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Full Opinion
delivered the opinion of the Court.
The question in this appeal is whether a homeowners’ association can prohibit residents from posting political signs in the windows of their own homes.
Defendant Wasim Khan lives in a planned townhouse community that is managed by plaintiff Mazdabrook Commons, a homeowners’ association. In 2005, Khan ran for Parsippany Town Council and posted two signs in support of his candidacy at his private residence—one inside the window of his townhouse and another inside the door. Mazdabrook notified Khan that the signs violated the association’s rules and ordered their removal. Mazda-brook’s regulations banned all residential signs except “For Sale” signs.
This Court has previously examined when a homeowners’ association can restrict the right of its members to post signs. In Committee For A Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 192 N.J. 344, 929 A.2d 1060 (2007), the Court upheld minor restrictions that permitted homeowners to place signs in their windows and in flower beds adjacent to their homes. By contrast, Mazdabrook has barred virtually all expressional activity. Its near-complete ban on signs forbids homeowners from posting any political signs on their own property.
Political speech in support of one’s candidacy for public office is fundamental to a democratic society. It is protected by the State Constitution, which affirmatively guarantees the right of free speech to all citizens. Balancing the minimal interference with Mazdabrook’s private property interest against Khan’s free speech right to post political signs on his own property, we conclude that the sign policy in question violates the free speech clause of the State Constitution. We therefore affirm the judgment of the Appellate Division.
Mazdabrook Commons is a planned community of 194 town-homes in Parsippany-Troy Hills. The development is enclosed, but not gated, and has no public through-streets. The Mazda-brook Commons Homeowner’s Association, Inc. (“Mazdabrook” or “Association”) is a non-profit corporation that manages the development. Each owner of a townhouse in the development is a member of the Association, which elects a Board of Trustees.
The development is a common-interest, interdependent community in which individual owners agree to certain common rules and restrictions for the benefit of the entire group. Some of the regulations are intended to preserve the architectural design of the buildings and maintain a uniform aesthetic appearance.
Unit owners receive various closing documents in connection with the purchase of a townhome: a Public Offering Statement (POS) filed by Mazdabrook Developers in 2000; a Declaration of Covenants and Restrictions (Declaration); and the Association’s Rules and Regulations. The POS informs purchasers that they must comply with the restrictions in the Declaration and any Rules and Regulations adopted by the Association. Among other things, all three documents restrict the posting of signs.
The POS states that residential units “are of unique architectural design” and summarizes various restrictions that apply to all unit owners. For example, they may not hang laundry outside, install unshielded floodlights, use exterior loudspeakers, place trailers or boats in common areas, or maintain a dog pen outside. Relevant to this case, section 12(k) of the POS states that
[n]o signs are permitted on the exterior or interior of any Unit, except for one “For Sale” sign on the interior of a Unit. Further, the Sponsor shall have the right to place “For Sale” or “For Rent” signs on unsold or unoccupied Units.
The Declaration is attached to the POS. It details a number of restrictions that are binding on the entire development. With regard to signs, prospective owners are not barred from placing signs in their units but are instructed they may only post signs with the prior written consent of the Board:
*488 No signs (other than those of Sponsor) ... shall be erected or installed in or upon any Building, the Common Facilities or any part thereof without the prior written consent of the Board.
No written guidelines exist to direct the Board’s discretion in this area.
The Rules and Regulations, attached to the Declaration, echo its language:
No signs of any kind will be placed in or on windows, doors, terraces, facades or other exterior surfaces of the buildings or Common Facilities except as provided in the Declaration of Covenants and Restrictions.
At a bench trial in this matter, the Association’s president testified that “[tjhere are no signs permitted, other than a For Sale sign that can only be placed in a window. The reason being, it’s hard enough overseeing the whole development, so we have to not allow any speech as opposed to picking and choosing which sign is okay____”
Khan bought a home in Mazdabrook in 2008. He received and reviewed the POS, Declaration, and Rules and Regulations when he purchased his unit. In 2005, he ran for Parsippany Town Council. He posted two signs in support of his candidacy—one inside his front window and the other inside his front door—so that they would be visible through the glass. Khan testified that he assumed the signs were permissible because he had noticed a political sign supporting his adversaries on the development’s model property.
A few days after posting the signs, Khan received a letter from the Board, which stated that a political sign was displayed in his window and ordered its immediate removal. The letter cited to the prohibition on signs in the Declaration and assessed a $25 fine for violating that policy. Khan complied and removed the signs.
We briefly review a second dispute between Khan and Mazda-brook, which is not central to this appeal. In 2006, the Board requested that Khan remove a rose vine growing in front of his home. The Board’s request triggered a lengthy dispute between Khan and the Board about the presence and height of the rose vine. The dispute continued until November 2008, when the
A bench trial was held on June 16 and June 17, 2009, and the vast majority of the testimony related to the dispute over Khan’s rose vine. The trial court issued its decision the following day. With regard to the rose vine, the court found in favor of the Association and ordered Khan to pay fines, missed maintenance fees, and late fees. The court reduced the interest rate for the unpaid maintenance fee from twenty to ten percent, and entered an-overall judgment of $3,500 for the Association.
As to Khan’s counterclaims, the trial court found no free speech violation and dismissed both counts. The court relied on Twin Rivers and applied the three-factor test outlined in State v. Schmid, 84 N.J. 535, 563, 423 A.2d 615 (1980), appeal dismissed sub nom. Princeton Univ. v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982), to the Association’s sign restriction. The court found that (1) the primary use of the property was residential, (2) the Association had not invited the public to use the property, and (3) fairness considerations weighed in favor of the restriction and against Khan’s expressional activity.
Khan appealed, and the Association cross-appealed on the amount of the fine and the court’s use of a reduced interest rate. In an unpublished opinion, a divided panel of the Appellate Division reversed in part. All three members of the panel vacated the award related to the rose vine. They also reversed the reduction of the interest charged because the twenty-percent rate constituted a reasonable liquidated damages provision under the Association’s by-laws in lieu of an assessment of counsel fees.
The panel then addressed Khan’s free speech claims. Like the trial court, all three members resolved the first two prongs of the Schmid test in favor of the Association. The panel divided in its
The dissenting judge disagreed with the majority’s analysis of Schmid’s third prong. The dissent concluded that residents of Mazdabrook agree to a variety of restrictions to preserve the unique architectural design of the buildings and maintain a uniform aesthetic look throughout the development. The dissent compared the facts of this case to Twin Rivers—which did not find a constitutional violation—and reasoned that the mutual benefit enjoyed by residents of Mazdabrook outweighed Khan’s expressional rights. In addition, the dissent did not believe that State v. DeAngelo, 197 N.J. 478, 963 A.2d 1200 (2009), which invalidated a content-based municipal ordinance, applied to this case. Instead, the dissent considered the sign restriction a servitude that ran with land but did not unreasonably burden Khan’s freedom of speech. Finally, the dissent found that defendant had waived his constitutional right to post signs in his windows.
The Association appealed as of right, under Rule 2:2-l(a)(2), limited to the issues raised by the dissent. We granted the motions of the American Civil Liberties Union of New Jersey (ACLU) and the Community Associations Institute-New Jersey Chapter (CAI) to participate as amicus curiae.
After oral argument, we requested additional briefing from the parties to address the first prong in Schmid, supra,—which requires consideration of the “nature, purposes, and primary use of ... private property,” 84 N.J. at 563, 423 A.2d 615—from the perspective of Khan’s ownership interest in his townhouse.
II.
Plaintiff Mazdabrook argues that a private residential community does not violate free speech rights by enforcing a rule agreed to
Mazdabrook presents a number of arguments including the following: that the facts of this case compare favorably to Twin Rivers, which upheld similar restrictions; that the restrictions fairly reflect the concerns of a common-interest community in architectural and aesthetic uniformity; that the limits imposed are reasonable time, place, and manner restrictions that afford Khan alternative avenues of expression; and that Khan could have sought permission from the Board to post the signs.
Defendant Khan urges this Court to uphold the Appellate Division. He contends that a restriction prohibiting all but “For Sale” signs is not content-neutral and fails the Schmid test. He maintains that the challenged restriction cannot prevail for several reasons: it prevents homeowners from exercising their expres-sional rights on their own property and not just in common areas; no comparable, alternative channels of communication exist; and the Association’s interest in architectural uniformity is minor when weighed against a homeowner’s right to free speech. Defendant adds that the restriction cannot be considered a valid covenant because it is unreasonable. Finally, he argues that he did not knowingly waive his right to free speech.
The ACLU, represented by the Constitutional Litigation Clinic of Rutgers Law School, argues that the Association’s sign regulations unconstitutionally restrict free speech. A restriction banning an entire category of political speech, the ACLU contends, is unreasonable and therefore unconstitutional. The ACLU notes that lawn signs are an important and inexpensive means of communication, that Khan had no equally effective, alternative way to reach his neighbors, and that it is his right to choose not only his message but the manner in which it is conveyed. Among other arguments, the ACLU also submits that the covenant of good faith and fair dealing implied in Khan’s contract with the
CAI urges this Court to uphold the sign restriction. The group raises various arguments: that the Appellate Division misapplied the Schmid test; that the test’s third prong should not be reached if a property is primarily residential and the public is not invited onto it; that the majority’s decision would require the Association to allow public access for competing political messages and would eliminate a private property owner’s right to restrict speech on his property; and that the right of association members to express themselves stems not from the State Constitution but from statutory and contract provisions, as well as the fiduciary duty owed by an association’s trustees to its members. Finally, CAI maintains that an association must have the authority to regulate the exteri- or appearance of its buildings.
III.
New Jersey’s Constitution guarantees individuals a broad, affirmative right to free speech. Under the Constitution, “[ejvery person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press.” N.J. Const, art. 1,1f 6.
That provision has been described as “broader than practically all others in the nation.” Green Party v. Hartz Mountain Indus., Inc., 164 N.J. 127, 145, 752 A.2d 315 (2000). The affirmative guarantee in the first sentence offers greater protection than the First Amendment, which bars the government from restraining speech. See U.S. Const, amend. I (“Congress shall make no law ... abridging the freedom of speech____”); see also Prune-Yard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741, 752 (1980) (noting states may adopt more expansive protections “than those conferred by the Federal Constitution” (citation omitted)).
As a result, this Court has previously found that a private university and privately owned shopping malls assumed a constitutional obligation to protect free expression on their premises. Id. at 569, 423 A.2d 615; Coalition, supra, 138 N.J. at 362, 365, 650 A.2d 757. At the core of those cases, the Court balanced the legitimate interests of private property owners—to be free “from untoward interference with or confiscatory restrictions upon” the reasonable use of their property—and the individual right to free speech and assembly. Schmid, supra, 84 N.J. at 560-61, 423 A.2d 615 (citations omitted). The Court considered the reasonableness of restrictions imposed on speech and assembly in light of those competing interests.
The Court refined an analytical approach to this area in a series of important cases. The seminal Schmid case addressed free speech rights on a private college campus. In Schmid, the defendant entered the main campus of Princeton University to distribute political materials relating to a Newark mayoral cam
Schmid outlined a three-part test to determine the parameters of free speech rights on privately owned property. Under the test, courts must consider
(1) the nature, purposes, and primary use of such private property, generally, its “normal” use, (2) the extent and nature of the public’s invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property.
Ud. at 563, 423 A.2d 615.]
The test was designed “to ascertain whether in a given case owners of private property may be required to permit, subject to suitable restrictions, the reasonable exercise by individuals of the constitutional freedoms of speech and assembly.” Ibid.
Applying the test to Schmid, the Court found that (1) the primary use of the University campus was for education, (2) “a public presence within Princeton University [was] entirely consonant with the University’s expressed educational mission,” and (3) Schmid’s expressional activity was in keeping with the public and private uses of the campus. Id. at 564-65,423 A.2d 615.
The Court acknowledged that owners of private property could “fashion reasonable rules to control” expressional rights on their property. Id. at 563, 423 A.2d 615. The reasonableness of those rules would depend on whether “convenient and feasible alternative means” to free expression existed, ibid., and whether the challenged restriction was subject to standards that protected the legitimate interests of the parties, id. at 567, 423 A.2d 615. Because the University at the time had adopted no standards to regulate when to grant or withhold permission to off-campus groups, or what type of time, place, or manner restrictions would
More than a decade later, the Court applied Schmid to require regional shopping centers to permit leafletting on political and societal issues, subject to reasonable restrictions. See Coalition, supra, 138 N.J. at 344, 650 A.2d 757. The plaintiffs in Coalition sought to distribute leaflets that opposed United States military intervention in the Persian Gulf; they planned to do so at ten very large shopping centers after the Iraqi invasion of Kuwait. Id. at 335-36, 650 A.2d 757. Most of the malls denied access entirely; others required the leafletters to obtain liability insurance—which they could not get—before allowing them to use community booths at the mall. Id. at 337, 650 A.2d 757.
The Court applied the Schmid test and found that all three factors favored plaintiffs’ expressional rights over defendants’ private property interests: (1) the “normal use” of the malls was “all-embracing ... encompassing practically all aspects of a downtown business district”; (2) the public’s invitation to use the property was broad; and (3) the free speech sought was “wholly consonant” with the use of the malls. Id. at 333-34, 365, 650 A.2d 757.
The Court relied not only on Schmid’s three-prong test but also decided the case on the basis of a “general balancing of expressional rights and private property rights.” Id. at 362, 650 A.2d 757. It explained that Schmid’s standard and elements “are specifically designed with that balancing in mind.” Ibid. Balancing the private property owners’ interest in controlling activities on their property against the limited and important free speech right sought, the Court found that plaintiffs’ expressional rights prevailed. Id. at 363, 365, 650 A.2d 757.
The Court expanded on the nature of the general balancing test in Green Party, when it struck certain restrictions that applied to individuals seeking to distribute political fliers and gather signatures for a candidate for public office in a shopping mall. “The
As in Schmid, the Court in Coalition and Green Party recognized that shopping centers could adopt reasonable time, place, and manner restrictions to regulate leafletting and ensure that it did not interfere with the malls’ business. Coalition, supra, 138 N.J. at 362, 377, 650 A.2d 757; see also Green Party, supra, 164 N.J. at 149-50, 752 A.2d 315.
Both sides rely heavily on this Court’s more recent decision in Twin Rivers, which addressed facts similar to the ones now before us: the free speech rights of homeowners who live in a large, planned, residential community managed by a homeowners’ association. A group of residents there had formed a committee to try to change how the Twin Rivers association governed the development. Twin Rivers, supra, 192 N.J. at 351, 929 A.2d 1060. The group filed a complaint against the association that sought to invalidate its sign policy. Ibid. That policy, which existed to “avoid the clutter of signs” and “preserve the aesthetic value of the common areas,” limited residents to posting one sign in any window of their home and a second sign in a flower bed no further than three feet from the residence. Ibid. Less relevant to this case, the complaint also challenged rules about access to the community room and the association’s monthly newspaper. Id. at 352-53, 929 A.2d 1060.
The Twin Rivers Court applied the tests outlined in Schmid and Coalition. As to the first Schmid factor, the Court emphasized that Twin Rivers was a common-interest community and that the primary use of the property was residential and served private purposes. Id. at 365-66, 929 A.2d 1060. Second, even though Twin Rivers was accessible to public traffic, the association “ha[d] not invited the public to use its property.” Id. at 366, 929 A.2d 1060. Both factors thus weighed in favor of the association’s private property rights. See ibid.
The Court’s opinion foreshadowed two important points. First, although it applied the familiar framework from Schmid and Coalition, it noted that the “ease presented] an additional complication” because it involved restrictions on both association property and homeowner properties. Id. at 365, 650 A.2d 757. “[A]t least in regard to the signs on the property of the homeowners,” the Court underscored, “it is the private homeowner’s property and not that of the Association that is impacted.” Id. at 367, 650 A.2d 757.
Second, the Court in Twin Rivers stressed that the association in fact permitted speech “with some minor restrictions.” Ibid. “Our holding does not suggest, however, that residents of a homeowners’ association may never successfully seek constitutional redress against a governing association that unreasonably infringes their free speech rights.” Id. at 368-69, 929 A.2d 1060.
IV.
A.
The case law thus tells us how to assess restrictions that an owner of private property, used by the public, may impose on a visitor’s free speech rights: by applying Schmid’s three-prong test as well as the more general balancing test outlined in