Wednesday, January 19, 2011

RE: First Amendment Coalition's Legal Hotline

Dear Mr. Six:
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.
A good place to start might be any rules promulgated by the Condo Association Board with respect to the bulletin board.  Conceivably, there are rules either allowing residents to post signs related to the election of board members or that purport to give the board complete discretion about what may be posted.
If there are no relevant rules (or if the board claims full discretion as to postings), a more complicated analysis is required.  Although the California Supreme Court found that California's free speech right applies to speech in a privately owned shopping mall because the mall is the modern-day equivalent of the traditional town square, Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899 (1979), subsequent cases have narrowed Robins' reach.  In 2001, the California Supreme Court said that a tenants' association did not have the right to distribute unsolicited flyers throughout a privately owned apartment complex.  Golden Gateway Ctr. v. Golden Gateway Tenants Ass'n, 26 Cal. 4th 1013, 1035 (2001).  But even in that case, the court "emphasize[d] that [its] decision ... does not give apartment owners carte blanche to stifle tenant speech.  Tenants may still have remedies under conventional property law principles. (See Lobsenz & Swanson, The Residential Tenant's Right to Freedom of Political Expression (1986) 10 U. Puget Sound L.Rev. 1, 45.)  Moreover, many statutes and ordinances serve to protect tenants against unreasonable lease provisions and restrictions. (See, e.g., Civ. Code, § 1942.5, 1942.6, 1953.)."  Id. at 1035.  In addition, even under a free speech analysis, there might be an argument to be made that a tenant bulletin board is a kind of limited public forum -- especially to the extent the bulletin board is located in a freely accessible location -- and that the Board may not restrict postings based on the viewpoint of the poster.
I hope this information is useful.  Good luck!
Katherine Keating
Katherine Keating
Holme Roberts & Owen LLP

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