Common Interest Community - Give up your Free Speech

I found this article on free speech interesting. It's a little long, but who would have thought of Free Speech as being endangered in a CIC?
Steve

Editors' Synopsis: Common interest communities ("CICs") include condominiums, gated communities, and cooperatives that are governed by contractually agreed-to covenants, conditions, and restrictions. This Article explains that First Amendment protections of free speech do not likely apply in CICs and expresses concern because of the growing number of Americans preferring CICs over alternative methods of housing. The author concludes that some sort free speech protection in CICs is needed and outlines several solutions to this problem, including a bill of rights in the neighborhood covenant. The Article will be particularly useful to those concerned about the future of speech protections offered under the First Amendment to the increasing number of Americans who choose to live in a CIC.

I. INTRODUCTION
One out of eight Americans now lives in private common-interest communities ("CICs").1 Whether these communities take the form of condominiums, cooperatives, master planned communities, or gated communities, community residents are contractually bound by covenants, conditions, and restrictions ("CC&Rs") on the use of their property. Some of these CC&Rs even restrict First Amendment activities by prohibiting solicitation "imposfing] a ban on posting signs inside or outside a home,... restricting] public assembly on their streets, [and] prohibiting] the distribution of newspapers on their streets."2
These covenants affect CIC residents and non-residents alike. The First Amendment embraces the right of a speaker, and necessarily the right of a listener, to be exposed to the speaker's ideas.3 This right is undermined when, for example, a CIC denies access to a non-resident speaker or allows access to one political candidate or newspaper yet denies access to another.
The loss of speech rights is one of the most severe constitutional deprivations among free people, yet the courts have limited ability to protect private CIC residents and non-residents against it. Because a CIC is a private (not state) actor for federal constitutional purposes, its restrictions on speech are not proscribed by the First Amendment. The two existing tests of state action that would be most applicable to CICs, the "functional equivalent" test and the "judicial enforcement" test, have limited or no applicability to the CIC. In these changing times, where common-interest communities comprise the primary social arrangement for many Americans, the United States Supreme Court could re-envision its state action jurisprudence so that it is applicable to CICs. This is, however, unlikely. Moreover, while it is true that states may grant their residents greater individual protection under state constitutions than under the federal constitution, formerly expansive court interpretations of state speech rights recently have been curtailed.

The most direct solution lies with CICs themselves. CICs could provide a private bill of rights within their CC&Rs. If these private actors do not undertake to protect speech rights, state legislatures always have the power to extend these protections by statute. In the absence of legislative will, however, protection of freedom of speech requires resort to the courts. Courts could invalidate covenants restricting speech as unreasonable or as against public policy. Moreover, many courts have already recognized that even if CICs are not state actors, they function as "minigovernments" in the lives of their residents and neighboring communities. The power to govern is not absolute and unilateral; courts could demand that the consent of the privately governed comes only with a CIC's concomitant commitment to protecting its residents' basic constitutional rights.

This Article explores the problem of reviewing CIC restrictions on speech under current First Amendment jurisprudence and the possibility of private, legislative, and judicial solutions. Part II provides background information on the rise of CICs in the United States. Part III explores the various tests of state action created by the United States Supreme Court as well as free speech protections crafted by state courts. Further, it concludes that these tests and protections have limited or no applicability to CICs. Part IV recommends that CICs import a bill of rights into their CC&Rs; that legislatures pass statutory protections of speech within CICs; or that courts refuse to enforce covenants that are unreasonable as against public policy, or that do not respond to the needs of individuals within a quasi-governmental social arrangement. Part V concludes that CICs have gained such a foothold in American life that some protection of First Amendment rights within and around them is imperative.

II. BACKGROUND

A "common-interest community" is, according to the Restatement (Third) of Property: Servitudes ("the Restatement"):
[A] real-estate development or neighborhood in which individually owned lots or units are burdened by a servitude that imposes an obligation that cannot be avoided by nonuse or withdrawal.
Here's a Link to the rest of the article:

LookSmart's" FindArticles - COVENANTS, CONDITIONS, AND RESTRICTIONS . . . ON FREE SPEECH? FIRST AMENDMENT RIGHTS IN COMMON-INTEREST COMMUNITIES
Real Property, Probate and Trust Journal, Winter 2006, by Suarez, Adrienne Iwamoto