Can I edit my message on the message board?

Can a homeowner's association restrict free speech on a residents-only message board?

• The cost of the Internet message board is paid from HOA dues, and access is restricted to those who live under the HOA and who are current on their dues.  Could the HOA edit or remove an unpopular or critical post and not face significant legal challenge?

• Answer:

  It depends. We'd need to know more about: where you live, the content of the deleted message, whether the association has deleted other messages, or just one, whether there is a rule of the homeowner's association that your message putatively violated, and if so what the rule says, and whether the association is attempting to enforce a ban on the post through any other means (e.g. fines levied, or a lien against your property) or has simply deleted the message. For example, since 2007, Illinois has restricted condo associations rules so that "no rule or regulation may impair any rights guaranteed by the First Amendment to the Constitution of the United States or Section 4 of Article I of the Illinois Constitution including, but not limited to, the free exercise of religion," 765 ILCS 605/18.4(h). These laws generally come in response to condo associations that ban certain religious practices; e.g. affixing a Jewish mezuzah to the door. In New Jersey, under a pair of cases decided by the state's highest court, private entities are in some situations restrained by the First Amendment. See New Jersey v. Schmid, 423 A.2d 615 (N.J. 1980); New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., 650 A.2d 757 (N.J. 1994). The New Jersey Supreme Court considered a challenge somewhat similar to yours, where dissident homeowners sought equal space in the association's newsletter, which was edited by people appointed by and friendly with the incumbent president. Committee for a Better Twin Rivers v. Twin Rivers Homeowners' Assoc., 929 A.2d 1060 (N.J. 2007). The dissidents didn't win that case, but a more egregiously discriminatory newsletter might have fared worse. In Florida, a federal district court threw out, on Constitutional grounds, a homeowners' association rule preventing an owner from displaying an American flag. Gerber v. Longboat Harbour North Condominium, 724 F. Supp 884 (M.D. Fla. 1989). There is now a federal law voiding HOA rules against the display of American flags everywhere. Freedom to Display the American Flag Act of 2005 (enacted 2006), 4 U.S.C. sec. 5 note. And in Massachusetts, there is a statute prohibiting private actors from interfering with another's constitutional rights, whether under color of law or not, Mass. Gen. Laws ch. 12, § 11I, although I could not find any reported cases in the context of a condo or homeowners' association. The most favorable situation for the censored homeowner might be a case involving an upcoming election to the HOA board or presidency, where the HOA includes thousands of people and the disputed message advocated for a challenger and was deleted by an incumbent, in contravention of an association rule that banned mention of challengers (but not incumbents) on the message board, and the association is attempting to enforce the ban with a monetary fine and lien on the homeowner's unit. Even better if the rule expresses some invidious discrimination: e.g., "no discussion of African-American candidates to the HOA board." In my opinion, there is no way a homeowners' association could successfully enforce a racially-based censorship rule, no matter how properly adopted by the association's members. You are going to run into cases like Shelley v. Kraemer, 334 U.S. 1 (1948), which prevent judicial enforcement of racially restrictive covenants. On the other hand, if the association has a rule that its message board may only be used for messages of relevance to HOA business, and your post about something unrelated was deleted, that's a different story. See http://www.hoaleader.com/public/341.cfm So it really does depend.