Court Says Landlord Can Curb Leaflets

SAN FRANCISCO —  A divided California Supreme Court decided Thursday that tenant associations have no free speech right to distribute newsletters door-to-door in apartment complexes.

The state high court ruled 4 to 3 that landlords can prohibit unsolicited leafleting by tenants in hallways not accessible to the general public--in effect that private property rights trump free speech.

The ruling opens the door to restrictions on leafleting in gated communities and condominium complexes as well as apartment buildings, lawyers on both sides of the case said. Prohibitions could apply to anyone who wanted to distribute literature.

Justice Janice Rogers Brown, writing the lead opinion, said the state Constitution does not protect free speech on private property unless it is “freely and openly accessible to the public.”

She cautioned, however, that the decision “does not give apartment owners carte blanche to stifle tenant speech.” The court said tenants may still communicate with each other as long as they do not leave unsolicited materials at doorways.

Lawyers for tenants and civil libertarians were disappointed.

“As a result of this ruling, Californians don’t have to travel to China or Cuba if they want to be in a place where they can be thrown in jail for leafleting their neighbors,” said lawyer Robert De Vries, who represented the tenants.

Others saw the decision as an affirmation of property and privacy rights. Glenn P. Zwang, the lawyer for the building owners, called it “a victory for the right of people to be left alone in their homes.”

Case Sharply Divides State Court Justices

Thursday’s decision stemmed from a dispute between the Golden Gateway Center, a retail and residential complex in San Francisco with 1,254 housing units, and a tenants association.

The four high-rise apartment buildings have doormen during the day and 24-hour security patrols that limit access to tenants and their guests, the court observed.

For 11 years, members of the tenants group distributed newsletters to the front doors of their neighbors in the downtown complex.

The owners of the complex sought a court order to prevent the group from leafleting after the tenants sued the owners and distributed literature critical of management. The managers said tenants could still post leaflets on bulletin boards in the laundry rooms.

A San Francisco judge had refused to grant the owners an injunction, a decision that was later overturned on appeal. The dispute will now return to trial court, where the judge will be asked again to grant the injunction against leafleting.

The free speech case sharply divided the high court, with its three most conservative justices generally favoring a broader restriction of rights on private property.

Justices Ming W. Chin and Marvin R. Baxter joined Brown in signing the lead opinion.

Chief Justice Ronald M. George gave the conservatives their fourth vote, but limited his agreement to the facts of the case at hand and argued for a more flexible approach.

He said he feared Brown’s analysis could be used to try to deny tenants the right to hang political posters in their windows and prevent employees and union members from displaying certain bumper stickers in corporate or union parking lots.

“We effectively would remove any state constitutional obstacle to any such action by a landlord, union, or employer,” George wrote.

George said the ruling mainly keeps tenants from leaving unsolicited materials at doorways.

“Tenants remain free to speak with each other in the hallways or elsewhere about anything they wish,” he wrote. “Tenants may knock on the doors of other tenants and speak with them. They may telephone or fax each other, or correspond by letter or e-mail.”

Justice Kathryn Mickle Werdegar, writing for the dissenters, observed that Golden Gateway’s property managers had complained that unsolicited leafleting invaded tenants’ privacy, but she pointed out that unsolicited mail or telephone calls would be at least as intrusive.

She also noted that the tenants association had agreed not to distribute leaflets to residents who said they didn’t want them and to gather all leaflets that were not picked up 24 hours after delivery.

The leafleting prohibition violates the state’s “traditionally cherished” protections of written communications, she wrote. Justice Joyce L. Kennard and Court of Appeal Justice Joan Dempsey Klein, sitting in for the late Justice Stanley Mosk, joined Werdegar.

“The ban goes much further than is necessary to address any legitimate concerns Golden Gateway may have . . . ,” Werdegar said.

In a groundbreaking decision more than 20 years ago, the California Supreme Court ruled that private shopping malls could not stop people from distributing political literature or gathering signatures on their premises. Thursday’s ruling did not overturn that decision, and instead distinguished an apartment building from a shopping mall.

Alan L. Schlosser, legal director of the American Civil Liberties Union of Northern California, who helped argue the case for the tenants, noted that the state high court ruled only on the constitutional issue in the dispute. There are laws on the books that protect tenant rights, and county boards of supervisors can pass ordinances that give tenants the right to leaflet, he said.

“Door-to-door distribution of literature is a very traditional way that grass-roots groups have reached people,” Schlosser said.

He said he was aware of only one tenant who had complained about the leafleting, but Zwang, the landlord’s lawyer, said many tenants had objected to it.

“As long as we are talking about a private area that is not open to the public for public discourse, the landlord can enforce its property rights,” Zwang said.

De Vries, the lawyer for the tenants, observed that the Chief Justice’s opinion stressed that tenants may still receive leaflets if they request them.

But De Vries said there is tenant turnover in the buildings, and it would be difficult for the group to ensure that residents who want the newsletters get them.

Predicting the ruling will affect gated communities and condominium complexes, De Vries said: “If a portion of property adjacent to you is not owned by you, no constitutional protection allows you to leaflet it.”