Leaflet Ban May Be unconstitutional According To the NJ Supreme Court

Many co-ops and condominium associations across New Jersey have a leaflet ban that restricts the distribution of flyers, advertisements, and other paraphernalia.

Many co-ops and condominium associations across New Jersey have a leaflet ban that restricts the distribution of flyers, advertisements, and other paraphernalia.

While the goal is to reduce unsolicited leafleting, which can often create clutter in mailrooms, hallways, and other common areas, a lawsuit before the Supreme Court of New Jersey argues that a leaflet ban may be unconstitutional.

Facts of the Case

In Dublirer v. 200 Linwood Avenue Owners, the dispute centers on a house rule imposed on lessees of co-op units in a building known as Mediterranean Towers South in Fort Lee (Med South). 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 is a shareholder of defendant Linwood Avenue Owners, Inc., and a resident of one of the units. He alleges that the co-op’s board of directors violated his rights under Article I, Paragraph 6 of the state constitution by denying his request to distribute literature in support of his candidacy for the board.

According to court documents, the board frequently grants exceptions to the house rule. For instance, it distributes shareholder updates by leaving the literature at or under apartment doors and allows local police and firefighters’ associations solicit donations on the premises.

In one leaflet sent to residents, the board said, “Can you imagine the disaster that would befall upon Med South and all of us if this group of selfish people ever got control of the Med South Board?” In another, the board warned of “mean-spirited residents/shareholders” and “chronic complainers,” according to court documents. Dublirer contends that his request to distribute flyers was summarily denied because he is often critical of the board in his publication, “The Med South Gadfly.”

Issues Before the NJ Supreme Court

The Appellate Division previously ruled in Dublirer’s favor, finding that the house rule is too restrictive. Its decision rested largely on New Jersey Supreme Court’s ruling in Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Association, which addressed challenges to restrictions on “political-like speech” aimed at affecting the manner in which a common interest condominium community was managed by its homeowner’s association. On appeal, the specific question before the court is “does the co-op’s rule prohibiting solicitation and distribution of written information in the building violate article I, paragraph 6 of the New Jersey Constitution?”

While we will have to await the court’s decision, several of the justices appeared skeptical of the bylaw during oral arguments. As the New Jersey Law Journal reports, Justice Barry Albin raised concerns that the board was permitted to disseminate political leaflets while its critics were not. “We’re not talking about just any speech,” he noted. In response, attorneys for defendant Linwood Avenue Owners, Inc. emphasized that residential properties are not generally required to comply with free-speech regulations.

We will be closely monitoring the status of the case and will provide an update when the NJ Supreme Court renders a decision.