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Decision Is Important Free Speech Victory for New Jersey Homeowners, Says Professor Frank Askin

June 13, 2012 – 

More than a million New Jersey residents of common-interest communities are now free to post political signs in the windows of their homes as a result of a decision today by the New Jersey Supreme Court.

“Most of the thousands of homeowners associations in New Jersey have rules and regulations forbidding the posting of political signs anywhere on the property. Those rules are now unenforceable as a result of the decision in Mazdabrook Commons Homeowners Association v. Kahn,” according to Professor Frank Askin, director of the Rutgers School of Law–Newark Constitutional Litigation Clinic, who participated in the case as a friend of the court on behalf of the American Civil Liberties Union of New Jersey.

The 5 to 1 decision of the Court held that a total prohibition of political signs in homeowners windows violated the New Jersey Constitution’s free-speech provisions, as well as the State’s public policy.

The 46-page opinion written by Chief Justice Stuart Rabner held that: “residential signs are a venerable, unique and important means of communication that are inexpensive and convenient and connect the message directly to the speaker.”

The Court also rejected the association’s argument that homeowners waived their right to free speech by purchasing a home where the Master Deed and the Declaration of Covenants and Restrictions specifically forbid the posting of any signs without prior approval of the association. The opinion held that the inclusion of such regulations in the governing documents could not constitute “a knowing and intelligent waiver of constitutional rights.”

The Court went even further, holding that “even a clearer complete waiver of “fundamental constitutional rights would not be possible.”

The plaintiff in the case, Wassim Kahn, was a candidate for Parsippany Town Council, and posted two signs in support of his candidacy – one inside his front window and one inside his front door.  He removed the signs when the Mazdabrook Board threatened to fine him for violation of the sign regulation.

The Rutgers Constitutional Litigation Clinic represented the ACLU of New Jersey as amicus in the case, and the ACLU brief was prepared by students in the Clinic under the supervision of Professor Askin, who was allowed by the Court to participate in the oral argument.