Thanks to my interaction with Professor McKenzie, I have been following a related free speech case in New Jersey involving restrictions on political yard signs where he has been called as an expert witness. The case has evolved over the past couple of years, and just yesterday the State Supreme Court ruled in favor of the Twin Rivers Homeowner's Association. In applying a "reasonableness" standard toward the regulation of speech in the affected community of apartments, condos, single-family homes, and businesses, the state high court relegated political speech otherwise afforded "strict scrutiny" (more explanation below) the lowest level of free speech protection as established by U.S. Supreme Court precedent.
The reasonableness test has been historically applied to nonpublic forums like privately owned shopping malls or company towns. It requires that the affected party show evidence of arbitrary, capricious, or patently discriminatory rules and regulations. By reasonable, the Court means there is a sound connection between the rule and the behavior regulated. The stipulations need not be the best alternative, only reasonable in application.
Political speech is typically afforded the highest level of constitutional scrutiny, namely strict scrutiny. This means that any restriction on speech is presumed unconstitutional. It is up to the government to establish its constitutionality through proving a compelling reason for its use and also that there is no lesser form of restriction that would accomplish the same goal.
The crux here lies in the fact that the Twin Rivers development is without doubt a private enterprise, yet its streets, sidewalks, and other common areas assume city-like qualities. Moreover, individual condos and homes are the functional equivalent of those bordering city streets and sidewalks. Should these individuals suffer restrictions on political speech that would be blatantly unconstitutional on the outside?
True, individuals, couples, and families make independent choices about where to live absent coercion. If they are truly concerned about restrictions on their First Amendment rights, they are free to locate in places where they can live without encumbrances. However, common interest developments are growing exponentially across the country, especially in the Western United States. Nearly 1/6 of Americans now reside in CID's, and if the Twin Rivers ruling is read and replicated elsewhere, they live without full First Amendment rights.