The first amendment provides protections for the freedom of speech under
certain circumstances. For example, it permits people to speak in public
forums and with regard to matters of public interest. How do these protections,
however, work in a common interest development which is by nature a private
community generally closed to the public, yet a quasi-governmental entity
that has its own “political” problems?
In other words, what is protected speech in a common interest development?
Protected speech is generally speech within and directed to an association
and its members and which regards a topic, issue, or controversy that
is of concern for all members.
A recent case,
Boswell v. Retreat Community Association provides a few examples of what is and what is not speech within an association
that is protected by the First Amendment. Protected speech that concerned
the community included: a flyer informing the community of current problems;
emails sent to all members addressing concerns as to the use of social
media by residents in the community; use of social media by the association
to disseminate information related to protecting association interests;
and communications with members regarding current litigation. The director of the board who is responsible for all the above listed
communications was, however, not always tactful in drafting the community
wide communications and targeted one specific resident, the Boswells.
While the Boswells were a root of the ongoing disputes and controversies,
the controversies did regard the interests of the members as a whole. While legal counsel would likely not recommend the specific language used
by the director in the above listed communications, the court did find
the communications pertained to the community interests. The speech was
The association also engaged in repeated attempts to enforce the governing
documents in a manner that caused delay or was ultimately unnecessary.
 For example, the association had security tow the car of the Boswells’
guest, which had already been authorized to enter; and cited the Boswells
for multiple unfounded violations for architectural modifications, which
were ultimately approved and found to be in accordance with the governing
documents or otherwise delayed in granting approval. These actions did not relate to the common interests of the community
and thus were not protected actions under the First Amendment right to
The court considered these actions to be a reflection of “garden-variety,
private homeowner association disputes.” These actions did not relate to issues relevant to the entire community.
Associations are of course permitted and required to enforce the governing
documents, but as noted by this court, Associations should not do so in
a manner that is groundless, malicious or harassing.
Members and directors alike are permitted to comment on and disseminate
communications related to matters of importance for the whole community
such as community safety and wellbeing. It is, however, recommended such
communications be tactful, reasonable, and general. Actions that are directly
targeted at a homeowner or director that do not otherwise impact or address
a community issue will not be protected. Thus, always uniformly and equally
enforce the governing documents, even against those homeowners that constantly
forget they live in a common interest development. Provide notices of
important matters to the members, but do so in a respectful and generalized
manner. Following these general guidelines will help protect the association
from unnecessary lawsuits and claims from disgruntled homeowners.
Boswell v. Retreat Community Association (2016) 2016 WL 3773403 *3-*6, *10-11 (unpublished).
id. at *2-*3, *9-*10.