Friday, May 28, 2021

The ACLU May be Coming for You

 Ellen Shapiro and Anthony Gallino

In a recent MEEB newsletter, Attorney Anthony Gallino discussed a case out of Hampshire County Superior Court, Jess v. Summer Hill Estates Condominium Trust, et. Al.  The case concerned free speech


issues in condominiums relative to the rights of residents to post signs. The case never went to trial and was abandoned after the condominium entered an agreement for judgement. Nevertheless, there is an important lesson to be learned from the case.

We have consistently advised our association clients, whether condominiums, homeowners associations or cooperatives, that in promulgating rules, care should be given to ensure they are (among other things) gender-neutral, age neutral (except for qualified over 55 communities) and content neutral. The Jess case serves as a reminder of the importance of “content neutral” rules when they are viewed through the lens of the First Amendment.  Content neutral rules are those that merely regulate the way in which the speech may occur such as the time, place or manner. A content neutral rule never regulates the subject matter of the speech and does not operate (even unintentionally) to regulate the speech.

We have been notified by a few clients that they have recently received demand letters from the ACLU relative to their current rules. It is no surprise that the rules being scrutinized concern signage.  We are still in the early stages of drafting responses to these letters but we want to alert our clients that it appears the ACLU, having prevailed in the Jess case, is now focusing its attention free speech issues in community associations.

We want to be clear here. We know that these associations which received letters from the ACLU passed these rules with the best of intentions. A clear reading of the rules at issue shows the underlying desire to maintain the architectural integrity of the condominiums’ appearance and were a legitimate exercise of the board’s rule-making power and its obligation to manage the common areas.

Notwithstanding these intentions, the ACLU is challenging the rules on grounds that they violate the constitutional right to free speech. While we cannot comment on these situations now, we can however urge all community association to take another look at their rules and even their governing documents to determine that they are “content neutral.”

A partner in the Braintree firm of Marcus Errico Emmer Brooks, P.C., Ellen Shapiro has more than 25 years of experience in condominium and community association law.  She can be contacted by email at eshapiro@meeb.com.

Anthony Gallino is an associate at Marcus, Errico Emmer Brooks, P.C.  He focuses his practice on real estate, condominium, and contract litigation. Prior to joining the firm, he was part of the Accelerator Practice Clinic at Suffolk University Law School. There he represented indigent tenants in landlord/tenant disputes/eviction cases. Anthony can be emailed at agallino@meeb.com.

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