REAL ESTATE LAW
Covenants, Conditions, and Restrictions… On Free Speech?

By Adrienne Iwamoto Suarez

Whether private common-interest communities (CICs) take the form of condominiums, cooperatives, master-planned communities, or gated communities, residents are contractually bound by covenants, conditions, and restrictions on the use of their property. Some of these covenants even restrict First Amendment activities by prohibiting solicitation, banning signs inside or outside a home, and prohibiting the distribution of newspapers on their streets.

A common-interest community is a private actor. Its restrictions on speech are not proscribed.

Because a CIC is a private actor for federal constitutional purposes, its restrictions on speech are not proscribed by the First Amendment. The two existing tests of state action that would be most applicable to CICs, the “functional equivalent” test and the “judicial enforcement” test, have limited or no applicability to the CIC. It is time for courts to re-envision their state action jurisprudence to take into account how CICs are changing the First Amendment landscape. This article also explores the possibility of private, legislative, and judicial solutions to the problem of unreasonable abridgement of speech rights on private property.

Failure of constitutional protection of free speech in CICs. In order for a CIC, a private actor, to be held to constitutional standards, a court would need to determine that it was in fact a state actor. Under the first test of state action, the “functional equivalent” test, courts initially liberally construed “state actors” to include a wide range of private property owners. In the seminal and promising case of Marsh v. Alabama, the U.S. Supreme Court examined the scope of free speech within a private residential company town. In this case, Grace Marsh was arrested for trespassing after distributing religious literature on the town’s sidewalks. The Court ruled that Marsh’s First Amendment rights could not be curtailed simply because she chose to exercise them on private property. If the private community possessed all the attributes of a town and had invited the public in some way, then it was the “functional equivalent” of a state actor and it could not restrict free speech in violation of the Constitution.

After a succession of similar cases granting ever-broader speech rights on private property, the Court abruptly rolled back its First Amendment jurisprudence. Under the Court’s current test, only those CICs organized as towns that are open to the public would qualify as state actors. The vast majority of modern CICs, however, consist primarily of residential and recreational areas without central business districts. Moreover, CICs are purely private property and in no way invite the public upon their premises. As such, these modern CICs have no federal constitutional responsibility to protect free speech upon their premises.

The United States Supreme Court has recognized the ability of the states, however, to afford speakers on private property greater rights under state constitutions. In PruneYard Shopping Center v. Robins, students sued a shopping center that denied them the right to distribute pamphlets and ask passersby to sign a petition. The California Supreme Court ruled in favor of the students and held that they enjoyed greater protection of their right to speech under the California Constitution than under the Federal Constitution. The U.S. Supreme Court affirmed.

State courts generally have not taken up the Court’s invitation to broadly construe speech rights under state constitutions. They are as unlikely as federal courts to consider CICs the functional equivalents of state actors. Thus, for now, covenants restricting free speech generally fly under federal and state constitutional radars.

Speakers will likely fare as poorly under another test of state action, the “judicial enforcement” test, set forth in Shelley v. Kraemer. In that case, an African American family bought a house with a deed containing a racially restrictive covenant. Neighboring property owners sued in state court to enjoin them from taking possession. The Court ruled that the state court’s enforcement of private covenants amounted to state action under the Fourteenth Amendment. It therefore invalidated the judgments of the state courts.

Shelley’s holding would seemingly extend to preclude state enforcement of a covenant restricting free speech, a fundamental right arguably on par with racial equality. Most courts, however, limit Shelley’s reach to racially restrictive covenants. Courts are unlikely to find that judicial enforcement of covenants restricting speech constitutes state action in violation of the First Amendment, even though conditioning CIC life upon relinquishing the fundamental right to speak is clearly offensive to constitutional ideals. In short, federal and state constitutions currently offer no relief for speakers who have been silenced on private property.

Emerging possibilities for protecting speech in CICs. Suggested limitations on the power of CICs to restrict speech include a CIC residents’ bill of rights, statutory protections of speech in CICs, and judicial invalidation of covenants that are unreasonable as against public policy. Courts also could reason within their existing analogy of CICs as “mini-governments” to demand that in exchange for mandatory assessments from residents, CICs must refrain from abridging residents’ First Amendment rights.

The most direct way for CICs to protect First Amendment rights is for them to adhere to a residents’ bill of rights. Barring that, state legislatures can always pass statutes mandating speech protection. For example, Arkansas law protects CIC residents’ right to display the American flag. Perhaps states such as Arkansas will expand statutory protection within private communities to embrace other activities such as leafleting, petitioning, and posting political signs.

If the political process fails to yield satisfactory protections, courts should have a free hand in reshaping community life along constitutional lines. Courts are frequently called upon to interpret private covenants and have upheld covenants that are reasonable. The Restatement, Third, of Property (Servitudes) encourages courts to probe beyond this deferential review to invalidate, as against public policy, a covenant that “unreasonably burdens a fundamental constitutional right,” such as speech.

Some courts have also latched onto the analogy of the community association as a mini-government. Like mini-governments, community associations “tax” their citizens in the form of assessment in exchange for providing community services. Community associations also negotiate among the competing interests of their residents, just as any true governmental body does. The reality is that common-interest community life is still subject to the give-and-take of the social contract. To secure the genuine consent of the privately governed, CICs would do well to recognize the value of safeguarding residents’ right to free speech.

Regardless of the form that speech protection takes, the ubiquity of CICs, their impact on the social and political lives of their residents, and the values of democracy and a free society dictate that First Amendment protections be preserved in the face of new challenges.

Courts must take into account how CICs are changing the First Amendment landscape.

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This article is an abridged and edited version of one that originally appeared on page 739 of Real Property, Probate and Trust Journal, Winter 2006 (40:4).

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Adrienne Iwamoto Suarez was a clerk for the Honorable Richard R. Clifton of the U.S. Court of Appeals for the Ninth Circuit (2005-2006). She is currently an associate in the trusts and estates department of Cades Schutte, a Honolulu law firm. She can be reached at .

Copyright 2007

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