HOA Rule Concerning Freedom of Speech in Georgia, USA

Question

Our Georgia HOA recently changed this rule to the following:

"A Resident or guest shall not discipline, correct, or abuse any of the Management Staff, other residents, guests, directors, officers, contractors/vendors, or committee persons, verbally or otherwise. This applies not only to the Amenity Complex but within the entire XX community."

The two changes were to add contractors/vendors and to expand the rule to be imposed on the entire community, not just to the Amenities property. This is a community of single family homes owned by the residents. Residents can be fined for not complying.

Can this rule actually be enforced by the HOA on other properties in the community that are not owned by the Association? Could I be fined for breaking this rule if I am standing in my own front yard?

Am I also correct that the HOA CAN enforce this rule inside the boundaries of the Association owned property (clubhouse, surrounding grounds, etc.)?

Answer 1

The HOA is not the government!

The first thing you need to get out of your head is that the First Amendment would apply at all: The First Amendment only protects you from the government. But The HOA is a Homeowner's Association, a private group that you and the other Homeowners are members of. That means the First Amendment does not apply to the HOA.

It's a contract.

The HOA rules basically are a contract: to use the amenities and infrastructure of the HOA and live within its bounds, you adhere to the rules of the HOA.

Contracts can limit your freedom of speech. You might sign a contract with your employer that limits you from disparaging them - and that clause is enforceable. You can bind yourself to a code of conduct in the HOA, and that is enforceable.

The clause, as written, seems to ban anyone (not otherwise empowered) from trying to enforce HOA rules, or committing a crime (abuse). It's pretty simple, and they can enforce it.

Answer 2

Can this rule actually be enforced by the HOA on other properties in the community that are not owned by the Association?

Yes.

Could I be fined for breaking this rule if I am standing in my own front yard?

Yes.

Am I also correct that the HOA CAN enforce this rule inside the boundaries of the Association owned property (clubhouse, surrounding grounds, etc.)?

Yes.

The HOA is a private membership organization, it is not required to respect First Amendment rights which protect you against government deprivations of free speech.

Note also that just because it can do this doesn't mean that it should. It may very well be an unwise rule. In particular, in Georgia, where race is an ever present issue, the HOA should also consider the risk that it will face potential federal and state discrimination law civil liability if the rule is enforced in a racially discriminatory matter in practice.

Answer 3

Being an association has limited effect

I infer that from the name, "home owners' association". Do members of the association have votes?

If so, that opens a very special can of worms: political speech.

This wouldn't be the first group of association managers to try to use its powers to suppress political speech about themselves. They usually use an innocuous seeming rule such as banning "abuse". But then, they interpret it against political speech.

And how state law treats this varies. They usually succeed up until a point, but in one of the more memorable reads I've had of an appeals court ruling, the court said "political speech is the single most protected form of free speech" and kicked it back down for heavy sanctions against the association.

But whether this political protection helps you depends on the state, and particularly the speech.

• If you call the executive director a prostitute, you're probably out of luck.
• But if you claim the HOA management's rule against electric vehicles is bad policy and violates state law, the wind will be at your back.