A new decision of the Illinois Appellate Court holds, for the first time, that the First Amendment applies to Illinois condominium associations, even though a condominium association is not a federal, state or municipal government.

​Condominium associations sometimes have owners who are verbally abusive toward employees, management personnel and others. In an effort to maintain civility and avoid liability for allowing a hostile work environment to exist, many associations have enacted rules that specifically prohibit verbal intimidation and abuse in order to discourage such behavior and, if necessary, to fine owners who persist in such behavior. However, a new opinion from the Illinois Appellate Court (Boucher v. 111 East Chestnut Condominium Association) has declared it an unlawful infringement of First Amendment freedom of speech rights for a condominium board to fine an owner for criticizing association personnel in an abusive manner.

The Boucher case involved a unit owner, Boucher, with a long history of verbally abusing association employees, management office staff and board members. Boucher’s offensive comments to association employees had resulted in the filing of two sexual harassment claims against the association with the Illinois Department of Human Rights and the federal Equal Employment Opportunity Commission. Within a span of just five days, Boucher yelled profanities at association employees on two separate occasions. Relying on a provision of the association’s Declaration that prohibits unit owners from engaging in offensive and obnoxious behavior in the common elements, the association issued violation notices to Boucher, who demanded a hearing. After a hearing, the board found that Boucher had violated the Declaration, and fined him $500.

Boucher paid the fine, but then filed a lawsuit against the association and its board members alleging, among many other things, that the defendants violated Section 18.4(h) of the Illinois Condominium Property Act (“ICPA”) by fining him for expressing negative opinions concerning the association’s employees and management personnel. (ICPA Section 18.4(h) provides that an association cannot pass a rule that impairs freedom of speech or any other rights guaranteed by the First Amendment.) In response, the association and its board members filed a motion to dismiss, arguing that the First Amendment only applies to governmental action, and that a condominium association is not a government. The trial judge agreed and dismissed Boucher’s claim, but Boucher filed an appeal.

On appeal, the Illinois Appellate Court reversed the trial judge’s decision, holding for the first time that the First Amendment applies to Illinois condominium associations, even though a condominium association is not a federal, state or municipal government. On this basis, an Illinois condominium association and its board members can be held liable for restricting a unit owner’s First Amendment freedom of speech rights. According to the Court’s opinion, “a plaintiff states a cause of action against an association for violation of his right to free speech by alleging that the association precluded him from expressing his political opinion or that the association penalized him for expressing his opinions.” Pursuant to this reasoning, an Illinois condominium association and its board members can also be held liable for enacting or enforcing rules that infringe on other rights protected by the First Amendment, such as freedom of assembly and freedom of religion.

The Illinois Supreme Court has been asked to hear an appeal of this decision, but at least for now, the Boucher case is binding on all condominium associations in First District of the Appellate Court, including the Chicago metropolitan area.

Needless to say, this court ruling poses major headaches for Illinois condominium associations, especially in associations with “difficult” residents. However, there are limits to freedom of speech. False statements of fact are not protected by the First Amendment, and neither are “fighting words” (that is, use of a personally abusive word or phrase which, when addressed to the ordinary citizen, is likely to provoke a violent reaction). Therefore, a condominium board should still be able to levy lawful fines on a unit owner who makes false statements about association employees or management personnel, or who directs “fighting words” to them.

Pending further action from the courts or from the Illinois legislature, associations should refrain from adopting new rules that would prohibit verbal abuse of association personnel, and refrain from seeking to fine owners for being critical of association representatives – even when those criticisms are made in a needlessly harsh, insulting, rude or disrespectful manner – unless the statements are demonstrably false or involve “fighting words.”

The Boucher decision also imposed new requirements for condominium rule violation hearings, and those issues are addressed in a separate Saul Ewing Arnstein & Lehr Condominium and Community Association Practice Alert.

Being subject to First Amendment obligations presents Illinois condominium associations with complex and difficult challenges, and the guidance of attorneys experienced in representing condominium associations is recommended.