The test was designed
to evaluate a person’s free speech rights on property belonging
to another –- a university campus in Schmid and a shopping mall
in Coalition.
More recent case law addresses a different situation: when
the governing board of a common-interest community attempts to
restrict speech by its fellow members. In that setting, the
speakers are not outsiders; they live in the community and have
both property and free speech rights there.
Med South contends that Twin Rivers “denied the
applicability” of the State Constitution to a residential,
planned development. It did not. The opinion applied the
17
standards outlined in Schmid and Coalition to a private common-
interest community and found no violation of the right to free
speech under the facts of the case. Twin Rivers, supra, 192
N.J. at 366-68. Mazdabrook followed the same course and reached
the opposite result on different facts. Mazdabrook, supra, 210
N.J. at 499-504.
Both decisions, though, noted that the Schmid/Coalition
test was not a perfect fit for private residential communities.
The first prong of the Schmid test, for example, is largely
subsumed by the issue itself. In the case of restrictions
imposed by the board of a private common-interest community of
dwellings, the primary nature and use of the property, by
definition, is private. The second prong –- the extent of the
public’s invitation to use the property -- is even less relevant
because residents do not need an invitation to use property in
their own community. This appeal underscores both concerns:
Dublirer is a resident and owner in a private co-op; he is not
an outsider who has been invited to the building.
For those reasons, we now clarify the standard to evaluate
restrictions on the right to free speech and assembly for
residents of a private common-interest community. In those
instances, courts should focus on “the purpose of the
expressional activity undertaken” in relation to the property’s
use, an inquiry adapted from Schmid, supra, 84 N.J. at 563, and
18
should also consider the “general balancing of expressional
rights and private property rights,” see Coalition, supra, 138
N.J. at 362. Both standards look to similar factors to
determine “the fairness of the restrictions imposed” with regard
to the residents’ free speech rights. Twin Rivers, supra, 192
N.J. at 366-67.
To be clear, this approach applies when free speech
restrictions are imposed on residents who enjoy property and
free speech rights in a common-interest community. When an
outsider seeks to speak on private property that belongs to
another but is made available to the public, the
Schmid/Coalition test will continue to apply.
B.
We now consider the constitutionality of the House Rule
under the above standard. We start by examining the purpose of
Dublirer’s speech.
Dublirer sought to be elected to the Board of Directors of
the co-op. His message related to the governance of the
residential community in which he lived. Thus, even though
Dublirer did not run for public office, his message was akin to
and should be treated as political speech, which is entitled to
the highest level of protection in our society. See Mazdabrook,
supra, 210 N.J. at 499 (“[P]olitical speech . . . lies ‘at the
core’ of our [State’s] constitutional free speech protections.”)
19
(citations omitted); State v. Miller, 83 N.J. 402, 411 (1980)
(noting political speech “occupies a preferred position in our
constitutionally-protected interests”); see also Verna v. Links
at Valleybrook Neighborhood Ass’n, Inc., 371 N.J. Super. 77, 98
(App. Div. 2004) (finding that candidate for board of directors
of homeowners’ association “should be deemed a limited purpose
public figure” in defamation context because position is
“essentially indistinguishable from a member of a town’s
governing body”). Also, as we noted in Mazdabrook, “[f]ree
speech protections assume particular importance in the context
of a person campaigning” for office. Mazdabrook, supra, 210
N.J. at 499.
We thus turn to the purpose of the restricted speech in
relation to the use of the property. See Schmid, supra, 84 N.J.
at 563. Med South is a private residential community in which
all shareholders agree to be bound by certain rules for the
benefit of the entire community. See Twin Rivers, supra, 192
N.J. at 367 (noting that “mutual benefit and reciprocal nature”
of rules and regulations are “essential to the fundamental
nature of the communal living arrangement”). We recognize the
importance of house rules in a co-op building like Med South,
where apartments share walls and ceilings and are connected by
common spaces.
20
Med South’s House Rules, in general, are designed to
promote the residents’ quiet enjoyment of their property. Med
South represents that the rule in question is also meant to
preserve privacy and minimize litter in the building. That
said, Dublirer’s proposed speech would interfere only minimally
with the interests of the apartment building and its residents.
Dublirer did not seek approval to use a bullhorn or a
loudspeaker, or to erect a large sign in the lobby. And
residents could simply ignore or throw away any literature he
placed under their doors. We are also not persuaded by Med
South’s argument that its notices do not create clutter yet
other notices would.
In any event, Dublirer’s proposed speech is not
incompatible with the nature of the private property where he
and his neighbors dwell. Speech about governance is not
incompatible with the place to be governed. Cf. Coalition,
supra, 138 N.J. at 375 (suggesting that commercial speech could
be incompatible with shopping center if, for example, it
encouraged shoppers to go elsewhere). If anything, speech about
matters of public interest, and about the qualifications of
people who hold positions of trust, lies at the heart of our
societal values. See Mazdabrook, supra, 210 N.J. at 501.
To assess the reasonableness of the Board’s restriction, we
consider whether convenient, feasible, and alternative means
21
exist for Dublirer to “engage in substantially the same
expressional activity.” Schmid, supra, 84 N.J. at 563. Med
South notes that Dublirer can post materials on a bulletin board
in the rear lobby of the building and can distribute information
at two annual board meetings. He can also use the postal system
to send mailings at a cost of more than $200 per mailing.
Dublirer instead sought permission to speak directly to the
audience he needed to reach: the voting members of the
community who were his neighbors. As the Supreme Court noted in
a different setting, “a person who puts up a sign at her
residence often intends to reach neighbors, an audience that
could not be reached nearly as well by other means.” City of
Ladue v. Gilleo, 512 U.S. 43, 57, 114 S. Ct. 2038, 2045, 129 L.
Ed. 2d 36, 48-49 (1994). The same is true in this case. In
addition, Dublirer sought to communicate with fellow co-op
members in the most direct and least expensive way possible --
by placing written campaign materials under the door of each
apartment. Barring leaflets about political matters cannot be
considered a minor restriction. The available alternatives are
simply not substantially the same as presenting a leaflet to a
neighbor.
The Board can adopt reasonable time, place, and manner
restrictions to serve the community’s interest. See Mazdabrook,
supra, 210 N.J. at 501. For example, it could reasonably limit
22
the number of written materials that an apartment dweller can
distribute in a given period. The Board could also reasonably
limit the hours of distribution to prevent early morning or late
evening activities. Cf. Twin Rivers, supra, 192 N.J. at 368
(upholding restrictions on number and location of political
signs). Those types of restrictions would promote the quiet
enjoyment of residents of the apartment complex without
unreasonably interfering with free speech rights.
The Board, though, adopted no such limits. It instead
banned the distribution of all written materials “anywhere upon
the premises without written authorization of the Board of
Directors,” except for a single bulletin board in the rear
lobby. It does not appear that any written standards exist to
guide the Board’s discretion. That situation has the natural
effect of chilling speech. Once again, we caution that
“[r]easonable restrictions should be clearly written in advance
and made known to the relevant community,” Mazdabrook, supra,
210 N.J. at 502; see also Schmid, supra, 84 N.J. at 567, so that
written criteria can guide a board’s discretion.
There are certain exceptions to the House Rule. The most
glaring one depends on who the speaker is: the Board allows
itself to distribute materials throughout the complex, but its
critics cannot do so. As the excerpts in the record reveal,
parts of the Board’s updates praise its achievements and harshly
23
criticize its opponents. But the Board prohibits detractors
from answering in the same manner.
The Board’s technical argument that it is not bound by the
House Rule because it has not signed a lease misses the mark.
Nothing in our case law permits a group in power to attack its
opponents yet bar them from responding in the same way. “As a
general rule, laws that by their terms distinguish favored
speech from disfavored speech on the basis of the ideas or views
expressed are content-based.” State v. DeAngelo, 197 N.J. 478,
487 (2009) (quoting Turner Broad. Sys. v. FCC, 512 U.S. 622,
643, 114 S. Ct. 2445, 2459, 129 L. Ed. 2d 497, 518 (1994)).
Here, the way the Board has implemented the House Rule renders
it content-based. But even if the Board stopped criticizing its
adversaries in the updates it distributes, it still could not
prevent critics from speaking out about important affairs of
governance in the manner sought here. As in Mazdabrook, we note
that our decision is not based on a finding of content-based
discrimination. See Mazdabrook, supra, 210 N.J. at 504-05.
The Board also permits the local police, firefighters, and
ambulance corps to solicit charitable contributions in the
apartment complex at the same time it bans residents from
soliciting for political purposes. However noble the impulse,
that practice also limits the right of free expression based on
the speaker and the content of the message.
24
On balance, we find that the restriction on Dublirer’s
right to disseminate his written materials to neighbors is
unreasonable. Dublirer’s right to promote his candidacy, and to
communicate his views about the governance of the community in
which he lives, outweigh the minor interference that neighbors
will face from a leaflet under their door. In short, Dublirer’s
right to free speech outweighs the Board’s concerns about the
use of the apartment building. We therefore find that the
Board’s House Rule violates the free speech guarantee in New
Jersey’s Constitution.
We do not side with either Dublirer or the Board in their
dispute. We simply uphold the constitutional right that affords
both the right to speak.
IV.
In light of our ruling, we do not address two other issues.
Because the Board is not a prevailing party, we do not consider
its request for attorney’s fees under its lease with Dublirer.
See Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 385
(2009); N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158
N.J. 561, 570 (1999).
We also do not consider whether the House Rule is contrary
to the Planned Real Estate Development Full Disclosure Act,
N.J.S.A. 45:22A-44(b), an argument that only the ACLU has
mentioned. See State v. O’Driscoll, 215 N.J. 461, 479 (2013)
25
(“[A]s a general rule, an amicus curiae must accept the case
before the court as presented by the parties and cannot raise
issues not raised by the parties.”) (citation omitted);
Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass’n, 91
N.J. 38, 48-49 (1982).
V.
For the reasons set forth above, we affirm the judgment of
the Appellate Division as to Dublirer’s free speech claim.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and
SOLOMON join in CHIEF JUSTICE RABNER’s opinion. JUDGE CUFF
(temporarily assigned) did not participate.
26
SUPREME COURT OF NEW JERSEY
NO. A-125 SEPTEMBER TERM 2011
ON CERTIFICATION TO Appellate Division, Superior Court
ROBERT DUBLIRER,
Plaintiff-Respondent,
v.
2000 LINWOOD AVENUE OWNERS,
INC., DAVID HOCHSTADT, WAYNE
KOBY, THEODORE TOMASZEWICZ,
ETHEL BLUMENTHAL, SANDY
KOEPPEL, JUDITH ROSENTHAL and
JOSEPH VENTURA,
Defendants-Appellants.
DECIDED December 3, 2014
Chief Justice Rabner PRESIDING
OPINION BY Chief Justice Rabner
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) ---------------------- -------------------
TOTALS 6
1