An interesting federal case came to my attention that involved public access to public roads. In this Puerto Rican case, Watchtower Bible [Jehovah Witnesses] v. Municipality of Santa of Isabel, CIV. NO. 04-1452 (2013), the First Circuit overturned the District Court’s decision and held that the Jehovah Witnesses’ free speech rights were violated. This case was the remand from the First Circuit in Watchtower Bible v. Sagardia de Jesus, 634 F.3d 3 (2011)).
Shades of Marsh v. Alabama (326 U.S. 501), that 1946 federal case where Jehovah Witnesses attempted to distribute literature in a company town with public access. WOW! (Cited in Sagardia de Jesus). Marsh led to the US Supreme Court’s “public functions” test to determine if private organizations were state actors. (Today, there are other tests for HOA state action that nobody seems willing to pursue).
The municipality operated a Public Housing Agency, similar to the “projects” build in the 1950s in Chicago and New York City. Where there are unmanned gates (“unmanned urbanizations”), entry to the public road is based upon acceptance by a resident who answers a buzzer or gets a call from the visitor. However, Puerto Rico has explicit laws that require all roads to be public roads open to all the people, with the usual police powers exceptions for the health and safety of the residents. Like criminals don’t get access, etc.
In dealing with the remand, to tighten the rules in accordance with the laws, the court noted that,
If access to public streets can be denied to them, then access can be denied to anyone. For example . . . the press could also be prevented from entering a gated community to cover the reactions of residents to a court ruling, as that in this case.
The court made the following general statement that has direct application to private government HOA regimes (my emphasis),
Even today, many nations of the world inadequately protect, or worse, fail to protect, these rights that we often take for granted. This case demonstrates this Nation’s deep history of protecting civil liberties. Any antipathy by individual residents of gated communities towards Jehovah’s Witnesses or members of any other religious faith should yield to common sense and respect for the Rule of Law, product of the United States and Puerto Rico Constitutions.
HOA Constitutional Government 