A common question asked by our clients is what can be done to stop unit owners from publishing false, negative, or harassing posts about the condominium association, its directors, members, or agents on internet mediums like Facebook or Nextdoor. The reality is that unless such posts constitute threats, defamation, or are criminal in nature, a condominium association has little recourse. Even if the posts due give rise to a cause of action, a court is unlikely to prohibit posts due to first amendment concerns.
For years, community association leaders and lawyers were in agreement that freedom of speech guaranteed in the U.S. Constitution did not apply in a community association context. The basis for that position was that while the constitution prohibits government at all levels – local, state and federal – from infringing on the first amendment rights of citizens, an HOA or condominium is not a governmental entity, so its rules are not subject to the same strict constitutional tests. However, in recent years there has been a legal trend challenging this long held view.
Last month, Florida’s Fifth District Court of Appeal (“5th DCA”) weighed in on the issue in Fox v. Hamptons at Metrowest Condominium Association, Inc., Case No. 5D16-1822 (July 21, 2017). In the case, a condominium association sued a unit owner for harassing, threatening and intimidating other condominium residents. During the trial, the parties entered into a settlement agreement, the terms of which were not disclosed. Thereafter, the association filed a motion to enforce the settlement agreement and for an order holding the unit owner in contempt. Although the opinion does not specify how the agreement was violated, the trial court did hold Fox in contempt.
Of import though, the trial court went one step further and entered an order prohibiting Fox from posting anything about the association, its owners, officers, directors, or vendors on the internet, regardless of the medium. The court also ordered Fox to remove any existing posts. Fox appealed.
On appeal, the 5th DCA overturned the trial court’s order as it pertained to the prohibition against postings on the internet. The Court held that a blanket prohibition of Fox’s online speech constitutes an unconstitutional prior restraint on free speech.
The key to the above decision is a finding that a court injunction constitutes “state action,” even if the party seeking the injunction is not a governmental actor. The decision seems to follow the reasoning in Gerber v. Longboat Harbour North Condominium, Inc., 757 F. Supp. 1339 (M.D. Fla. 1991) where the Court found that court enforcement of covenant prohibiting flags constituted state action, which impermissibly restricted constitutionally protected speech. Notably, the 5th DCA made no mention of Murphree v. Tides Cd’m. at Sweetwater, Case No. 3:13-cv-713-J-34MCR (M.D. Fla. 2014), in which a Florida federal court did not find that enforcement of a condominium’s flag restriction amounted to state action.
Florida courts seem to be following a nationwide trend towards finding impermissible state action when community associations seek court enforcement of restrictions on what otherwise be constitutionally protected speech. It is an issue that is going to be watched closely as there are countless community restrictions that could implicate freedom speech concerns.