NJ Supreme Court Hold Leaflet Ban Is Unconstitutional

It has  been declared! NJ Supreme Court Hold Leaflet Ban is Unconstitutional…

If you live in a New Jersey condominium complex, you may notice an increase in flyers, advertisements, and other promotional material in your common areas. In Dublirer v. 200 Linwood Avenue Owners, NJ Supreme Court hold leaflet ban as unconstitutional.

The Facts of the Case

As detailed more fully in a prior post, the suit challenged a house rule imposed on lessees of co-op units in a building known as Mediterranean Towers South in Fort Lee (Med South). The rule, entitled “Soliciting/Notices,” provides:

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, [in] the mailroom, in the halls, lobby, elevators or on the doorways. A bulletin board for residents[‘] use is provided [near] the rear door.

Plaintiff Robert Dublirer alleged that the co-op’s board of directors violated his rights under Article I, Paragraph 6 of the state constitution by denying his request to distribute literature in support of his candidacy for the board. While the trial court dismissed the suit, the Appellate Division reversed after finding that the leaflet rule was too restrictive.

The Court’s Decision

The Supreme Court of New Jersey affirmed, finding that the leaflet ban ran afoul of the plaintiff’s free speech rights. In reaching its decision, the court consulted a number of the its prior decisions, including those related to restrictions imposed on visitors to private property. It also considered its ruling in Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Association,which addressed challenges to restrictions on “political-like speech” aimed at affecting the manner in which a common interest condominium community was managed by its homeowner’s association.

After determining that existing precedent was “not a perfect fit,” the NJ Supreme Court established a new standard to evaluate restrictions on the right to free speech and assembly for residents of a private common-interest community. As explained by Chief Justice Stuart Rabner, courts must “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.’”

In this case, the court determined that the outright been went too far and had the effect of chilling political speech, “which is entitled to the highest level of protection in our society.” The court further noted that the “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,” Judge Rabner added. “And residents could simply ignore or throw away any literature he placed under their doors.”

With regard to what type of restrictions would be permissible, the court indicated that co-op boards could limit the amount of material distributed by one person or the time of the day it is delivered.