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William G. Mulligan Foundation for Control of First Aid Squadders and Roving Paramedics v. Brooks

312 N.J. Super. 353, 711 A.2d 961 (App. Div. 1998)

HOMEOWNERS ASSOCIATIONS; FIRST AMENDMENT—A property owners association’s newsletter is not a public forum that requires acceptance of submitted advertisements.

A member of a property owners association had a grievance against a local rescue squad because of the way it responded to her husband’s medical emergency. One of the steps she took was to form a non-profit corporation named William G. Mulligan Foundation for the Control of First Aid Squadders and Roving Paramedics. In the name of the Foundation, she attempted to place an advertisement in a monthly newsletter published by her property owners association. While the newsletter had guidelines for “letters to editors,” it has no such guidelines for its paid advertising. The newsletter regularly printed materials favorable to the rescue squad and urged association members to join and contribute to the squad and call upon it for services. In fact, it had published an article under the heading “Good Judgment” which favorably reported that the aggrieved property owner’s suit against the rescue squad had been dismissed by the courts. The newsletter rejected the Foundation’s advertisement, stating that “it appears to be more of an editorial than an advertisement.” A follow-up letter from the newsletter invited the property owner to submit a letter to the editor but stipulated that the letter might have to be substantially edited to eliminate certain “negative comments.” In addition, any such submission would have to be of a “constructive nature” which meant that “it [did] not contain negative or pejorative statements or allusions about individuals.” The Foundation sued the association’s board of trustees arguing that it had violated the free speech provisions of the New Jersey Constitution by refusing to accept the advertisement for publication. The lower court rejected the suit noting that the First Amendment does not “protect rights of speech and assembly against interference or impairment by private individuals.” Following appeal by the Foundation, the Appellate Division and the aggrieved property owner agreed that if the newsletter was “the press,” the Foundation could not prevail given the First Amendment protections enjoyed by “the press.” However, the Foundation claimed that the publishers and the editors of the association’s newsletter did not constitute “the press” in the constitutional sense, but rather were “fiduciaries with an obligation to manage a community resource.” For the purpose of the Court’s analysis, the Court assumed that a private homeowner association’s monthly newsletter to its residents “does not involve freedom of the press,” as that term is used in either the First Amendment to the federal Constitution or the New Jersey Constitution. Therefore, the question was whether the newsletter was open to the public or purely private in nature. In that regard, the Court found that although the newsletter accepted advertising from local businesses, such an invitation to the community does not constitute public use in a manner similar to that in which the courts have upheld the right of free speech on private property. Unlike a shopping mall or university, the public was not permitted on any part of the association’s property. To the contrary, it was a gated community with access only by invitation. Consequently, the Court concluded that in the absence of an invitation for public use and considering the type of speech involved in this matter, there was no compulsion to limit the association’s rights as an owner of private property. In addition, the Appellate Division endorsed the lower court’s view that the property owner, not the Foundation, was the association member. As such, the Foundation’s rights vis-a-vis the association’s were far more limited than had the property owner brought the case in her own name.


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