Could a privately owned gated community bar candidates from door-to-door campaigning?

Plain-English summary

In 2011, the South Carolina Attorney General said a privately owned gated community could prohibit door-to-door campaigning by candidates for local, state, or federal office. The opinion treated a gated community used nondiscriminatorily for private purposes as private property, not a public forum. It said an uninvited candidate did not gain a general free-speech right to enter it merely because the speech concerned an election.

The AG framed its answer as general and did not decide any particular community's facts. It cited decisions explaining that constitutional speech protections ordinarily limit government action, and prior AG opinions saying candidates should obtain permission before distributing campaign materials on privately owned property. The nondiscriminatory private-use condition mattered to its conclusion.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

Could a gated community stop candidates from knocking on doors? A: The AG said yes for a privately owned community used nondiscriminatorily for private purposes.

Did the First Amendment give a candidate a general right to enter private property? A: No. The opinion relied on U.S. Supreme Court cases distinguishing private property from state action and public forums.

Did the opinion decide every access dispute involving a gated community? A: No. It expressly called its comments general and did not resolve a specific association's rules or conduct.

Background and statutory framework

A legislator asked whether gated communities could prohibit candidates from canvassing door to door. The AG balanced political speech claims against private owners' rights by applying federal constitutional decisions and earlier state AG opinions about campaign materials on private property. Its answer depended on the community remaining privately owned and used nondiscriminatorily for private purposes.

Citations and references

The opinion discusses Central Hardware Co. v. National Labor Relations Board and Lloyd Corp., Ltd. v. Tanner; the opinion identifies the private-property premise and declines a fact-specific ruling.

Official title

As to whether a gated community in South Carolina can prohibit door to door campaigning by candidates for local, state or federal elections.

Requester

The Honorable Tom Young, Jr., SC House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-25-2011-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/young-t-jr-os-9257-5-25-11-gated-community-prohibit-door-to-door-campaigning.pdf

Original opinion text

ALAN WILSON
ATTORNEY GENERAL

May25, 2011

The Honorable Torn Young, Jr.
South Carolina House of Representatives, District 81
P.O. Box 651
Aiken, SC 29802
Dear Representative Young:
We are in receipt ofyour letter requesting an opinion ofthis Office as to whether a gated community in South Carolina can prohibit door to door campaigning by candidates for local, state or federal elections. This opinion addresses relevant case law and prior opinions.

LawIAnalysis
The issue raised by your question involves the balancing of constitutional guarantees versus private property owners' rights. Gated communities are privately owned. "Before an owner of private property can be subjected to the commands of the First and Fourteenth Amendments the privately owned property must assume to some significant degree the functional attributes of public property devoted to public use. The First and Fourteenth Amendments are limitations on state action, not an action by the owner of private property used only for private purposes." Central Hardware Co. v. National Labor Relations Board, 407 U.S. 539, 547 (1972). In Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972), the United States Supreme Court stated, "this Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only." Id. at 568. The Court further noted, "it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only." Id. at 567. 1 Numerous courts have ruled that gated communities or condominium associations are not state actors. See, M·, Kalian at Poconos. L.L.C. v. Saw Creek Estates Community Ass'n, Inc., 275 F. Supp.2d 578 (M.D. Pa. 2003); Goldbergv. 400 E. Ohio Condo. Ass'n, 12 F. Supp 2d 820 (N.D. Ill. 1998). Therefore, uninvited political candidates are not entitled to general rights of free speech within such communities. Additionally, in a prior opinion ofthis Office addressing the question of whether a candidate could hand out campaign material in parking lots of shopping centers or in State office buildings, we 1

"[The South Carolina Constitution] affords the same protections as does the Federal constitution." Charleston Joint Venture v. .McPherson, 308 S.C. 145, 151 , 417 S.E.2d 544, 548 n. 7 ( 1992). REMBERT

c. DENNIS BUil.DING • Posr OFPICE Box 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

The Honorable Tom Young, Jr.
Page2

May 25, 2011
concluded that as shopping centers and their parking lots are private property, "a candidate should obtain permission before going on the property and handing out campaign literature.,, Oo. S.C. Att'y Gen. (April 11, 1978). Another prior opinion dealt with whether a campaign poster could be placed on a telephone pole for advertisement purposes. In that opinion, we advised, inter alia, that as the poles are the private property of a telephone utility, the company or co-operative would have the right to prohibit a campaign poster from being placed on its poles. Op. S.C. Att'y Gen. (May 29, 1970). Accordingly, as gated communities are private property, said communities may prohibit door to door campaigning by candidates as long as the property is used nondiscriminatorily for private purposes.2

Conclusion
A gated community is private property, not a public forum; therefore, it may prohibit door to door campaigning by candidates for local, state or federal offices. We should note, however, that our comments herein are general in nature and do not address any specific factual situation. Sincerely,

Assistant Attorney General

REVIEWED AND APPROVED BY:

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RObertD.COOk
Deputy Attorney General

2

Cf. Guttenberg Taxpayers and Rentpayers Ass'n v. Galaxy Towers Condominium Ass' n, 688 A.2d 156 (N.J. 1996) (condominium association that endorsed candidates by distributing campaign flyers to its residents could not deny access to its private property to citizens group that wished to distribute its campaign literature); Laguna Publishing Co. v. Golden Rain Foundation ofLaguna Hills, 182 Cal. Rptr. 813 (Ct. App. 1982) (gated community cannot discriminatorily exclude delivery ofunsolicited, give-away newspaper as it allowed the unsolicited delivery of another free, community type newspaper).