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Fort Lee co-op board violated resident’s political free-speech rights in leafletting case, NJ Supreme Court rules

Photo Credit: Cliffview Pilot File Photo

YOU READ IT HERE FIRST: The board of directors of a Fort Lee co-op violated the political-speech rights of a resident running for election to the board when it prohibited him from distributing leaflets about his candidacy, the New Jersey Supreme Court unanimously ruled today.

Robert Dublirer was trying to deliver a message that was “akin to and should be treated as political speech, which is entitled to the highest level of protection in our society,” the high court found.

“Dublirer’s right to free speech [under the state Constitution] outweighs the Board’s concerns about the use of the apartment building,” the justices wrote.

Dublirer, a 67-year-old former New York prosecutor who has leased one of 483 units at Mediterranean Towers South since 2002, sued the board after it rejected without discussion his request for permission to distribute the leaflets to the co-op’s 1,000 or so residents.

Dublirer, who has criticized the board in his publication “The Med South Gadfly,” said he was told that complex bylaws prohibit door-to-door solicitation to protect residents’ privacy and reduce clutter (“paper pollution”) — even though the board distributes its own literature.

“Can you imagine the disaster that would befall upon Med South and all of us if this group of selfish people ever got control of the Med South Board?” one of the board-distributed leaflets said.

Another warned of “mean-spirited residents/shareholders” and “chronic complainers,” court records show.

A state judge in Hackensack dismissed Dublirer’s complaint, Dublirer v. 200 Linwood Avenue Owners, but the Appellate Division reversed his ruling.

The Supreme Court upheld the appeals judges’ decision.

“This case is about governance and speech related to governance,” Dublirer told the state’s highest court earlier this month. “The speech I sought to employ related to my qualifications for office, how my vision and qualifications compare to the incumbent board.

“I am not an outsider,” Dublirer said. “I am a person who has a right to be there and question the governance of the building. The board engages precisely in the kind of speech that it denies to everyone else.”

“Is there any wonder that the president of the board was president for 25 years?” he added. “In most elections, the incumbent board is unopposed.”

A board attorney, meanwhile, argued that it has the right to restrict speech because the co-op is private property and should be able to communicate with its residents however it sees fit.

The New Jersey Constitution “bars the government from abridging free speech and also protects ‘against unreasonably restrictive or oppressive conduct on the part of private entities’ in certain circumstances,” the Supremes wrote in today’s unanimous 24-page opinion.

They pointed to previous rulings involving “situations when the person seeking to exercise the right to free speech is not an outsider but a property owner as well – with both free speech and property rights.”

“Barring leaflets about political matters cannot be considered a minor restriction,” the ruling says. “The available alternatives are simply not substantially the same as presenting a leaflet to a neighbor. The Board can adopt reasonable time, place, and manner restrictions to serve the community’s interest…. The Board, however, adopted no such limits.

“In addition, it does not appear that any written standards exist to guide the Board’s discretion.

“Moreover, the Board allows itself to distribute materials throughout the complex, but its critics cannot do so,” the high court ruled.

“On balance, the Court finds that the restriction on Dublirer’s right to disseminate his written materials to neighbors is unreasonable,” the justices added. “Dublirer’s
right to promote his candidacy, and to communicate his views about the governance of the community in which he lives, outweigh the minor interference that neighbors will face from a leaflet under their door.

“Speech about governance is not incompatible with the place to be governed. If anything, speech about matters of public interest, and about the qualifications of people who hold positions of trust, lies at the heart of our societal values.”

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