First Amendment applies in condo’s suit over resident’s signs

Friday, November 4, 2011

The First Amendment limits how a condo group can punish a unit owner for displaying signs criticizing the management, a Massachusetts appeals court has ruled.

Steven Preu, who owns a unit at the Old Colony Village Condominium in Orleans, Mass., had a series of disputes with the condo management. Expressing his views on one dispute, Preu placed bags of dog feces in the common area and labeled the bags with the name of the board president, Gerard Ritzinger. Preu apparently believed that Ritzinger had allowed his dog to defecate in forbidden areas. In another instance, Preu posted hand-made signs in the trash room criticizing management, violating the condo association’s blanket rule prohibiting signs there.

The condo-association managers sued Preu for violating provisions of the bylaws and other association rules. They sued under a state law that allows condo associations to collect fines or recover expenses from unit owners who violate the master deed, bylaws, restrictions, rules or regulations.

Preu contended that his signs were a form of communication protected under the First Amendment. The managers countered that the First Amendment did not protect Preu because the condo association is a private, not a government, entity. A controlling principle of constitutional law is that the protections in the Bill of Rights, including the First Amendment, limit only government or state actors. This principle is sometimes called the state action doctrine.

A trial judge ruled that “communication by signs and posters is pure speech” and that the First Amendment protected Preu. The condo board appealed and the Massachusetts Appeals Court also ruled in favor of Preu in its Oct. 31 decision in Board of Managers of Old Colony Village Condominium v. Preu.

“The United States Supreme Court has made clear in the context of civil actions that the ‘application of state rules of law in state courts in a manner alleged to restrict First Amendment freedoms constitutes state action,’” the appeals court wrote.

As examples, the appeals court cited two Supreme Court cases. The Court ruled in New York Times Co. v. Sullivan (1964) that the First Amendment applied when individuals sued a newspaper for defamation. And in Cohen v. Cowles Media (1991) the justices said the First Amendment applied when a source sued a newspaper for breaking a promise of confidentiality.

The Massachusetts Appeals Court reasoned that the lawsuit invoking a state law for collecting damages from a unit owner was sufficient state action to trigger the First Amendment.

The appeals court cautioned that its decision was a narrow one.

“We do not hold condominium restrictions on speech and expressive conduct may never be enforceable, nor that expenses incurred in addressing their violation may never be shifted to the unit owner under the statute,” the court wrote. “We hold only that when an action is brought claiming the breach of such restrictions amounting to conduct entitling a plaintiff to shift costs under … [state law] … , the restrictions are subject to scrutiny under the First Amendment.”

Though the court said its ruling was narrow, it’s also significant. Many condo residents have likely felt at one time or another that restrictions in their association bylaws on signs and other forms of expression are unfair and unreasonable.

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