Free Speech and your Community Association: Will the New Jersey Supreme Court’s ruling in Dublirer v 2000 Linwood Avenue Owners, Inc impact campaigning in Michigan Condominium Association elections?

In Dublirer v 2000 Linwood Avenue Owners, Inc the New Jersey Supreme Court considered the issue of whether or not an owner in a cooperative had a right to distribute campaign materials in seeking election to the co-op’s board of directors.  The Co-Op had a house rule that barred soliciting and distributing any written materials and the Co-Op denied Mr. Dublirer’s request to distribute campaign materials.  Mr. Dublirer challenged the Co-Op’s rule as unconstitutional and claimed that it violated his free speech rights under the New Jersey Constitution.  The provision of the New Jersey Constitution at issue provides as follows: “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.” N.J. Const. Art I, Section 6.  On December 4, 2014, the New Jersey Supreme Court held that while federal law requires state action to invoke the protections of the First Amendment, the New Jersey Constitution did not.  In ruling that Dublirer had right to distribute his campaign materials under the New Jersey Constitution, the Court indicated that the New Jersey Constitution protects against unreasonable or oppressive conduct by private entities, in addition to government entities.

Article I, Section 5 of the Michigan Constitution provides as follows: “Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.”  The language of Article I, Section 5 of the Michigan Constitution is almost identical to that of Article I, Section 6 of the New Jersey Constitution.  However, the Michigan Courts have previously ruled that “the federal and the Michigan constitutional provisions guaranteeing free speech do not extend to private conduct, but have been limited to protection against state action.”  Prysak v RL Polk Co, 193 Mich App 1, 10, 483 NW2d 629, 634 (1992).  Accordingly, it is unlikely that a Michigan Court would disallow a community association from regulating the use of campaign materials on constitutional grounds as community associations are private actors.

 Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country.  He has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2018, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel was named an Up & Coming Lawyer by Michigan Lawyer’s Weekly in 2015, an award given to only 30 attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 478-1800 or kevin@hirzellaw.com.