Free Speech vs. House Rules Balancing Both in Contentious Times

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The First Amendment of the US Constitution guarantees the right to free speech and expression - but how does that right apply to the residents of multifamily co-op or condo buildings? Does it apply at all? Can you - or the guy down the hall in 2B - display political, social, or religious statements from a window, terrace, or front door? The answer may surprise you.

Curbing Your Enthusiasm

“Condominiums and co-ops each have documents which govern the general use and operation of a building,” says Mark Hakim, an attorney with Schwartz Sladkus Reich Greenberg & Atlas, a law firm based in Manhattan, “and subject to their specific language, often prohibit affixing or displaying anything in a common area (e.g., roof, terrace, exterior) or hanging anything from a window. So depending on what’s being displayed, its exact message, and where it is affixed, hung, or displayed, boards may have legal authority to restrict or even prohibit [it].”

With those potential restrictions in mind, William McCracken, a partner with Morritt Hock & Hamroff, also based in Manhattan points out that certain expressions and displays are expressly protected, while others may not be. “There’s a provision of the New York Condominium Act, Section 339-j, which gives unit owners the right to the ‘display of a flag of the United States measuring not more than four feet by six feet,’” he says, “So we know that at the very least, condo boards cannot prohibit the display of an American flag up to a certain size. But the existence of this one limitation on a condo board’s regulatory powers suggests boards have discretion to regulate or restrict other types of displays.”

According to legal professionals, commercial speech does not get the same protections as, say, speech that is otherwise protected, or that the stifling of which could trigger claims of illegal discrimination.  

“A co-op or condo board can most likely prohibit a flag or other display from being affixed to [the exterior of] their building,” says Hakim, “but displaying a flag from within an apartment (subject to the requirements of the law) would not be [prohibited]. While New York’s State’s law protects, in this instance, flags, it would not protect displays of other items from within an apartment if the corporate documents of that building prohibit it. By-laws, proprietary leases, and house rules often prohibit the displaying of signs, advertisements, etc. regardless of the language or message - and that must be enforced. A board must enforce the provision prohibiting it, and must do so uniformly; a board that fails to do so may have breached its fiduciary duty to the owners.”

Should Boards Get Involved? 

“It does make good common sense for co-op and condo boards to take proactive steps to prevent potential conflict situations,” says McCracken. “That’s true of any number of issues - not just with respect to political displays. Having said that, people inevitably will disagree about things, and boards want to be careful not to insert themselves into disagreements that are not their responsibility, and that in any event they cannot resolve.” How a board or manager reacts may necessarily depend on the nature of the conflict, he continues. “Sometimes it’s best to do nothing and let people work it out amongst themselves. In other cases however, conflicts can become violent and the police need to be called. It really depends.  One practical bit of advice is for boards to ensure that their staff and management always make a written record of these sorts of flashpoint incidents, because you never know where they may lead.”

Hakim suggests that, “Boards should always be proactive and not sit idly by when there are issues in their building. However, with any hot-button topic - political or otherwise - it’s best for the board and its agents to remain neutral, monitor the situation, and address any actual violations of the corporate documents. Of course, if there is a security or safety concern at a building, the board should be proactive in its review and response - but political and similar issues are often too sensitive a topic to address easily, and any message sent to the residents may be misinterpreted to imply support of one position over another. It is a very tough position, especially as board members will have their own views on an issue or conflict, but those same members are charged with the duty to govern with the best interests of the building as a whole in mind.”

Constitutional Issues

It’s a common misconception that the First Amendment is a blanket concept that covers nearly all speech in all circumstances and settings - but that’s not the case. The amendment prohibits state agencies and actors from restricting individuals’ speech and expression - and that’s an important distinction when it comes to the context of a residential building or association, says McCracken. “There are some deep constitutional issues relating to free speech lurking here,” he says, “and [how your board addresses it] may depend to some extent on which jurisdiction you’re in. I understand, for example, that some states consider cooperatives and HOAs to be quasi-state actors, so they may be more constrained than others as to what types of displays they can restrict.” Knowing the laws and regulations in your particular state can help avoid compounding conflict with confusion if an issue around signage, flags, or other displays arises. 

Fundamentally, simply being a good neighbor and maintaining basic respect for one’s fellow inhabitants is the best policy, no matter what the issue of the day, or the overall political climate.

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