The link below is from a homeowner in Minnesota who is outraged that her HOA has issued new rules against certain types of speech, like talking to your neighbor about the HOA board.
Can they really do that?
Well, yes they can. A private non-profit corporation can do just about anything it wants whether it seems constitutional or not.
A for-profit corporation can do the same. The Denver TV station where I worked for more than three decades had rules about private discussions between or among employees. Religion and politics were forbidden. Political correctness was mandated at all times.
But your home is your castle, isn’t it? Well, not in the modern Homeowners Association Movement. If your HOA board is as fascist as many of them are, even certain kinds of private conversation in your home are banned. And you can be fined. And liened. And your home confiscated and sold at auction, all because of a private dinnertime conversation you had with friends.
Until we can get the courts to recognize that Homeowners Associations are governments…we are doomed to hear an endless list of horrors.
Those of us who follow such things know that the U.S. Constitution doesn’t protect people in Homeowners Associations. The one exception, of course, is if you’re ‘colored,’ whatever that means. There actually is some case law to protect racial minorities and the handicapped. But other tenets of the Constitution? Forget it. Due process? Forget it. Free speech? Forget it.
This latest story comes from a Fort Collins, Colorado resident who put up a Bernie Sanders sign on her balcony. It was OK for a while. After all, it’s a college town and college kids are taught all about the Constitution. They just aren’t told that Homeowners Associations are private corporations in which residents don’t have access to the Bill of Rights.
The new management company at the Baystone Apartments sent out threatening letters, warning of fines of up to $5000 for people who incorrectly display political signs. Once the story ended up in the newspaper the management company cried, “Oops!” But that’s only temporary. As soon as the public furor dies down they’ll start assessing fines all over again.
Long live the First Amendment! Well, that is if you’re not in an HOA! And 20 to 25% of Americans have already surrendered their right to Constitutional protection.
A few days ago I linked to the Mel Pittel case in the Meadow Creek Homeowners Association in a suburb of Minneapolis. Several years ago, Mel became suspicious of odd expenditures by his HOA board, and he got himself elected to the board. He also published a frequent blog about his HOA. The HOA, along with a powerful board member who owned a number of rental units there, not only refused to seat Mel on the board, but sued him over his website. A judge issued a gag order prohibiting Mel’s use of the Meadow Creek name on his blog.
Well, on appeal a fascinating decision was issued in Minnesota that overturned the illegal muzzle placed on Mel Pittel. It quoted a landmark 1931 free press decision by the U.S. Supreme Court that few people even know about. A newspaper article is linked down below.
But first, let’s discuss our Homeowners Rights movement. Government leaders of all kinds hate the First Amendment to the Constitution. Once in power, politicians hate to be criticized. They think they’ve earned their power and they despise the fact that in our Constitutional Republic the common people have power to speak out and object. From Bush, to Clinton, to GW Bush, to Obama, every President has tried to stifle speech. Abuse of the First Amendment is non-partisan. And that kind of corruption flows from the very top of government to the tiniest HOA quasi-government. That kind of corruption is deeply ingrained in ALL the current candidates for President.
At the local level HOA boards across the country use a variety of ways to stifle honest criticism. They fine, lien, sue and seize property of miscreants. They shut down free speech in HOA neighborhoods. They resort to neighborhood ‘shaming’ of anyone who questions or stands up against bully boards and the lawn Nazis.
You and I have an absolute moral obligation to stand up and demand that all politicians from every level of government leave our First Amendment alone. In all the world, our First Amendment is unique. The right to criticize is what keeps us free.
In the link below, pay special attention to the last few paragraphs. In fact, read them first before you study the rest of the article!
A threat to all users of the World Wide Web is growing and it could catch all of us by surprise. The European Parliament is considering a change in copyright law that could impact hundreds of millions of websites. The same copyright changes have been suggested in the U.S. as well.
It’s called ‘ancillary copyright.’ Boiled down to basics, it means that websites violate international copyright law if they provide hyperlinks to other websites. In other words, if I give you a link to a publication that exposes a horrible HOA story somewhere I violate that publication’s copyright. The reasoning is horrible.
Many people who read NeighborsAtWar.com each night provide links to my website to their respective email lists. My readership always goes up on those days, so I don’t object to anyone linking to an interesting post on this blog. In face, I encourage everyone to do so. I will NEVER claim that you violated my copyright even if I say something embarrassingly stupid, which I sometimes do. But a growing number of national and international organizations are demanding that the act of providing hyperlinks be criminalized.
The reasoning is nuts. The ultimate result will be that hundreds of millions of websites will simply have to shut down. It’s a huge muzzle on free speech and free access to information. News aggregators like Drudge, Breitbart, and Huffington Post will simply have to quit doing business. Our lives and our free access to information have been remarkably improved since the invention of the World Wide Web and hyperlinks. But free access to information threatens many in the establishment.
Our anti-HOA movement is growing exponentially because we’re all able to share stories about the huge scam known as the Homeowners Association Movement. Fight this suppression of Free Speech whenever and wherever it occurs.
As the 2016 Presidential election campaign heats up, so do political sign controversies in homeowners associations. Here’s a perfect example from Florida, a dispute over a Hillary Clinton sign in a resident’s window.
Howard Finkelstein (2) is Public Defender for Broward County in Florida, but he moonlights as a legal analyst for the local Fox News affiliate. According to Finkelstein’s analysis, an HOA can deny a resident’s right to display a political sign as long as their documents are “written correctly,” and if the homeowner took this to court, she would “probably lose.” However, an HOA cannot allow some types of political signs (such as the one we see in the video about gun ownership rights) and not others ( a sign supporting Hillary Clinton).
That would be Selective Enforcement: that’s the kind of inconsistency that gets HOA Boards in trouble, the kind of stuff that leads to billable hours to the Association attorney to defend the indefensible. Guess who pays for this folly? Why, that would be all the homeowners.
Of course, Howard brings up the standard argument that because it is not the government, a private HOA can make up rules prohibiting signs. Or, as I like to say, the standard industry claim is that the Bill of Rights Need Not Apply, including your guarantee to Free Speech under the First Amendment.
But, is that absolutely true or is subject to interpretation?
Recent Case Law opens the door for future challenges
In 2012, the NJ Supreme Court, in Mazdabrook vs. Khan(3) ruled that an Association’s restriction against placing a political sign inside a condo unit’s window was unconstitutional under state law. Of course, the facts in Mazdabrook bear a striking resemblance to the action taken by Valencia Morris at The Enclave at Cutler Bay. Ms. Morris was threatened with a fine if she did not remove the small political sign she had placed on the inside of her unit’s window.
More recently, in 2014, in Dublirer vs 2000 Linwood Avenue Owners (4), the NJ Supreme Court upheld that the Association violated the state’s Constitution when it denied the owner of a Fort Lee Co-op the right to distribute campaign leaflets as he contemplated running for a seat on the Board.
In both cases, the NJ Supreme Court ruled that even a private organization such as an Association-Governed Residential Association, cannot restrict “too much speech” and rejected legal arguments for the Associations that a homeowner “gives up” Constitutional rights by taking title to an HOA property.
Now, some FL attorneys will argue that the NJ Constitution offers greater protection of rights involving private organizations. So let’s compare the two state Constitutions on the issue of free speech.
6. 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. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
SECTION 4. Freedom of speech and press.—Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.
Now, I’m not an attorney, but these two provisions seem to say essentially the same thing.
Are the winds of change blowing?
Allow me to leave the reader with one final thought, courtesy of the First Amendment Center at the Newseum Institute. In their recent survey (7), they asked: Does the First Amendment go too far in the rights it guarantees? Below you can see the results. (click on the graphic to enlarge)
Looking at perceptions of First Amendment rights for different age groups, it’s quite clear that younger generations are not going to put up with private corporate HOAs restricting speech! Time is on our side.
