Over the past few decades, the number of Americans living in condominiums, master-planned communities, and other types of Common Interest Communities (CICs) has climbed to fifty million. In many of these communities, gates, leafleting bans, or no-solicitation rules prohibit solicitors from speaking or distributing written information to residents. In some, CIC governing boards reserve the exclusive right to distribute political and other literature. Because no-solicitation rules typically are contained in long and complex declarations of conditions, covenants, and restrictions (CC&Rs) that empirical studies have shown many purchasers fail to read or fully understand, or are subsequently adopted by association boards with less than unanimous consent from CIC residents, many residents may not have had actual notice of such rules, or of the boards' power to promulgate them, at the time the residents entered the community.
To the extent that CIC residents have not explicitly or knowingly agreed to no-solicitatin rules, or to board decisions to enclose the community with a gate, such rules may infringe those residents' constitutionally protected right to receive and distribute information. In addition, rules that reserve to the governing association the exclusive right to solicit or distribute literature within the CIC may distort the range of political information residents use to guide their behavior. These two problems-unknowing waiver of First Amendment rights by residents and the potential for information control by homeowners' associations-call out for judicial resolution.
Existing state court decisions upholding gating rules on less than a showing of actual notice to property owners do little to address the problem of residents' unknowing waiver of the right to receive or distribute information. In addition, neither the Federal Constitution nor state constitutions appear likely to provide a basis for solicitor access to CICs under current case law. Therefore, to ensure that CIC residents do not unknowingly forfeit core First Amendment rights when they purchase their property, the author proposes that courts uphold no-solicitation or gating rules only when a CIC can demonstrate that all residents have affirmatively and specifically consented to such rules, or to the CIC association board's authority to pass them at a later date.
Rules that limit solicitation to CICs' governing associations appear less likely to survive review under current law, as shown by the decision in the New Jersey case Guttenberg Taxpayers & Rentpayers Ass'n v. Galaxy Towers Condominium Ass'n. However, the subsequent New Jersey decision in Mulligan Foundation v. Brooks muddies the question of how far solicitors' speech rights extend in gated CICs, or what type of activities by a CIC association will give rise to a solicitor's right of reply. Thus, the author suggests that Guttenberg be clearly extended to prohibit selective enforcement of no-solicitation rules by CIC governing associations even in entirely private CICs, when a plaintiff can show that the rule causes significant politically distorting effects in the surrounding locale.
Finally, this Comment explores the extent to which ideologically based CICs might and should be able to avoid judicial invalidation of no-solicitation rules on the grounds of the constitutional right of expressive association.