Imperium in imperio: Free speech wins by a technicality

About a month ago I noticed a newspaper article about a local family fighting its neighborhood Homeowners' Association over the right to display political signs on their property. The Jasinskis of Queensbury faced a lien on their property because the Hudson Pointe Homeowners Association acted on the assumption that its ban on signage extended to campaign signs for candidates. The Jasinskis suspected an arbitrary if not partisan agenda, noting that certain kinds of signs (e.g. "For Sale") were allowed while theirs weren't. Last week a Warren County judge ruled in their favor, though his opinion was of more limited scope than free-speech advocates had hoped for. As reported here, the judge ruled that Hudson Pointe didn't specifically include political signs among the kinds banned by association rules. Because the rule was too vague, he voided the lien and the fines levied on the Jasinskis, but the obvious implication was that had Hudson Pointe explicitly banned political signs, the Jasinskis would have been SOL.

The Jasinskis and their civil-libertarian supporters hoped for a broader ruling against any sort of ban on political signage, but the judge didn't oblige them. Had Hudson Pointe written its rules properly, its ban on political signs would not be unconstitutional, the judge opined, because the Constitution (in a reporter's words) " protects against government intrusion on free-speech rights, but the HOA isn't a government." To be more accurate, an HOA is a government of a sort, or else it wouldn't be issuing rules or punishing infractions, but it's not the government, and in the judge's reading the Constitution only regulates the government: federal, state, etc. At first glance, the only section of the Constitution that limits the private exercise of power by one person or group over another is the Thirteenth Amendment, which bans slavery. Otherwise, what civil rights are private quasi-governments like homeowners' associations bound to respect? It'd be nice to have an answer for future use if one takes seriously the possibility of an increasingly privatized world. It might be utopia for some, but so long as the company town or the company store remain "private" in the eyes of the law, taking over public-sector functions without claiming public authority, how many people really would be more free in such a future? The common American assumption is that the main threat to their freedom is the state, and the American agenda often is to constrain state power, if not the power of other states as well. Those assumptions hint at a blind spot in the American view of things that may not seem serious when the question is whether you can put a sign on your lawn, but might keep us from seeing something worse coming.