Via Ben Barros I see that a state court in New Jersey has decided to apply New Jersey's State Constitutional guarantee of free speech to a homeowner's association. To the federally-minded observer, this may seem rather odd, since with one or two uncomfortable exceptions, we tend to think that the federal first amendment only affects the government. But states have been holding private shopping malls subject to state free speech guarantees for some time (and somehow evading the federal takings clause in the process). So this is a pretty obvious next step.

So I find the politics more intriguing than the doctrine. Apparently New Jersey's ACLU supports the decision, since presumably the liberty to contract with one's neighbors is of less importance than the liberty to break said contracts in order to put up political signs.

Unnamed "homeowners groups" are also named as supporting the court's ruling. I wonder how this works out in the long run, though. Assume that some homeowners are basically freewheeling and want few rules-- paint your house any color, leave your lawn unmowed, have a garage that faces the street, etc. Others are basically conformist and want to eliminate political signs, demand the lawns be mowed, keep all houses from being puce, and forbid garages that face the street. In a world where homeowner's associations aren't bound by these state constitutional constraints, then all of the conformists cluster together and live in happy communities with mowed lawns, and all the freewheelers live in the rest of town. Presumably the conformists then don't try to rally for more restrictive zoning laws, since they've already privately zoned their neighborhoods the way they want them.

But now suppose instead that the New Jersey ruling stands and private contracts that forbid political signs and puce houses are unconstitutional. The incentive for the conformists to cluster together evaporates-- contracting by neighborhood is mostly useless (except for signalling purposes) if the contracts are unconstitutional. That means that the conformists move back into the freewheeling neighborhoods, and now have an incentive to work to pass local conformist laws. Since the state free speech clause won't reach every conformist zoning ordinance, it's possible that this means less freedom for the free-wheelers and less conformity for the conformers, making everybody worse off.

UPDATE: I flag, but do not endorse, the possibility that homeowner's associations could successfully raise a federal constitutional challenge to the New Jersey constitutional rule under Boy Scouts v. Dale, which said that to some extent the constitutional right to create a group of people who express a message and adhere to a party line entails a constitutional right to punish those who deviate from the line, the laws of New Jersey notwithstanding.