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Free Speech

Court Ordered Disgruntled Retirement Community Residents to Stop "Disparag[ing]" Management, Then Reconsidered


From Fellowship Senior Living, Inc. v. Schenk, decided in 2020 by New Jersey trial court judge Yolanda Ciccone, but just posted on Westlaw a few days ago:

By way of background, this suit arises out of the Schenks' failure to pay for monthly residency and other attendant recurring service charges beginning in June 2017 and continuing through October of this year. On March 18, 2010, the Schenks entered into the Residency Agreement with Fellowship by which Fellowship accepted the Schenks as lifecare residents in the Fellowship Village CCRC and agreed to provide them with, among other things, housing, certain healthcare as needed, and certain meals (the "Services").

Pursuant to the Agreement, the Schenks agreed to pay Fellowship an upfront entrance fee, plus ongoing monthly service fees and other related fees such as for cable television, carport, telephone and internet connectivity. The parties have asserted various claims, counterclaims, and third-party claims which have largely been resolved by the Schenks' tender of $140,501.36 in partial satisfaction of the outstanding sums due as set forth in the Court's November 7, 2019 Order.

The court entered an order that (among other things) "enjoin[ed] the Schenks from future disparagement or derogatory communications against Fellowship, its Officers, Board Members, Employees, or Agents," but later granted the Schenks' motion to reconsider:

Plaintiff argues that the purpose of this limitation is to ensure civility and respectful discourse. Plaintiff explains that over the course of the last nine years, the Schenks, have disseminated several hundred letters to Fellowship's residents, Fellowship's Board of Directors, and various public officials that contained false statements intended to destroy the reputation of Fellowship's Chief Executive Officer, members of its Board of Directors. Additionally, Plaintiff asserts that the court's order is not an unconstitutional impingement on the Schenks speech.

The New Jersey Constitution guarantees a broad affirmative right to free speech: "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press." That guarantee is one of the broadest in the nation, and it affords greater protection than the First Amendment….

New Jersey has repeatedly recognized free speech rights of residents of planned developments which are similarly situated as Fellowship. This court agrees that commenting on management is an integral part of resident life. Being critical of decisions and disseminating information about decisions affecting a resident is critical….

For the foregoing reasons, Defendant's Motion for Reconsideration is GRANTED in part for the permanent injunction on future disparagement….