                                                        SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                  Robert Dublirer v. 2000 Linwood Avenue Owners, Inc., et al. (A-125-11) (069154)

Argued September 8, 2014 -- Decided December 3, 2014

RABNER, C.J., writing for a unanimous Court.

            In this appeal, the Court considers the free speech rights of residents in a high-rise cooperative apartment
building.

          Defendant 2000 Linwood Avenue Owners, Inc., owns a high-rise apartment building in Fort Lee known as
Mediterranean Towers South or Med South. Med South is a private cooperative apartment building, commonly
referred to as a “co-op.” In a co-op arrangement, residents buy shares of the building and they occupy their
apartments as leaseholders. Med South, governed by a Board of Directors, is home to about 1000 to 1200 residents
who live in 483 units. The shareholders or residents of a common-interest community like Med South agree to be
bound by the co-op’s by-laws and rules. Plaintiff Robert Dublirer bought shares in Med South and became a
resident in 2002. Dublirer, a regular critic of the building’s Board of Directors, was interested in running for a
Board seat and asked the Board if he could distribute campaign materials in the building.

         The Board, citing a “House Rule” that barred soliciting and distributing any written materials, denied
Dublirer’s request. According to the Board, the rule has two aims: to preserve the residents’ quiet enjoyment of
their apartments and to cut down on litter or “paper pollution.” There are several exceptions to the House Rule. The
Board itself distributes various documents under apartment doors, including written “updates” that criticize the
Board’s opponents. In addition, the Board permits shareholders to knock on doors to solicit proxies for the annual
shareholders’ meeting, but shareholders may not discuss issues or candidates as they do so.

          Dublirer publishes the “Med South Gadfly,” a newsletter that he distributes at pubic shareholder meetings
twice a year. The House Rule bars Dublirer and others from placing a newsletter under a neighbor’s door.
Residents can post items on the bulletin board in the rear lobby of the building and can distribute materials at two
annual board meetings that shareholders attend. They can also send documents to fellow shareholders by regular
mail, at a cost of more than $200 per mailing. In addition, residents may seek the Board’s approval to place signs or
notices in the building, but there do not appear to be any written guidelines to channel the Board’s discretion.

          Dublirer filed a complaint in the Chancery Division on March 25, 2008. He challenged the House Rule and
sought to enjoin its use. The trial court declined to enter a preliminary injunction, without prejudice. Subsequently,
the court denied Med South’s motion to dismiss. Both parties moved for summary judgment. The trial court ruled
in favor of Med South, concluding that the House Rule was not unconstitutional, but denied Med South’s request for
attorney’s fees. Dublirer appealed the free speech issue, and Med South cross-appealed for attorney’s fees. In an
unpublished opinion issued in August 2011, the Appellate Division reversed and struck the House Rule on free
speech grounds. The panel noted, in part, that Dublirer’s expressional activity was “political-like speech” because it
related to the management and governance of the common-interest community. The panel further found that the
restriction was content-based and that it left Dublirer without reasonable alternative means to convey his message.

         The Supreme Court granted Med South’s petition for certification on the free speech and attorney’s fees
issues. The Court also granted the American Civil Liberties Union of New Jersey (ACLU) motion to appear as
amicus curiae.

HELD: The Board of Directors’ House Rule violates the free speech guarantee in New Jersey’s Constitution. 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.


                                                             1
1. The New Jersey Constitution guarantees a broad affirmative right to free speech. It bars the government from
abridging free speech and also protects “against unreasonably restrictive or oppressive conduct on the part of private
entities” in certain circumstances. State v. Schmid, 84 N.J. 535, 560 (1980). Schmid, and later N.J. Coal. Against
War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326 (1994) (Coalition), explored restrictions on free speech
that owners of private property, used by the public, imposed on visitors. In Schmid, the Court articulated a three-
part test to examine the scope of free speech rights on privately owned property. The aim of the test was to
determine when an owner of private property “may be required to permit” others to exercise free speech rights,
“subject to suitable restrictions.” Schmid, supra, 84 N.J. at 563. In Coalition, the Court applied the Schmid test to
regional shopping centers that effectively banned leafleting on political and societal issues. Coalition, supra, 138
N.J. at 344. The Court pointedly added that it decided the case not based on Schmid alone but also “by the general
balancing of expressional rights and private property rights.” Id. at 362. (pp. 9-14)

2. Two recent cases considered different concerns that exist when a private community restricts the free speech
rights of one of its members. See Comm. for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 192 N.J.
344 (2007); Mazdabrook Commons Homeowners’ Ass’n v. Khan, 210 N.J. 482 (2012). In Twin Rivers, the Court
for the first time balanced the rights of fellow property owners in a common-interest community and applied both
the three-part Schmid test and Coalition’s general balancing test. In Mazdabrook, the Court, building on Twin
Rivers, recognized that the Schmid test was not designed “for situations when the person seeking to exercise the
right to free speech is not an outsider but a property owner as well – with both free speech and property rights.”
Mazdabrook, supra, 210 N.J. at 497-98. Both Twin Rivers and Mazdabrook noted that the Schmid/Coalition test
was not a perfect fit for private residential communities. In those cases, courts should focus on “the purpose of the
expressional activity undertaken” in relation to the property’s use and should also consider the “general balancing of
expressional rights and private property rights,” see Coalition, supra, 138 N.J. at 362. To be clear, this approach
applies when free speech restrictions are imposed on residents who enjoy property and free speech rights in a
common-interest community. When an outsider seeks to speak on private property that belongs to another but is
made available to the public, the Schmid/Coalition test will continue to apply. (pp. 14-19)

3. Dublirer’s message was akin to and should be treated as political speech, which is entitled to the highest level of
protection in our society. Dublirer’s proposed speech would interfere only minimally with the interests of the
apartment building and its residents and is not incompatible with the nature of the private property where he and his
neighbors dwell. Speech about governance is not incompatible with the place to be governed. If anything, speech
about matters of public interest, and about the qualifications of people who hold positions of trust, lies at the heart of
our societal values. See Mazdabrook, supra, 210 N.J. at 501. To assess the reasonableness of the Board’s
restriction, the Court considers whether convenient, feasible, and alternative means exist for Dublirer to “engage in
substantially the same expressional activity.” Schmid, supra, 84 N.J. at 563. Barring leaflets about political matters
cannot be considered a minor restriction. The available alternatives are simply not substantially the same as
presenting a leaflet to a neighbor. The Board can adopt reasonable time, place, and manner restrictions to serve the
community’s interest. See Mazdabrook, supra, 210 N.J. at 501. The Board, however, adopted no such limits. In
addition, it does not appear that any written standards exist to guide the Board’s discretion. Moreover, the Board
allows itself to distribute materials throughout the complex, but its critics cannot do so. On balance, the Court finds
that the restriction on Dublirer’s right to disseminate his written materials to neighbors is unreasonable. Dublirer’s
right to promote his candidacy, and to communicate his views about the governance of the community in which he
lives, outweigh the minor interference that neighbors will face from a leaflet under their door. In short, Dublirer’s
right to free speech outweighs the Board’s concerns about the use of the apartment building. The Court therefore
finds that the Board’s House Rule violates the free speech guarantee in New Jersey’s Constitution. (pp. 19-25)

         The judgment of the Appellate Division as to plaintiff’s free speech claim is AFFIRMED.

      JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in
CHIEF JUSTICE RABNER’s opinion. JUDGE CUFF (temporarily assigned) did not participate.




                                                            2
                                      SUPREME COURT OF NEW JERSEY
                                       A-125 September Term 2011
                                                 069154

ROBERT DUBLIRER,

    Plaintiff-Respondent,

         v.

2000 LINWOOD AVENUE OWNERS,
INC., DAVID HOCHSTADT, WAYNE
KOBY, THEODORE TOMASZEWICZ,
ETHEL BLUMENTHAL, SANDY
KOEPPEL, JUDITH ROSENTHAL and
JOSEPH VENTURA,

    Defendants-Appellants.


         Argued September 8, 2014 – Decided December 3, 2014

         On certification to the Superior Court,
         Appellate Division.

         Natalie H. Mantell argued the cause for
         appellants (Gibbons and Wolff & Samson,
         attorneys; George A. Spadoro, of counsel;
         Mr. Spadoro, Kevin McNulty, and Michael R.
         Griffinger, on the briefs).

         Robert Dublirer argued the cause pro se.

         Frank Askin argued the cause for amicus
         curiae American Civil Liberties Union of New
         Jersey (Rutgers Constitutional Litigation
         Clinic, attorneys).


    CHIEF JUSTICE RABNER delivered the opinion of the Court.

    In this appeal, we consider the free speech rights of

residents in a high-rise cooperative apartment building.    A

resident who was a regular critic of the building’s Board of

                                1
Directors was interested in running for a Board seat.    He asked

the Board if he could distribute campaign materials in the

building.    The Board, citing a “House Rule” that barred

soliciting and distributing any written materials, denied the

request.     On prior occasions, though, the Board had distributed

written “updates” under apartment doors throughout the building,

which criticized the Board’s opponents.     The resident filed a

lawsuit and claimed that the House Rule was unconstitutional.

    We now clarify the standard to evaluate restrictions on

free speech in a common-interest community like the building in

this case.    Some of this Court’s earlier case law addressed the

balance between the rights of owners of private property, used

by the public, and the free speech rights of visitors.      See N.J.

Coal. Against War in the Middle East v. J.M.B. Realty Corp., 138

N.J. 326 (1994), cert. denied, 516 U.S. 812, 116 S. Ct. 62, 113

L. Ed. 2d 25 (1995) (Coalition); State v. Schmid, 84 N.J. 535

(1980), appeal dismissed sub nom. Princeton Univ. v. Schmid, 455

U.S. 100, 102 S. Ct. 867, 70 L. Ed. 2d 855 (1982).

    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.     See Mazdabrook

Commons Homeowners’ Ass’n v. Khan, 210 N.J. 482, 498 (2012);

Comm. for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n,

192 N.J. 344, 367 (2007).     In those cases, courts should focus

                                   2
on “the purpose of the expressional activity . . . in relation

to” the property’s use, see Schmid, supra, 84 N.J. at 563, and

conduct a more “general balancing of expressional rights and

private property rights,” Coalition, supra, 138 N.J. at 362.

    Under that approach, we find that the Board’s policy

violates the free speech clause of the State Constitution.      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.   We therefore affirm the judgment of the

Appellate Division.

                                I.

    Defendant 2000 Linwood Avenue Owners, Inc., owns a high-

rise apartment building in Fort Lee known as Mediterranean

Towers South or Med South.   Med South is home to about 1000 to

1200 residents who live in 483 units.

    Med South is a private cooperative apartment building,

commonly referred to as a “co-op.”    In a co-op arrangement,

owners buy shares of a building and get a leasehold interest in

a unit in the building.   See 15B Am. Jur. 2d Condominiums and

Cooperative Apartments § 56 (2014).     Technically, residents do

not own their apartments but occupy them as leaseholders.

    Med South is governed by a Board of Directors.     It has

seven members who run for election each year and serve as

                                 3
volunteers.   The Board has the power to adopt “House Rules” that

apply to the community’s living arrangement; current rules cover

topics like deliveries, parking, the use of common areas, and

requests for repairs.   The shareholders or residents of a

common-interest community like Med South agree to be bound by

the co-op’s by-laws and rules.

    Plaintiff Robert Dublirer bought shares in the co-op and

became a resident in 2002.   He challenges a House Rule, adopted

in 1987 and modified slightly in 1999, about solicitations and

notices.   The House Rule reads as follows:

           SOLICITING / NOTICES

           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, the mail room, in the
           halls, lobby, elevators or on the doorways. A
           bulletin board for residents [sic] use is
           provided in the rear lobby.

According to the Board, the rule has two aims:   to preserve the

residents’ quiet enjoyment of their apartments and to cut down

on litter or “paper pollution.”

    There are several exceptions to the House Rule.    The Board

itself can place written materials under apartment doors.    The

Board also allows the local police department, fire department,

and ambulance corps to knock on residents’ doors and solicit

                                  4
donations during the Christmas holiday season.    In addition, the

Board permits shareholders to knock on doors to solicit proxies

for the annual shareholders’ meeting, but shareholders may not

discuss issues or candidates as they do so.

    The first exception is noteworthy.      The Board distributes

various documents under apartment doors:     bills; notices for

repairs, testing of fire alarms, and the like; a copy of the

annual audit; and letters or “updates” about issues of common

interest.   Multiple examples of the Board’s updates appear in

the record.     The trial court charitably described them, in part,

as “partisan material” that “attack[s]” the Board’s “opponents.”

Indeed, on a number of occasions, the updates touted the Board’s

accomplishments and sharply challenged the credibility,

competence, and motives of its critics.

    For his part, Dublirer publishes the “Med South Gadfly,” a

newsletter that he distributes at public shareholder meetings

twice a year.    In similarly strong language, the newsletters

question whether the Board is financially irresponsible,

incompetent, and possibly corrupt.

    The House Rule bars Dublirer and others from placing a

newsletter under a neighbor’s door.     Residents can post items on

the bulletin board in the rear lobby of the building and can

distribute materials at two annual board meetings that

shareholders attend.    Residents, of course, can also send

                                  5
documents to fellow shareholders by regular mail, at a cost of

more than $200 per mailing.    In addition, residents may seek the

Board’s approval to place signs or notices in the building, but

there do not appear to be any written guidelines to channel the

Board’s discretion.

     On February 21, 2008, Dublirer advised the Board in a

letter that he might run for election to the Board.    He asked

whether the House Rule that barred notices applied to campaign

materials.    The Board’s attorney responded in writing two weeks

later:   “The rule is clear and prohibits distribution of any

written materials without the authorization of the Board of

Directors.”   After a few days, Dublirer wrote the Board and

asked for permission “to distribute written campaign materials

on the premises.”     The Board denied the request.

     Dublirer filed a complaint in the Chancery Division on

March 25, 2008.   He challenged the House Rule against “posting

notices and distributing written campaign materials” and sought

to enjoin its use.1    His complaint named Linwood Avenue Owners,

Inc., and seven individuals who served on its Board of Directors

as defendants.



1  In addition, Dublirer sought relief in connection with an
aspect of the co-op’s election process, which is not part of
this appeal. We also do not consider any recent changes to the
rules to which the parties have referred. We rely on the rules
and practices outlined in the summary judgment record.

                                  6
    After a hearing in April 2008, the trial court declined to

enter a preliminary injunction without prejudice.    Discovery

followed.    Four months later, the court denied defendants’

motion to dismiss.   Both parties moved for summary judgment in

February 2009.

    The trial court ruled in favor of Med South and concluded

that the House Rule was not unconstitutional.   The court

explained that the rule was uniformly employed and that Dublirer

had reasonable alternative methods to communicate.    The trial

court also denied Med South’s request for attorney’s fees

because it found that the clause in the lease on that issue was

ambiguous.

    Dublirer appealed the free speech issue, and Med South

cross-appealed for attorney’s fees.    In an unpublished opinion

issued in August 2011, the Appellate Division reversed.

    The appellate panel relied heavily on Twin Rivers and

struck the House Rule on free speech grounds.   The panel noted

that Dublirer’s expressional activity was “political-like

speech” because it related to the management and governance of

the common-interest community.   The panel found that the

restriction left Dublirer without reasonable alternative means

to convey his message.   The panel also observed that the

restriction was content-based because Med South let charitable

organizations contact residents but denied Dublirer the same

                                 7
opportunity.   Because Med South did not prevail, the Appellate

Division saw no reason to consider the cross-appeal for

attorney’s fees.

    Med South petitioned this Court for certification on the

free speech and attorney’s fees issues.     We granted the

petition.   We also granted the motion of the American Civil

Liberties Union of New Jersey (ACLU) to appear as amicus curiae.

                                II.

    Med South argues that the judgment of the Appellate

Division should be reversed for a number of reasons.     As a

preliminary matter, Med South claims that the State

Constitution’s guarantee of free speech does not apply to a

privately owned residential building.     If the constitutional

protection applies, Med South maintains that prior precedent

requires reversal.   The co-op argues that residents of a private

building have the right to agree to create a home that is a

refuge from litter and politics, and that their right to the

quiet enjoyment of their property outweighs Dublirer’s desire to

place leaflets under residents’ apartment doors.     Med South also

claims that the Appellate Division failed to conduct the

required balancing test under Twin Rivers.     The co-op argues, in

the alternative, that the House Rule is a reasonable time,

place, and manner regulation that affords Dublirer reasonable



                                 8
alternatives.   In the wake of this Court’s ruling in Mazdabrook,

Med South argues that the decision compels reversal as well.

    Dublirer contends that the Appellate Division should be

affirmed because the House Rule violates his free speech rights.

He argues that this Court’s decision in Twin Rivers already

applied the free speech protections in the State Constitution to

a private residential community.       He submits that the Appellate

Division properly applied the tests from Schmid and Coalition in

this case.    Dublirer also highlights the importance of political

speech about the governance of a community to its shareholders

and owners.

    The ACLU, represented by the Rutgers Constitutional

Litigation Clinic, argues that Mazdabrook supports an

affirmance.   Among other arguments, the organization contends

that Dublirer’s constitutional rights outweigh the interests of

Med South and that the House Rule imposes an unfair restriction

on the exercise of free speech.

                                III.

                                  A.

    The New Jersey Constitution guarantees a broad affirmative

right to free speech:    “Every person may freely speak, write and

publish his sentiments on all subjects, being responsible for

the abuse of that right.    No law shall be passed to restrain or

abridge the liberty of speech or of the press.”       N.J. Const.

                                   9
art. I, ¶ 6.   That guarantee is one of the broadest in the

nation, see Mazdabrook, supra, 210 N.J. at 492 (citing Green

Party v. Hartz Mountain Indus., Inc., 164 N.J. 127, 145 (2000)),

and it affords greater protection than the First Amendment, see

Coalition, supra, 138 N.J. at 352.      Federal law requires “state

action” to invoke the First Amendment.      See U.S. Const. amend. I

(“Congress shall make no law . . . abridging the freedom of

speech . . . .”); Twin Rivers, supra, 192 N.J. at 356.      The

State Constitution does not.    Mazdabrook, supra, 210 N.J. at

493.

       As this Court explained in Schmid, the New Jersey

Constitution bars the government from abridging free speech and

also protects “against unreasonably restrictive or oppressive

conduct on the part of private entities” in certain

circumstances.   Schmid, supra, 84 N.J. at 560.    Schmid and

Coalition explored restrictions on free speech that owners of

private property, used by the public, imposed on visitors.        Two

recent cases, Twin Rivers and Mazdabrook, considered different

concerns that exist when a private community restricts the free

speech rights of one of its members.     In that situation, the

speaker is not an outsider but a property owner who enjoys both

property and free speech rights.      Mazdabrook, supra, 210 N.J. at

497-98.   In both settings, the Court examined whether limits on



                                 10
an individual’s right of expression on private property ran

afoul of the Constitution’s guarantee of free speech.

    We turn first to familiar cases that address the free

speech rights of outsiders who seek to speak on private

property.    In Schmid, supra, the Court considered the question

of free speech on the campus of a private university.      Princeton

University regulations in effect at the time required off-campus

groups to get advance permission to hand out materials on school

grounds.    84 N.J. at 538.   Schmid, who was not a student, tried

to distribute political materials on the main campus and was

arrested and convicted for trespass.     Ibid.

    In overturning the conviction, the Court articulated a

three-part test to examine the scope of free speech rights on

privately owned property.     That standard considers

            (1) the nature, purposes, and primary use of
            such private property, generally, its “normal”
            use, (2) the extent and nature of the public’s
            invitation to use that property, and (3) the
            purpose    of   the   expressional    activity
            undertaken upon such property in relation to
            both the private and public use of the
            property.

            [Id. at 563.]

The aim of the test was to determine when an owner of private

property “may be required to permit” others to exercise free

speech rights, “subject to suitable restrictions.”      Ibid.




                                  11
       The Court applied the test and found that (1) the primary

use of the University’s private property was for education, (2)

the University endorsed the “value of an open campus and the

full exposure of the college community to the ‘outside world,’”

and (3) Schmid’s activities were “not incompatible with either

Princeton University’s professed educational goals or the

University’s overall use of its property for educational

purposes.”   Id. at 564-65.

       Even if a visitor can satisfy the standard, the Court noted

that property owners can “fashion reasonable rules to control .

. . expressional rights” of others on their property.        Id. at

563.   To assess the reasonableness of a restriction, courts look

to whether “convenient and feasible alternative means” of free

speech exist, ibid., and whether the owner has reasonable

standards in place to protect the legitimate interests of the

parties, id. at 563, 567.     The Court concluded that the

University violated Schmid’s state constitutional rights because

it lacked a reasonable regulatory scheme.     Id. at 567.

       Fourteen years later, in Coalition, the Court applied the

Schmid test to regional shopping centers that effectively banned

leafleting on political and societal issues.     Coalition, supra,

138 N.J. at 344.   Once again, the dispute pitted owners of

private property -- ten very large shopping centers -- against

individuals who tried to distribute leaflets in the malls in

                                  12
opposition to military intervention in the Persian Gulf.

Coalition, supra, 138 N.J. at 336.       The malls denied access.

Some refused to allow the individuals to leaflet; others imposed

conditions that “made it difficult . . . to reach the public.”

Id. at 337.

    The Court likened the private malls to a public square or

downtown business district.     Id. at 363.   Tracking the factors

in Schmid, the Court found that the purpose of the private

property was not only commercial but also “all-embracing,” in

the tradition of a downtown business district; that the public’s

invitation to use the malls was broad; and that the free speech

in question was “no more discordant” with the uses of the

property than leafleting that had gone on in downtown business

districts for centuries.   Id. at 333-34.     All three factors,

therefore, favored individual free speech rights over the

owners’ property interests.     Id. at 334.

    The Court pointedly added that it decided the case not

based on Schmid alone but also “by the general balancing of

expressional rights and private property rights.”      Id. at 362.

The Schmid test, the Court explained, was “specifically designed

with that balancing in mind.”    Ibid.    Under the newly described

standard, the Court weighed “the private property owners’

interest in controlling and limiting activities on their

property” and the protest group’s free speech interest, “the

                                  13
most substantial in our constitutional scheme.”      Id. at 363.

The balance, once again, favored “expressional rights . . . over

. . . private property interests.”     Id. at 365.    The malls’

owners were free to adopt reasonable time, place, and manner

restrictions to regulate the leafleting and make sure it did not

interfere with the shopping centers’ business.       Id. at 362.

    In Twin Rivers, the Court for the first time balanced the

rights of fellow property owners in a common-interest community.

Twin Rivers involved a large planned development of private

dwellings, which was governed by a homeowners’ association.

Twin Rivers, supra, 192 N.J. at 350.     To avoid clutter and

preserve the aesthetic value of the common areas, the

association adopted a sign policy that allowed residents to post

no more than one sign per lawn and one per window.      Id. at 351.

Unlike in this case, though, the residents could “walk through

the neighborhood, ring the doorbells of their neighbors, and

advance their views.”   Id. at 368.

    A group of residents claimed the sign policy violated their

free speech rights and challenged it in court.       Id. at 351.   The

dispute thus involved homeowners in a private community, not

outsiders, and restrictions on the use of both common areas and

the homeowners’ individual properties.     The Court made note of

this “additional complication” and applied both the three-part

Schmid test and Coalition’s general balancing test.      Id. at 365.

                                14
The Court found that the first two Schmid factors weighed in

favor of the association, a private residential community that

had “not invited the public to use its property.”       Id. at 366.

The third factor, the Court explained, essentially “look[ed] to

the fairness of the restrictions imposed . . . in relation to

plaintiffs’ free speech rights.”       Id. at 366-67.

      Because the restrictions were minor and reasonable, and

“allowed expressional activities to take place,” the Court

concluded that the restrictions satisfied the “Schmid/Coalition

test” and did not violate the State Constitution.       Id. at 367-

68.   The Court stressed that its holding “does not suggest . . .

that residents of a homeowners’ association may never

successfully seek constitutional redress against a governing

association that unreasonably infringes their free speech

rights.”   Id. at 368-69.

      Mazdabrook returned to that question and addressed efforts

by a homeowners’ association to prohibit speech by one of its

members.   The defendant, Wasim Khan, owned a townhouse in a

private common-interest community of 194 townhomes.      Mazdabrook,

supra, 210 N.J. at 487.     He placed signs in the front window and

inside the front door of his townhouse in support of his

candidacy for town council.     Id. at 488.    The homeowners’

association, in turn, ordered Khan to remove the signs because

they violated an association rule banning all residential signs

                                  15
except “For Sale” signs.    Ibid.    That rule was part of the

association’s legitimate effort to maintain “the architectural

design and aesthetic appeal” of the common-interest community of

townhomes.   Id. at 503.

    The Court, building on Twin Rivers, recognized that the

Schmid test was not designed “for situations when the person

seeking to exercise the right to free speech is not an outsider

but a property owner as well –- with both free speech and

property rights.”   Id. at 497-98.       In response, the Court made

two adjustments to the analytical framework in such cases:          it

enhanced the weight of the third Schmid factor and “elevate[d]

the importance of the general balancing test” in Coalition.         Id.

at 498.

    Under both tests, the Court concluded that the near-

complete ban on signs violated the homeowner’s free speech

rights.   Id. at 503.    The policy “hamper[ed] the most basic

right to speak about the political process and [Khan’s] own

candidacy for office.”     Id. at 501.     Yet the Court found “only

minimal interference with the [a]ssociation’s property or common

areas” because people could choose to view or ignore the signs.

Ibid.   The Court concluded that Khan’s right to free speech

outweighed the association’s property interest.       Id. at 504.

    The Court again noted that a homeowners’ association has

the power to adopt reasonable time, place, and manner

                                    16
restrictions.   Id. at 501.   It could place reasonable limits on

the number, location, and size of signs to serve the community’s

aesthetic interests.   Id. at 501-02.    The association’s blanket

ban on signs, however, left Khan without adequate, comparable

alternatives for his message.   Id. at 502.    The Court also

critiqued the board of directors’ “unfettered discretion” to

grant or deny a request to post a sign.     Ibid.   No written

standards existed to guide the board.     Ibid.

    We distill a number of principles from those cases.          When

owners of private property, open to public use, attempt to limit

free speech and assembly rights of others, the Schmid/Coalition

test provides a way to balance both sides’ interests and assess

the reasonableness of the restrictions.    The test was designed

to evaluate a person’s free speech rights on property belonging

to another –- a university campus in Schmid and a shopping mall

in Coalition.

    More recent case law addresses a different situation:         when

the governing board of a common-interest community attempts to

restrict speech by its fellow members.    In that setting, the

speakers are not outsiders; they live in the community and have

both property and free speech rights there.

    Med South contends that Twin Rivers “denied the

applicability” of the State Constitution to a residential,

planned development.   It did not.    The opinion applied the

                                 17
standards outlined in Schmid and Coalition to a private common-

interest community and found no violation of the right to free

speech under the facts of the case.    Twin Rivers, supra, 192

N.J. at 366-68.    Mazdabrook followed the same course and reached

the opposite result on different facts.    Mazdabrook, supra, 210

N.J. at 499-504.

    Both decisions, though, noted that the Schmid/Coalition

test was not a perfect fit for private residential communities.

The first prong of the Schmid test, for example, is largely

subsumed by the issue itself.    In the case of restrictions

imposed by the board of a private common-interest community of

dwellings, the primary nature and use of the property, by

definition, is private.    The second prong –- the extent of the

public’s invitation to use the property -- is even less relevant

because residents do not need an invitation to use property in

their own community.    This appeal underscores both concerns:

Dublirer is a resident and owner in a private co-op; he is not

an outsider who has been invited to the building.

    For those reasons, we now clarify the standard to evaluate

restrictions on the right to free speech and assembly for

residents of a private common-interest community.    In those

instances, courts should focus on “the purpose of the

expressional activity undertaken” in relation to the property’s

use, an inquiry adapted from Schmid, supra, 84 N.J. at 563, and

                                 18
should also consider the “general balancing of expressional

rights and private property rights,” see Coalition, supra, 138

N.J. at 362.   Both standards look to similar factors to

determine “the fairness of the restrictions imposed” with regard

to the residents’ free speech rights.   Twin Rivers, supra, 192

N.J. at 366-67.

    To be clear, this approach applies when free speech

restrictions are imposed on residents who enjoy property and

free speech rights in a common-interest community.   When an

outsider seeks to speak on private property that belongs to

another but is made available to the public, the

Schmid/Coalition test will continue to apply.

                                B.

    We now consider the constitutionality of the House Rule

under the above standard.   We start by examining the purpose of

Dublirer’s speech.

    Dublirer sought to be elected to the Board of Directors of

the co-op.   His message related to the governance of the

residential community in which he lived.   Thus, even though

Dublirer did not run for public office, his message was akin to

and should be treated as political speech, which is entitled to

the highest level of protection in our society.    See Mazdabrook,

supra, 210 N.J. at 499 (“[P]olitical speech . . . lies ‘at the

core’ of our [State’s] constitutional free speech protections.”)

                                19
(citations omitted); State v. Miller, 83 N.J. 402, 411 (1980)

(noting political speech “occupies a preferred position in our

constitutionally-protected interests”); see also Verna v. Links

at Valleybrook Neighborhood Ass’n, Inc., 371 N.J. Super. 77, 98

(App. Div. 2004) (finding that candidate for board of directors

of homeowners’ association “should be deemed a limited purpose

public figure” in defamation context because position is

“essentially indistinguishable from a member of a town’s

governing body”).   Also, as we noted in Mazdabrook, “[f]ree

speech protections assume particular importance in the context

of a person campaigning” for office.     Mazdabrook, supra, 210

N.J. at 499.

    We thus turn to the purpose of the restricted speech in

relation to the use of the property.     See Schmid, supra, 84 N.J.

at 563.   Med South is a private residential community in which

all shareholders agree to be bound by certain rules for the

benefit of the entire community.     See Twin Rivers, supra, 192

N.J. at 367 (noting that “mutual benefit and reciprocal nature”

of rules and regulations are “essential to the fundamental

nature of the communal living arrangement”).    We recognize the

importance of house rules in a co-op building like Med South,

where apartments share walls and ceilings and are connected by

common spaces.



                                20
    Med South’s House Rules, in general, are designed to

promote the residents’ quiet enjoyment of their property.      Med

South represents that the rule in question is also meant to

preserve privacy and minimize litter in the building.     That

said, Dublirer’s proposed speech would interfere only minimally

with the interests of the apartment building and its residents.

Dublirer did not seek approval to use a bullhorn or a

loudspeaker, or to erect a large sign in the lobby.     And

residents could simply ignore or throw away any literature he

placed under their doors.   We are also not persuaded by Med

South’s argument that its notices do not create clutter yet

other notices would.

    In any event, Dublirer’s proposed speech is not

incompatible with the nature of the private property where he

and his neighbors dwell.    Speech about governance is not

incompatible with the place to be governed.    Cf. Coalition,

supra, 138 N.J. at 375 (suggesting that commercial speech could

be incompatible with shopping center if, for example, it

encouraged shoppers to go elsewhere).    If anything, speech about

matters of public interest, and about the qualifications of

people who hold positions of trust, lies at the heart of our

societal values.   See Mazdabrook, supra, 210 N.J. at 501.

    To assess the reasonableness of the Board’s restriction, we

consider whether convenient, feasible, and alternative means

                                 21
exist for Dublirer to “engage in substantially the same

expressional activity.”    Schmid, supra, 84 N.J. at 563.    Med

South notes that Dublirer can post materials on a bulletin board

in the rear lobby of the building and can distribute information

at two annual board meetings.     He can also use the postal system

to send mailings at a cost of more than $200 per mailing.

    Dublirer instead sought permission to speak directly to the

audience he needed to reach:    the voting members of the

community who were his neighbors.      As the Supreme Court noted in

a different setting, “a person who puts up a sign at her

residence often intends to reach neighbors, an audience that

could not be reached nearly as well by other means.”      City of

Ladue v. Gilleo, 512 U.S. 43, 57, 114 S. Ct. 2038, 2045, 129 L.

Ed. 2d 36, 48-49 (1994).   The same is true in this case.    In

addition, Dublirer sought to communicate with fellow co-op

members in the most direct and least expensive way possible --

by placing written campaign materials under the door of each

apartment.   Barring leaflets about political matters cannot be

considered a minor restriction.     The available alternatives are

simply not substantially the same as presenting a leaflet to a

neighbor.

    The Board can adopt reasonable time, place, and manner

restrictions to serve the community’s interest.      See Mazdabrook,

supra, 210 N.J. at 501.    For example, it could reasonably limit

                                  22
the number of written materials that an apartment dweller can

distribute in a given period.    The Board could also reasonably

limit the hours of distribution to prevent early morning or late

evening activities.    Cf. Twin Rivers, supra, 192 N.J. at 368

(upholding restrictions on number and location of political

signs).    Those types of restrictions would promote the quiet

enjoyment of residents of the apartment complex without

unreasonably interfering with free speech rights.

    The Board, though, adopted no such limits.      It instead

banned the distribution of all written materials “anywhere upon

the premises without written authorization of the Board of

Directors,” except for a single bulletin board in the rear

lobby.    It does not appear that any written standards exist to

guide the Board’s discretion.    That situation has the natural

effect of chilling speech.    Once again, we caution that

“[r]easonable restrictions should be clearly written in advance

and made known to the relevant community,” Mazdabrook, supra,

210 N.J. at 502; see also Schmid, supra, 84 N.J. at 567, so that

written criteria can guide a board’s discretion.

    There are certain exceptions to the House Rule.      The most

glaring one depends on who the speaker is:    the Board allows

itself to distribute materials throughout the complex, but its

critics cannot do so.    As the excerpts in the record reveal,

parts of the Board’s updates praise its achievements and harshly

                                 23
criticize its opponents.   But the Board prohibits detractors

from answering in the same manner.

    The Board’s technical argument that it is not bound by the

House Rule because it has not signed a lease misses the mark.

Nothing in our case law permits a group in power to attack its

opponents yet bar them from responding in the same way.     “As a

general rule, laws that by their terms distinguish favored

speech from disfavored speech on the basis of the ideas or views

expressed are content-based.”   State v. DeAngelo, 197 N.J. 478,

487 (2009) (quoting Turner Broad. Sys. v. FCC, 512 U.S. 622,

643, 114 S. Ct. 2445, 2459, 129 L. Ed. 2d 497, 518 (1994)).

Here, the way the Board has implemented the House Rule renders

it content-based.   But even if the Board stopped criticizing its

adversaries in the updates it distributes, it still could not

prevent critics from speaking out about important affairs of

governance in the manner sought here.   As in Mazdabrook, we note

that our decision is not based on a finding of content-based

discrimination.   See Mazdabrook, supra, 210 N.J. at 504-05.

    The Board also permits the local police, firefighters, and

ambulance corps to solicit charitable contributions in the

apartment complex at the same time it bans residents from

soliciting for political purposes.   However noble the impulse,

that practice also limits the right of free expression based on

the speaker and the content of the message.

                                24
    On balance, we find that the restriction on Dublirer’s

right to disseminate his written materials to neighbors is

unreasonable.   Dublirer’s right to promote his candidacy, and to

communicate his views about the governance of the community in

which he lives, outweigh the minor interference that neighbors

will face from a leaflet under their door.   In short, Dublirer’s

right to free speech outweighs the Board’s concerns about the

use of the apartment building.   We therefore find that the

Board’s House Rule violates the free speech guarantee in New

Jersey’s Constitution.

    We do not side with either Dublirer or the Board in their

dispute.   We simply uphold the constitutional right that affords

both the right to speak.

                                 IV.

    In light of our ruling, we do not address two other issues.

Because the Board is not a prevailing party, we do not consider

its request for attorney’s fees under its lease with Dublirer.

See Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 385

(2009); N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158

N.J. 561, 570 (1999).

    We also do not consider whether the House Rule is contrary

to the Planned Real Estate Development Full Disclosure Act,

N.J.S.A. 45:22A-44(b), an argument that only the ACLU has

mentioned.   See State v. O’Driscoll, 215 N.J. 461, 479 (2013)

                                 25
(“[A]s a general rule, an amicus curiae must accept the case

before the court as presented by the parties and cannot raise

issues not raised by the parties.”) (citation omitted);

Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass’n, 91

N.J. 38, 48-49 (1982).

                               V.

    For the reasons set forth above, we affirm the judgment of

the Appellate Division as to Dublirer’s free speech claim.

     JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and
SOLOMON join in CHIEF JUSTICE RABNER’s opinion. JUDGE CUFF
(temporarily assigned) did not participate.




                               26
               SUPREME COURT OF NEW JERSEY

NO.   A-125                                    SEPTEMBER TERM 2011

ON CERTIFICATION TO            Appellate Division, Superior Court




ROBERT DUBLIRER,

      Plaintiff-Respondent,

              v.

2000 LINWOOD AVENUE OWNERS,
INC., DAVID HOCHSTADT, WAYNE
KOBY, THEODORE TOMASZEWICZ,
ETHEL BLUMENTHAL, SANDY
KOEPPEL, JUDITH ROSENTHAL and
JOSEPH VENTURA,

      Defendants-Appellants.




DECIDED              December 3, 2014
               Chief Justice Rabner                           PRESIDING
OPINION BY                Chief Justice Rabner
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


 CHECKLIST                              AFFIRM
 CHIEF JUSTICE RABNER                        X
 JUSTICE LaVECCHIA                           X
 JUSTICE ALBIN                               X
 JUSTICE PATTERSON                           X
 JUSTICE FERNANDEZ-VINA                      X
 JUSTICE SOLOMON                             X
 JUDGE CUFF (t/a)                  ----------------------   -------------------
 TOTALS                                      6




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