Another election year is upon us, and with that comes the realization that neighbors in your condominium may not hold your political and ideological views. With this realization also comes the belief that, regardless of your own political views, those neighbors with views contrary to your own appear to be the most vocal. Most co-owners believe that the right to express one’s views in a peaceful manner is protected by our federal and state constitutions because every resident of a condominium in Michigan is protected by the U.S. Constitution and the Michigan Constitution. However, some associations want to know if political signs can be outright banned, or if not outright banned, whether the number, size or location of political signs may be restricted. This article briefly explores the interplay between the U.S. Constitution, the Michigan Constitution and the ability of the condominium bylaws or rules and regulations to restrict free speech.
Free Speech under the U.S. Constitution and the Michigan Constitution
The First Amendment to the U.S. Constitution states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. U.S. Const. amend. I.
The Michigan Constitution states:
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. Michigan Const. 1963 Art. I. § 5 Freedom of Speech and Press.
Notwithstanding the above protections, however, some condominium bylaws contain restrictions or outright prohibitions on political signs, and some associations have adopted rules and regulations imposing limitations more stringent than those set forth in the condominium bylaws. In Michigan, these restrictions are most likely valid and enforceable, even though they may appear to be contrary to the free speech protections guaranteed by the U.S. Constitution and the Michigan Constitution.
The Invocation of Free Speech Rights Requires State Action
It is well settled that the free speech protections of both the U.S. Constitution and the Michigan Constitution apply only to state action and not to private conduct. In Prysak v RI Polk Co, 193 Mich App 1, 10; 483 NW2d 629 (1992) (citations omitted), the Michigan Court of Appeals stated that “the federal and the Michigan constitutional provisions guaranteeing free speech do not extend to private conduct, but have been limited to protections against state action.” Accordingly, any co-owner who attempts to argue that limitations on free speech contained in condominium documents, including a limitation on political signs, are invalid as an improper restraint on the right to free speech will most likely be unsuccessful.
That is not to say that a condominium association has the unfettered discretion to adopt any bylaw, rule or regulation it sees fit to adopt. Any corporate bylaws adopted by a condominium association must be reasonable. See, e.g., Allnutt v Subsidiary High Court of United States Ancient Order of Forestors, 62 Mich 110; 28 NW 802 (1886); see also MCL 559.146. In addition, the Michigan Condominium Act, MCL 559.101, et seq., (the “Act”) permits bylaw provisions “[a]s are deemed appropriate for the administration of the condominium project not inconsistent with [the Act] or any other applicable laws.” MCL 559.156(a). These limitations on corporate power, however, do not provide the same protection as free speech. Further, while section 56a of the Act, enacted in 1991, prohibits any limitation which would preclude a co-owner from displaying a single United States flag of a size not greater than 3 feet by five feet “anywhere on the exterior of the co-owner’s condominium unit,” MCL 559.156a, by its very existence this protection suggests that certain other prohibitions on political speech may be reasonable. In addition, the Act requires condominium co-owners to comply with the condominium documents, which would include any limitation on political signs or free speech. MCL 559.165. Accordingly, while a co-owner may not like certain limitations on political activity or free speech, each co-owner has an obligation to abide by such limitations to the extent that they are reasonable.
Condominium Activity as State Action
Ultimately, in determining whether a condominium may impose limitations on the exercise of free speech, even in Michigan, the issue becomes whether such limitations constitute “state action.” As indicated above, a Michigan court is most likely to conclude that conduct of private parties does not constitute state action. Prysak, 193 Mich App at 10. There is authority, however, mostly in other jurisdictions, for the proposition that the enforcement of bylaws can constitute state action sufficient to invoke constitutional protections of free speech.
For example, the language of the New Jersey Constitution’s free speech protections are almost identical to Michigan’s, but New Jersey has described these protections as “broader than practically all others in the nation.” See Mazdabrook Commons Homeowners Ass’n v Khan, 210 NJ 482; 46 A3d 507 (2012); NJ Const art I, ¶ 6. While the language is the same, the interpretation is not. In Mazdabrook, 210 NJ at 493, the New Jersey Supreme Court indicated that in the State of New Jersey, in certain instances “the free speech and assembly clauses . . . can be invoked against private entities ‘because of the public use of their property.’” Id. This appears to contradict Michigan’s position as set forth in Prysak, 193 Mich App at 10. The Mazdabrook court indicated that it considered the “[p]olitical speech in support of one’s candidacy for public office [to be] fundamental to a democratic society[,]” and that, therefore, a condominium’s sign policy which constituted a “near-complete ban on signs” violated the “free speech clause of the State Constitution.” Mazdabrook, 210 NJ at 486. The Mazdabrook court stated that if the association sought to impose political sign limitations impairing free speech in the future, such limitations would have to be “reasonable time, place, and manner restrictions to serve the community’s interest.” Mazdabrook, 210 NJ at 501. Such restrictions could include a limitation on the location and quantity of residential signs, or a reasonable limitation on the size of the signs, but not an outright prohibition. Id. at 501-502.
In addition, the United States Supreme Court has previously held that “the action of state courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment.” Shelley v Kraemer, 334 US 1 (1948). There is also authority for the application of this principle to the First Amendment. Cohen v Cowles Media Co, 501 US 663, 668 (1991) (“Our cases teach that the application of state rules of law in state courts in a manner alleged to restrict First Amendment freedoms constitutes ‘state action’ under the Fourteenth Amendment.”). Under this type of analysis, an argument could be made that judicial enforcement of a bylaw provision which impinges co-owner free speech rights could constitute the “state action” necessary to trigger one’s free speech rights. This “judicial enforcement” theory, however, has not been consistently applied except in racial discrimination cases, and is unlikely to succeed in Michigan under a free speech analysis.
Finally, three related theories suggest that the more the actions of a condominium resemble the actions of the state, the more likely it is that the condominium’s actions could be deemed “state action.” In Marsh v Alabama, 326 US 501, 509-510 (1946), the U.S. Supreme Court held that the privately owned streets of a “company town” were subject to free speech protection. Two additional decisions provided similar, though different, analyses. See Jackson v Metropolitan Edison, 419 US 345 (1974) (applying “Sufficiently Close Nexus” test); Brentwood Academy v Tennessee Secondary School Athletic Ass’n, 531 US 288 (2001) (applying “Entwinement Theory” of state action).
Notwithstanding the above, because condominium bylaws are generally interpreted as private contracts between the co-owner and the association (or developer), it is unlikely that in Michigan a condominium’s prohibition or restrictions on such activity would be considered a violation of free speech.
Summer Resort Associations
It is worth noting that there are homeowner associations in Michigan which may be susceptible to one of the three theories set forth in Marsh, Jackson, or Brentwood Academy. Due to the state’s delegation of police power unique to such associations, it is conceivable that efforts by homeowner associations formed as summer resort associations under MCL 455.1, et seq., MCL 455.51, et seq., MCL 455.101, et seq., MCL 455.201, et seq., and MCL 455.301, et seq., to prohibit political signs could be considered “state action’ for purposes of determining whether such activity was protected free speech. This argument, however, does not appear to have ever been tested.
Condominium bylaws that ban or restrict the ability of co-owners to display political signs would most likely be considered valid, even if such a ban or restriction impinges what would have been considered one’s free speech rights. So before you dust off your “I Like Ike” yard sign, review your bylaws and rules and regulations to see if the sign is allowed. If not, while some theories exist which could be raised to argue that political speech in a condominium is protected speech, these theories will most likely be unsuccessful in Michigan. The purchaser of a condominium has agreed to abide by, and by statute is required to abide by, any reasonable limitations adopted by the condominium. Accordingly, the display of political signs in violation of condominium bylaws will most likely subject the violator to the bylaws’ penalties for default.
Matthew W. Heron is a Member of Hirzel Law, PLC where he focuses his practice on dispute avoidance, condominium law, commercial litigation, commercial real estate, land use, large contractual disputes and title litigation. He has extensive litigation and trial experience in state and federal courts involving commercial litigation issues and real estate matters. Mr. Heron concentrates his practice on drafting, revising, amending, restating and interpreting governing documents of condominium and homeowner’s associations in Michigan. He can be reached at (248) 480-8758 or firstname.lastname@example.org. You can also follow him on Twitter at @mwheron75.