NJ Supreme Court Rules Co-Op Board’s Leaflet Ban Violated Resident’s Free Speech Rights

In Dublirer v. 200 Linwood Avenue Owners, the Supreme Court of New Jersey recently held that a co-op’s leaflet ban was unconstitutional. In reaching its decision, the court clarified the standard to evaluate restrictions on free speech in a common-interest community like the building in this case.

The Facts of the Case 

The case centers on a house rule imposed on residents in a Fort Lee high-rise cooperative apartment building. The rule, entitled “Soliciting/Notices,” provides:

There shall be no solicitation or distribution of any written materials anywhere upon the premises without authorization of the Board of Directors.

Without prior consent of the Board of Directors, no sign or notice shall be placed upon the bulletin board, [in] the mailroom, in the halls, lobby, elevators or on the doorways. A bulletin board for residents[‘] use is provided [near] the rear door.

Plaintiff Robert Dublirer, a shareholder of defendant Linwood Avenue Owners, Inc., and a resident of one of the units, sought to distribute literature in support of his candidacy for the board of directors. Citing the house rule, it denied the request.

Dublirer filed, suit, alleging that the co-op’s board of directors violated his rights under Article I, Paragraph 6 of the New Jersey Constitution. In support of his case, Dubliner argued that the board regularly granted exceptions to the rule by distributing its own shareholder updates to residents and permitting local police and firefighters’ associations solicit donations on the premises. Dublirer further contended that his request to distribute flyers was summarily denied because he is often critical of the board in his publication, “The Med South Gadfly.”

The trial court dismissed the suit. However, the Appellate Division reversed after finding that the co-op’s house rule was too restrictive.

The Court’s Decision

The Supreme Court of New Jersey affirmed the decision, finding that the board of director’s policy violates the free speech clause of the State Constitution. As explained by the court, “The important right of residents to speak about the governance of their community, which presents a minimal intrusion when a leaflet is placed under a neighbor’s apartment door, outweighs the Board’s concerns.”

“Dublirer did not seek approval to use a bullhorn or a loudspeaker, or to erect a large sign in the lobby,” Chief Justice Stuart Rabner added. “And residents could simply ignore or throw away any literature he placed under their doors.”

In determining the standard to evaluate restrictions on free speech in a common-interest community, the New Jersey Supreme Court considered existing precedent regarding the balance between the rights of owners of private property, used by the public, and the free speech rights of visitors. However, it concluded it was “not a perfect fit” because “different concerns arise when the speaker is an owner, not a visitor, who seeks to exercise the right to free speech in the common-interest community where he or she lives.”

Accordingly, the court outlined a new test under which courts should focus on “the purpose of the expressional activity … in relation to” the property’s use and conduct as a more “general balancing of expressional rights and private property rights.”

For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

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