Are open letters protected by freedom of speech? Any court precedents?

Question

I would like to know if there is legal precedent protecting the freedom of speech in distributing an open letter or something similar.

A friend owns a unit in a condominium, and since day one she has been subjected to random fines and hostility from certain neighbors. The condominium is managed by a private company, and the manager finds every opportunity and every excuse to slap fines on her, for all kinds of random things that she didn't do. She tried and fought back by filing complaints with fair housing organizations, but it has had little effect. The management company retracted some fines but still shows express hate and hostility toward her and fines her whenever they can.

My friend has requested a meeting with the HOA board many times in email to the manager, which have all been ignored or denied. Then an extremely discriminatory and hateful thing against her happened. With her access to the board blocked, she had no choice but to write an open letter to other residents, asking for their help, and leave the letters at their doors. A few weeks later the management company found out and slapped her with several other fines, claiming her act of distributing an open letter constituted a violation. (Funny thing is the section they cited in the Condominium Bylaw in regard to the violation doesn't even exist.)

Are open letters protected under the First Amendment to the U.S. Constitution? Are there other specific clauses on the federal and/or state level that are relevant in this case?

Answer 1

Open letters are no more or less protected than any other speech

Freedom of speech in the USA is widely misunderstood: it prevents government from unreasonably restricting your speech. Reasonable restrictions, like not allowing you to tell atomic secrets to the Soviets can be imposed.

The constitution does not prevent governments from enacting an affirmative right to free speech that would also prevent private actors from doing so, only a few states (I think) have done so and the Federal government most certainly has not. Free speech in the USA is in this way, a lot more restrictive than it is in other Western democracies where such affirmative rights do exist. However, those democracies limit speech in different ways.

It does not limit private actors from doing so, nor does it protect you from the consequences (social, legal, reputational) of your speech. For example, many commercial contracts contain non-disparagement and non-disclosure clauses - both restrictions on free speech and both (usually) enforcable. You also can't be prevented from saying racist, bigoted and misogynistic things but people are then free to treat you as a racist, bigoted misogynist. Further, if what you say is defamatory, then the defamed person can sue you for defamation.

So, if your HOA contract says you can't communicate in such a way or can't say certain things then you can't. Providing the term is enforcable which means it must be within the legal authority of the HOA to make such a rule (under the law and through the correct internal processes) and the rule must not be unconscionable.

Notwithstanding, if what your friend said was defamatory then they can be sued and the more people they told, the higher the reputational damage (and consequent damages) will be.

Answer 2

No.

It is an often repeated misconception that "Freedom of Speech" means that no one can restrict speech ever. This is not the case. Let us look at the US Consitution's First Admendment, which contains the "Freedom of Speech" clause:

Congress shall make no law ... abridging the freedom of speech, or of the press...

(Emphasis mine)

As one can see, the First Amendment only restricts government actions. (It also stops other branches of government from restricting speech, because those branches are innately weak with very few powers granted to them by the constitution; the majority of executive or judicial branches powers are granted to them by a law passed by Congress, and Congress cannot give a power to another party that they do not possess).

A Home Owner Association (HOA) is not a government or government agency; it is a private organization (and it is not the same as the "private management company" that manages the condominium, which is probably in the employ of the HOA; which also means that emailing the manager is not emailing the HOA board). Their power stems from a contract, one that your friend signed when they bought the property (one of the conditions agreed to is that a member who sells or gifts their HOA-member property can only do so to someone who also agrees to the contract).

That said, HOAs can be horribly abusive and many states have laws that restrict what kinds of rules and penalties can be applied by an HOA. But that is not a constitutional matter (at either the Federal or State level), nor a question of "Freedom of Speech", but rather a limitation on the kinds of behaviors that can be enforced by contract.