First Amendment constitutional protections of free speech apply to governmental restrictions of free speech and do not apply to private organizations. The same is true for state constitutional protections.
Associations can exclude profanity as well as speech that promotes an unlawful end, such as:
- Criminal trespass,
- Expressions that constitutes criminal or severe harassment,
- False advertising,
- Fighting words,
- Promoting actual violence or harm, and
- Terrorist threats.
Boards do not have unrestricted authority to limit speech during the Open Forum portions of their meetings. They are considered public forums for free speech purposes. Members and spouses have a limited right to make statements some might consider defamatory. For example, owners might comment that they think the board or manager is mismanaging the association. A board cannot prohibit such comments. In a 2000 case, the manager of an HOA sued members, alleging they had defamed him by claiming he had mismanaged the association. The court dismissed the case stating that members had a right to voice their opinions about his management abilities since it constituted political speech about a public issue in a public forum. (Damon v. Ocean Hills).
San Diego HOA Management