Owner rights re noncommercial speech

TerriS6 (California)
Posts: 3,284

Posted:

California code prohibits an association from having CC&Rs, bylaws or operating rules that restrict an owners speech on social media even if it is critical of the association. What if the board controls the social media but doesn't have any written restrictions on speech but in fact deletes all comments critical of the association? Code includes legislative intent. The section is pretty long so I didn't post the whole thing.

CIVIL CODE SECTION 4515. RIGHTS OF ASSEMBLY AND NON-COMMERCIAL SPEECH.
(a) It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 03/24/2024 11:42 AM

What if the board controls the social media but doesn't have any written restrictions on speech but in fact deletes all comments critical of the association?

Civ Code 4515 says this is fine.

Owners unhappy with not being able to post such-and-such to the HOA-run or HOA-owned web site should create their own web site and criticize away (short of defamation, hopefully).

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Not a smart idea for a HOA to have a social media page. A webpage yes. A place to ask questions or submit ideas. Yes. Having social commentary is where ya get in trouble.

Former HOA President

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By ElleN on 03/24/2024 12:58 PM

Posted By TerriS6 on 03/24/2024 11:42 AM

What if the board controls the social media but doesn't have any written restrictions on speech but in fact deletes all comments critical of the association?

Civ Code 4515 says this is fine.

Owners unhappy with not being able to post such-and-such to the HOA-run or HOA-owned web site should create their own web site and criticize away (short of defamation, hopefully).

I would think the censorship might be viewed as unenforceable/prohibited because there is no operating rule enabling the HOA agents to monitor or censor the platform. And if there were such rules, they would be illegal. This is Nextdoor but 99% of the group are HOA members and all the reviewers/leads are spouses of board members. There is no section on the HOA website for comments.

TerriS6 (California)
Posts: 3,284

Posted:

President's wife is chief censor.

CathyA3 (Ohio)
Posts: 6,299

Posted:

If the platform is an official HOA platform, then they can indeed restrict speech. In fact, they have to in order to protect the association from legal liability arising from user posts.

The HOA needs Terms of Service agreements for their platforms that users agree to abide by as a condition for using the platform. The Terms must be strictly enforced to protect the HOA. Enforcement can include monitoring posts, deleting posts that violate the Terms, and removing posting privileges from repeat offenders. This is why lawyers generally recommend not allowing homeowners to post on official HOA sites at all and to avoid social media like the plague - thus avoiding the problems altogether.

As ElleN said, people who want to spew can do so on non-HOA sites.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By CathyA3 on 03/24/2024 1:51 PM
If the platform is an official HOA platform, then they can indeed restrict speech. In fact, they have to in order to protect the association from legal liability arising from user posts.

The HOA needs Terms of Service agreements for their platforms that users agree to abide by as a condition for using the platform. The Terms must be strictly enforced to protect the HOA. Enforcement can include monitoring posts, deleting posts that violate the Terms, and removing posting privileges from repeat offenders. This is why lawyers generally recommend not allowing homeowners to post on official HOA sites at all and to avoid social media like the plague - thus avoiding the problems altogether.

As ElleN said, people who want to spew can do so on non-HOA sites.

Not in California. It's illegal to limit non-commercial speech. Exactly what type of posts are you suggesting it would be ok to remove?

ElleN (Idaho)
Posts: 4,420

Posted:

Ca Civ Code 4515
(d) A member or resident of a common interest development who is prevented by the association or its agents from engaging in any of the activities described in this section may bring a civil or small claims court action to enjoin the enforcement of a governing document, including a bylaw and operating rule, that violates this section. The court may assess a civil penalty of not more than five hundred dollars ($500) for each violation.

Quote:

Posted By TerriS6 on 03/24/2024 1:49 PM
I would think the censorship might be viewed as unenforceable/prohibited because there is no operating rule enabling the HOA agents to monitor or censor the platform. And if there were such rules, they would be illegal. This is Nextdoor but 99% of the group are HOA members and all the reviewers/leads are spouses of board members. There is no section on the HOA website for comments.

After your elaboration and studying 4515, I say: the people doing the NextDoor moderating have the same status as any other non-director owner. These non-director owners can delete the comments of whomever they want, as far as 4515 is concerned.

Playing judge in small claims court (per 4515 (d)), I would want to hear from both sides about --

-- whether the spouses of directors are "agents" of the HOA, meaning the spouses are required to take instruction from their partners (who are also directors). I think spouses cannot be proven to be agents of the HOA.

-- whether the complainant could prove that the spouses took direction from a board majority. The judge notes: 'Spouses of directors are allowed to like and dislike whomever they please, ya know. You cannot insist that a person and his/her spouse think the same way. Nor must one spouse take any order from another spouse.'

-- Here the defendants chime in: "Correct, your honor. The board never, ever voted on this, in secret, by email, by phone, by Zoom or similar, in exec session or in open meeting. Furthermore the board would never so vote, since doing so violates Civ Code 4515." Translation: It's on you to prove that the board had such a vote.

-- But suppose the board did have such a vote. The spouses have zero legal obligation to comply with the vote. Why? Because the spouses (who moderate the NextDoor site) lack what the law calls "agency."

Of course, you could try. A small claims court judge might very well decide this has the appearance of mischief in the HOA's name and tell the moderators to quit deleting your posts. Which opens up a slippery slope but oh well; it is small claims court.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By ElleN on 03/24/2024 12:58 PM

Posted By TerriS6 on 03/24/2024 11:42 AM

What if the board controls the social media but doesn't have any written restrictions on speech but in fact deletes all comments critical of the association?

Civ Code 4515 says this is fine.

Owners unhappy with not being able to post such-and-such to the HOA-run or HOA-owned web site should create their own web site and criticize away (short of defamation, hopefully).

I agree.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By MelissaP1 on 03/24/2024 1:13 PM
Not a smart idea for a HOA to have a social media page. A webpage yes. A place to ask questions or submit ideas. Yes. Having social commentary is where ya get in trouble.

I agree.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By TerriS6 on 03/24/2024 1:54 PM

Posted By CathyA3 on 03/24/2024 1:51 PM
If the platform is an official HOA platform, then they can indeed restrict speech. In fact, they have to in order to protect the association from legal liability arising from user posts.

The HOA needs Terms of Service agreements for their platforms that users agree to abide by as a condition for using the platform. The Terms must be strictly enforced to protect the HOA. Enforcement can include monitoring posts, deleting posts that violate the Terms, and removing posting privileges from repeat offenders. This is why lawyers generally recommend not allowing homeowners to post on official HOA sites at all and to avoid social media like the plague - thus avoiding the problems altogether.

As ElleN said, people who want to spew can do so on non-HOA sites.

Not in California. It's illegal to limit non-commercial speech. Exactly what type of posts are you suggesting it would be ok to remove?

* Accusations of criminal behavior (we see those here, don't we?).

* False accusations in general.

* Copyrighted material that the poster and HOA don't own copyright for. Can include text, audio and video.

* Photos of minors posted without parental permission.

If these appear on HOA-owned sites, the HOA is legally liable for them and can be sued. Terms of Service must be enforced, otherwise the site owner can lose the legal protections that the Terms provide. Of course the easiest way to avoid the problem altogether is to make all HOA-owned resources information only, with no user posting allowed - which is why HOA attorneys generally recommend that.

The problem with "free speech" as a concept is that many people confuse the right to speak with being guaranteed a platform from which to speak. Many also forget that the First Amendment protects people from *government prosecution* for what they say. It in no way guarantees that the speaker is entitled to an audience - the quality of their speech is what gives them an audience. And it in no way protects people from the consequences of their speech. One of those consequences may be getting booted from the platform on which you've been spewing. Too bad, so sad - perhaps consider whether people want to listen to what you have to say?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

We have a Facebook page but not associated with the HOA. We are still developer owned. Once we own it ourselves I believe in going with an official website without the social commentary option.

There is the freedom of creating your own separate page. You are free to attend a meeting to express ideas or opinions. The HOA is not preventing any of that or associated with the social media. Matter of fact I would run a meeting as if it did not exist.

I had to deal with this first hand. It just drags everything down a rabbit hole of ugliness.

Former HOA President

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By CathyA3 on 03/25/2024 5:21 AM

Posted By TerriS6 on 03/24/2024 1:54 PM

Posted By CathyA3 on 03/24/2024 1:51 PM
If the platform is an official HOA platform, then they can indeed restrict speech. In fact, they have to in order to protect the association from legal liability arising from user posts.

The HOA needs Terms of Service agreements for their platforms that users agree to abide by as a condition for using the platform. The Terms must be strictly enforced to protect the HOA. Enforcement can include monitoring posts, deleting posts that violate the Terms, and removing posting privileges from repeat offenders. This is why lawyers generally recommend not allowing homeowners to post on official HOA sites at all and to avoid social media like the plague - thus avoiding the problems altogether.

As ElleN said, people who want to spew can do so on non-HOA sites.

Not in California. It's illegal to limit non-commercial speech. Exactly what type of posts are you suggesting it would be ok to remove?

* Accusations of criminal behavior (we see those here, don't we?).

* False accusations in general.

* Copyrighted material that the poster and HOA don't own copyright for. Can include text, audio and video.

* Photos of minors posted without parental permission.

If these appear on HOA-owned sites, the HOA is legally liable for them and can be sued. Terms of Service must be enforced, otherwise the site owner can lose the legal protections that the Terms provide. Of course the easiest way to avoid the problem altogether is to make all HOA-owned resources information only, with no user posting allowed - which is why HOA attorneys generally recommend that.

The problem with "free speech" as a concept is that many people confuse the right to speak with being guaranteed a platform from which to speak. Many also forget that the First Amendment protects people from *government prosecution* for what they say. It in no way guarantees that the speaker is entitled to an audience - the quality of their speech is what gives them an audience. And it in no way protects people from the consequences of their speech. One of those consequences may be getting booted from the platform on which you've been spewing. Too bad, so sad - perhaps consider whether people want to listen to what you have to say?

That's pretty funny because our board posts photos of children without parental approval. The kind of posting that gets removed here is: some directors' terms end in May. Our annual meeting and election is required by the Declaration to be first week in May, 2 months away but the call for candidates hasn't gone out yet. Election process is minimum 4 months. When will it start?

TerriS6 (California)
Posts: 3,284

Posted:

Also, comments that do not violate the terms of service of Nextdoor are regularly removed by the HOA's agents. When an actual person can be contacted at Nextdoor, those have been restored. But usually, it's not possible to contact a real person.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By ElleN on 03/24/2024 2:49 PM
Ca Civ Code 4515
(d) A member or resident of a common interest development who is prevented by the association or its agents from engaging in any of the activities described in this section may bring a civil or small claims court action to enjoin the enforcement of a governing document, including a bylaw and operating rule, that violates this section. The court may assess a civil penalty of not more than five hundred dollars ($500) for each violation.

Posted By TerriS6 on 03/24/2024 1:49 PM
I would think the censorship might be viewed as unenforceable/prohibited because there is no operating rule enabling the HOA agents to monitor or censor the platform. And if there were such rules, they would be illegal. This is Nextdoor but 99% of the group are HOA members and all the reviewers/leads are spouses of board members. There is no section on the HOA website for comments.

After your elaboration and studying 4515, I say: the people doing the NextDoor moderating have the same status as any other non-director owner. These non-director owners can delete the comments of whomever they want, as far as 4515 is concerned.

Playing judge in small claims court (per 4515 (d)), I would want to hear from both sides about --

-- whether the spouses of directors are "agents" of the HOA, meaning the spouses are required to take instruction from their partners (who are also directors). I think spouses cannot be proven to be agents of the HOA.

-- whether the complainant could prove that the spouses took direction from a board majority. The judge notes: 'Spouses of directors are allowed to like and dislike whomever they please, ya know. You cannot insist that a person and his/her spouse think the same way. Nor must one spouse take any order from another spouse.'

-- Here the defendants chime in: "Correct, your honor. The board never, ever voted on this, in secret, by email, by phone, by Zoom or similar, in exec session or in open meeting. Furthermore the board would never so vote, since doing so violates Civ Code 4515." Translation: It's on you to prove that the board had such a vote.

-- But suppose the board did have such a vote. The spouses have zero legal obligation to comply with the vote. Why? Because the spouses (who moderate the NextDoor site) lack what the law calls "agency."

Of course, you could try. A small claims court judge might very well decide this has the appearance of mischief in the HOA's name and tell the moderators to quit deleting your posts. Which opens up a slippery slope but oh well; it is small claims court.

It would certainly violate the legislative intent.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You know that Am I the A hole posts? Good rule of thumb if you keep getting shut down or censored by the HOA on their site, you are the AHole...

Former HOA President

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By MelissaP1 on 03/25/2024 7:37 AM
You know that Am I the A hole posts? Good rule of thumb if you keep getting shut down or censored by the HOA on their site, you are the AHole...

Not their site. I think I may have gotten the president's wife/recent director and secretary kicked off Nextdoor as a reviewer by sending Nextdoor copies of her own vile posts. Time will tell.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 03/25/2024 6:59 AM
Also, comments that do not violate the terms of service of Nextdoor are regularly removed by the HOA's agents.

... or they are removed by people, who are not legally agents of the HOA, that simply do not like the comments.

Just trying to be complete.

I do not like an owner's chances in small claims court on this issue. Still I put an owner's chances of prevailing at on this issue at greater than zero. Especially if there is a record of NextDoor stepping in and saying the HOA's NextDoor site is not being moderated consistent with the quite reasonable NextDoor TOS.

What is the risk/downside of taking this to Small Claims Court (pursuant to 4515's express provision for small claims court)?

ElleN (Idaho)
Posts: 4,420

Posted:

If this went to Small Claims (again, pursuant to Civ Code 4515), I would certainly note NextDoor's mission:

We strive to be a place that neighbors everywhere come for trusted connections and the exchange of helpful information, goods, and services.

Compare to the legislative intent given in 4515(a):

(a) It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.

I am trying to be as objective as possible here, so as to provide useful information. And I still come down on this side: I think NextDoor's wording dovetails perfectly with 4515(a). This might count for something (and maybe a lot) in small claims court.

Also the Ca Civil Code (outside the Davis-Stirling Act) has something to say about the meaning of "agent." See https://law.justia.com/codes/california/2022/code-civ/division-3/part-4/title-9/chapter-1/article-1/. Then look at Civ Code 2300:

An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.

If I were going to small claims court on this issue, I would pound on my (layperson's) belief that an "ostensible agency" exists under Ca statutes, and it seemscould be genuine, lawful "agency" under the law (so the layperson could reasonably argue, IMO). Granted I also believe a bona fide attorney would probably be able to swat down this argument in five seconds, due to finer points from the case law covering "ostensible agency." But damnit, small claims is for non-lawyers. It is a good thing attorneys are not allowed in Ca small claims court. Take the clown-directors by surprise. Ambush.

I know exactly what //I// would write in my initial filing with small claims, naming the board and their spouses as the defendants, to preserve the ambush.

TerriS6 (California)
Posts: 3,284

Posted:

Very interesting on ostensible agency. Another thought is that Vicarious liability excludes spouses. I am waiting for confirmation from Nextdoor that the person in question is no longer a reviewer based on her own posts violating Nextdoor's policies including promoting violence. In that case, problem solved.

DeanJ
Posts: 1,786

Posted:

So if I use vulgar language or suggest violence the board can’t take down the post?

TerriS6 (California)
Posts: 3,284

Posted:

They are the ones posting such language.