Fanning the Flames: The Freedom Project Blog



By Shawn Healy
The title of Evan McKenzie's tome on the undemocratic tendencies of the governing bodies of common interest developments, namely condo associations. Professor McKenzie illuminates the fact that many common interest developments assume the functional role of small cities, with private streets, sidewalks, parks, even schools. Conflict occurs when civil liberties are tested in such "privatopias."

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.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at