Tag Archive: First Amendment

Free Speech and Loathing in New Jersey, Part II

This is part two of a situational series about the city of Newark’s blockades to free speech. (Part one is here.)

Last night on WBGO, Mayor Cory Booker assured listeners that free speech rights are safe and sound in Newark and that the recently passed city ordinance affecting free speech rights in the city explicitly excepts First Amendment activities from the burdens of permits and fees.

I wish this were the case.

Pre-July 4th Fireworks in Lebanon Borough

The town newsletter for Lebanon Borough [Hunterdon County, population 1,065] is called the “Lebanon Lantern”. But the local government attitude towards free speech in this tiny densely populated borough is anything but ‘enlightening’.

Recently, Mayor Mark Paradis and July 4th Parade Chairwoman Debbie Masco declared that non-partisan voter registration in their town was too much of an “un-patriotic” and “political” activity to be held in Lebanon Borough in their public park after the July 4th parade. Unbelievably, they even went as far as to threaten to have the sheriff’s department arrest anyone who attempted to register voters. Can you say Bull Connor?

Also, Ms. Masco went as far to declare that voter registration in the public park after the parade would so offend her volunteers, that they would all up and quit and that would destroy the 61 year old Lebanon Parade forever. Ms. Masco, you need to keep things in perspective.

In my capacity as Hunterdon County Democratic Chair from 1996-2000, I oversaw the County Party’s voter registration efforts at local town events all over the County. We registered voters in just about every town from Lambertville to Readington —-from Union to Raritan Township. We registered anyone and everyone —-anytime there was a township community day or street fair or Flemington Fair.

Therefore, when I was asked by a group of young volunteers from the Democratic Party to assist them in organizing a non-partisan voter registration table at the public park in Lebanon Borough, I said I would help.

So, I called Mayor Paradis to make the arrangements for a small voter registration table, in a reasonable and legal location in or near the public park. That was when the pre-July 4th fireworks started.

Right off the bat, the Mayor denied my request, calling voter registration not within the “spirit of July 4th” or within the parade event theme of “America’s Moments in History”. Ironic, isn’t it?

The Lebanon Borough Park is a ‘public forum’—where it is completely within constitutional bounds to register voters, given reasonable ‘time, place and manner’ restrictions. A small unobtrusive voter registration table in a corner somewhere is all we asked for, and were constitutionally entitled to.

There is no activity more civic, more non-partisan, and more purely American than providing an opportunity for those who are eligible to vote to register. Voting is the basis of our democracy.

Just what about voter registration do Mayor Paradis and Ms. Masco find so offensive?

This was the first time in all my years in Hunterdon County that a seated Mayor declared that there would be “no voter registration” in his town. Throughout our conversation Mr. Paradis was never able to provide the authority he had to make such a declaration, either.

After more than an hour of a heated conference call, Mayor Paradis and Ms. Masco finally relented —but only after I was compelled to invoke the ACLU of NJ. Go figure.

Freedom of the Press — The Victor!

In January, the Student Government Association (SGA) at Montclair State University (MSU), under the leadership of SGA President Ron Chicken, stopped funding for the MSU student newspaper, The Montclarion.  The SGA took this drastic step because the newspaper had used its SGA-funded attorney, Sal Anderton, to pursue action against the SGA for holding closed meetings allegedly in violation of the Open Public Meetings Act.  In addition to freezing funding for the paper, the SGA also fired Anderton and demanded the newspaper use the SGA’s attorney, Aaron Easley.  As part of the SGA’s requirement that the newspaper use Mr. Easley, Mr. Chicken also required the newspaper to submit legal inquiries for Easley through Mr. Chicken and was not permitted access to Mr. Easley directly.  Hmmm.

There’s no place like home (no matter what your condo board says)

Blue Jersey invited Ed Barocas to reflect on the Twin Rivers case, the subject of a unanimous ruling last week by the state Supreme Court in this closely-watched free speech case. – Rosi Efthim

I bought a condo in Montclair five years ago and in no time my eyes were opened to the kind of power-plays, in-fighting, and venom that can spew over homeowners’ association politics.

My impassioned neighbors on various sides of the issues tried to engage me, knowing that I was the legal director of the ACLU-NJ, and pleading for help.

“I gave at the office” was my standard reply, and I meant it. The ACLU-NJ, along with the Rutgers Constitutional Litigation Clinic (run by the esteemed Professor Frank Askin), already represented homeowners in a legal battle being watched around the country.

The case, Committee for a Better Twin Rivers v. Twin Rivers Homeowners Association, was before the New Jersey Supreme Court, and its decision would ultimately determine the rights of more than one million New Jerseyans who, like me, live under the rule of homeowners’ associations. Twin Rivers involved a host of democratic rights — everything from whether homeowners have appeal rights when fined for offenses such as choosing a different door paint color to whether homeowners are allowed to post political signs on their property. 

Twin Rivers closely relates to an issue we litigated with the Constitutional Litigation Clinic thirteen years ago, concerning free speech rights in shopping malls. In that case, the winning argument was that shopping malls had essentially replaced the town square as a place for community to gather, and therefore free speech activities must be protected. In Twin Rivers, we similarly argued that for an eighth of the state’s population, homeowner’s associations have replaced government in establishing community policies and standards (some of these developments are so large that they have their own schools).

On Thursday, July 26, 2007, the long-awaited Twin Rivers decision came down with a unanimous decision against our clients, holding that the Twin Rivers Homeowners Association’s restrictions were reasonable and that, unlike shopping malls, homeowners associations do not invite in the public-at-large. Thus, the Court wrote that, while shopping malls act as public squares, homeowner associations do not act as municipalities. It viewed the situation ultimately as a private contractual agreement whereby certain rights can be waived.

Yet, upon reading the decision, our initial disappointment quickly morphed into encouragement. While the ruling was portrayed in the press as a win for the homeowners associations, in actuality, it is a victory for all homeowners who treasure free speech and expression.

We all thought that the questions “is this like the shopping malls” and “is the association a quasi-municipality” were the crux of the case, but we were wrong. Here’s why?

First, keep in mind that the Court applied the NJ constitutional analysis as it did in the other “quasi-public” contexts like the historic shopping mall cases. The Court ultimately held in Twin Rivers that unreasonable restrictions by homeowners associations on free speech on one’s private property would violate the state’s heightened constitutional free speech protection.

Because the NJ Constitution (unlike the U.S. Constitution) has an affirmative free speech right, the homeowners associations cannot unreasonably restrict that right when conducted on a person’s own private property. The Court held that the particular restriction at issue here (one sign permitted per every window within a residence) was not unreasonable, but the Court wrote that: “At a minimum, any restrictions on the exercise of those rights must be reasonable as to time, place, and manner. Our holding does not suggest…that residents of a homeowner association may never successfully seek constitutional redress against a governing association that unreasonably infringes they free speech rights.”

So, while the Court sided with the homeowners association based on the rights it granted to homeowners to display signs, the Court established that association restrictions will be subject to the constitutional standard that our Twin Rivers clients sought?. that they not be denied a reasonable opportunity to express themselves. We now know that associations do not have carte blanch — if they pass unreasonable restrictions, those restrictions will be shot down.

Yes, homeowners associations can limit certain free speech activities, especially when dealing with common areas (we lost on the issue of equal access to the association newsletter and other aspects related to communal areas), but the right of free speech in our homes can’t simply be contracted away.

Of course, once a court sets down a standard, there will always be groups down the road (either homeowner board members or dissident residents) who will test the waters to find out just what is “reasonable” and what is an “unreasonable” restriction on our right to free speech?.Having seen the way things happen in a homeowners association once one side or another digs their heels in, I am sure there will be no shortage of residents – in my own condo and elsewhere – who will be begging for me and the ACLU-NJ to get involved in Round 2.