N.J. condo-sign ruling shows importance of state constitutions

Friday, June 15, 2012

When we think of free speech, we naturally think of the First Amendment – the first 45 words of the Bill of Rights that begins, “Congress shall make no law … .” But we should not forget about state constitutions, which also contain provisions protecting freedom of expression.

Under our legal system, state high courts are free to interpret their state constitutions as providing greater protection for individual liberty than the U.S. Supreme Court has done when interpreting the Bill of Rights. That partly explains why former U.S. Supreme Court Justice William Brennan urged state courts to use state constitutions in his famous 1977 Harvard Law Review article, “State Constitutions and the Protection of Individual Rights.”

The principle is that the U.S. Bill of Rights sets a floor, not a ceiling, with respect to individual liberty. A state high court can interpret its state constitution to exceed the protections accorded under the federal Constitution. It just cannot interpret its state provisions as providing less protection.

The New Jersey Supreme Court exercised this prerogative recently in invalidating restrictive homeowners association rules in Mazdabrook Commons Homeowners Association v. Khan. The case involved a resident of the homeowners association who was also a political candidate. He put up campaign signs in his windows and the association objected.

In the ensuing legal dispute, the homeowners association emphasized that generally such private associations can set rules as they please, as they are not government bodies. Individuals certainly don’t have a federal First Amendment claim, which protects individuals from governmental abridgements of speech — not restrictions by private entities.

The New Jersey high court recognized this, stating: “Federal case law requires some form of ‘state action’ to trigger the protections of the First Amendment.” But the state high court noted the very different wording of its state constitutional guarantee of 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.”

The first sentence of Article I, Section 6 of the New Jersey Constitution — unlike the First Amendment — mentions no explicit limitation to the government. “In New Jersey, an individual’s affirmative right to speak freely is protected not only from abridgement by government, but also from unreasonably restrictive and oppressive conduct by private entities in certain situations,” the New Jersey high court wrote.

Whether other states will follow New Jersey’s lead on speech restrictions by homeowners associations is unknown. But under at least some state constitutions, the potential is there.

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