Quote:
Originally Posted by mdb23
We are still confusing issues here. The indivudual entered into a private agreeement with the HOA that allows the HOA to pursue legal action against him if he violates the codes and stupulations that he agreed to.
I have a legal right to burn a flag.....which means that the govt cannot come after me (legally) if I do so. However, if I have signed a contract with a HOA stating that I will not burn anything on my property, and then burn a flag in my front yard, the HOA can still take legal action for violation of the agreement. That's not a first amendment violation.
It's no different than accepting a private sector job where there are codes of conduct that I must stipulate to in order to get hired....I may have freedom of speech, but if I choose to hand out pro life literature to every customer that comes through my KMart checkout lane, my employer can still fire can fire me...... Well, I have a right to burn a flag.....but if I enter into a binding agreement that says I won't burn anything on my property, then I can still get sued by the HOA....
In both cases, the govt isn;t taking any action against me...a private entity is based upon authority that I gave them by entering into a binding agreement...
This may suck, but it isn;t a violation of freedom of speech.
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I agree in terms of the law. But reality is that a lawyer works emotion as well as the law. And regardless of how the law favors the HOA, this lawsuit will shoot them in the foot if played properly.
Finally, the First Amendment (and the rest of the Bill of Rights) protects our rights from the government... but those rights exist regardless. The concept on which the USA was founded is that those rights are inalienable... so, although the First Amendment protects us from the government infringing on them, the basic concept of inalienable rights means that
no one has the right to infringe on those rights (as long as they don't infringe on others).
I think a good lawyer could make the HOA wish they had never denied that application.