Right to Free Speech on Private Property Extended

Judge Martin Greenberg, Presiding Judge of the Superior Court of New Jersey, Chancery Division, in Hudson County, has issued a landmark opinion upholding the right of a citizens' group to distribute campaign literature within a private condominium complex. The court's opinion, in Guttenberg Taxpayers and Rentpayers Association v. Galaxy Towers Condominium Association, sets an important national precedent regarding free speech rights on private residential property. The defendant Association manages the Galaxy Towers Condominium, home to 24 percent of the registered voters in the town of Guttenberg, and 89 percent of the registered voters of district six, one of six election districts in the town. Association rules prohibited outside groups, as well as residents of Galaxy Towers, from distributing flyers within the condominium complex. However, the rules permitted the Association President to distribute Association approved flyers under the doors of Galaxy residents. Prior to most elections, the Association distributed flyers supporting candidates that it had endorsed, and conducted get-out-the-vote drives. As a result, although Association backed candidates have consistently lost by substantial majorities in districts 1-5, they have nevertheless won their respective elections because of the huge majorities they garner in district 6, the district in which Galaxy Towers is located.

Plaintiffs brought suit in 1994, seeking a declaration that the Association's refusal to permit them to distribute flyers within the condominium complex violated the state constitutional guarantee of free speech. The trial court dismissed the complaint, but the Appellate Division reversed in 1995, finding that the important constitutional issues could not be resolved without a full factual record. Judge Greenberg issued his decision after hearing two days of testimony.

Judge Greenberg held that the Association's own political activities amounted to a “dedication of this property from private to political and thus public use” at election time. He therefore found that the Association's refusal to allow leafletting by any other group violated the state constitution, reasoning that “a level playing field requires equal access to this condominium because it has become in essence a political ‘company town,’ in which political access controlled by the Association is the only ‘game in town.’”

ACLU volunteer attorney Frank Askin, a professor in the Constitutional Litigation Clinic at Rutgers Law School, hailed the decision as “the most far-reaching in the country regarding the rights of free speech on private residential property.” He added that the result in this case “reflects the strong commitment of the New Jersey courts to protecting freedom of expression even on private property.” The defendants have indicated that they will appeal.

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