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June 23, 1998


The opinion of the court was delivered by: ASPEN


 MARVIN E. ASPEN, Chief Judge:

 A less creative plaintiff, after observing that Illinois's Condominium Property Act forbids condominium boards of managers from adopting any rule which "impair[s] any rights guaranteed by the First Amendment to the Constitution" and provides that any such rule is "void as against public policy and [is] ineffective," 765 ILCS 605/18.4, 18.4(h) (West), would have brought suit under that law in state court after her condominium's board enacted a rule which barred all "canvassing or distributing of materials to individual units" other than those materials related to political campaigning. Compl. P 15; see Board of Directors of 175 E. Delaware Place Homeowners Ass'n v. Hinojosa, 287 Ill. App. 3d 886, 679 N.E.2d 407, 409, 223 Ill. Dec. 222 (Ill. App. Ct. 1997) (noting the filing of this type of suit). She would have prevailed if she showed that the regulation impaired a First Amendment right or even that the regulation was simply unreasonable -- and to that end it would have been the board's burden to prove that the canvassing or distribution was "'antagonistic to the legitimate objectives of the condominium association.'" Apple II Condominium Ass'n v. Worth Bank & Trust Co., 277 Ill. App. 3d 345, 659 N.E.2d 93, 98, 213 Ill. Dec. 463 (Ill. App. Ct. 1995) (quoting Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637, 640 (Fla. Dist. Ct. App. 1981)); see also RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 6.13 (1998). Alternatively she could have used that law to defend against any attempt to collect on the lien which the condominium association placed on her unit as a penalty for her leafletting activities. See Hinojosa, 679 N.E.2d at 409; 765 ILCS 605/9(g)(1) (West); Compl. PP 20, 21.

 Unfortunately for her, Marcy Goldberg (or maybe her attorney) has a more active imagination; she sued her condominium association and its board of directors under 28 U.S.C. § 1983 for a violation of the First Amendment itself. This leveraged her into federal court (and brought with it the tantalizing possibility of attorneys fees, see 42 U.S.C. § 1988(b); Compl. P H), but she now faces a motion to dismiss on the ground that the board did not act "under color of" state law, as § 1983 requires.

 Goldberg takes two stabs at the problem. She first asks for an extension of Shelley v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836 (1948), where the Supreme Court held that a state court's enforcement of a racially restrictive covenant constituted sufficient action by the state to satisfy the Fourteenth Amendment's state action requirement. Since § 1983's "under color of" law requirement is "'just as broad as'" the Fourteenth Amendment's state action requirement, Hafer v. Melo, 502 U.S. 21, 28, 116 L. Ed. 2d 301, 112 S. Ct. 358 (1991) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982)), Goldberg reasons that her First Amendment rights were violated when her condominium association enacted its rule, see Def.'s Resp. at 7.

 Her principal support for this argument is the decision in Gerber v. Longboat Harbour N. Condominium, Inc., 724 F. Supp. 884 (M.D. Fla. 1989), vacated in part on other grounds by 757 F. Supp. 1339 (M.D. Fla. 1991) (motion to reconsider), where the court held unconstitutional a condominium rule prohibiting residents from flying the American flag except on specified holidays. *fn1" We are not persuaded by this opinion, which, after citing Shelley, reasoned as follows:

Applying the principles of Shelley to the situation sub judice, this Court finds that judicial enforcement of private agreements contained in a declaration of private agreements contained in a declaration of condominium constitute[s] state action and bring[s] the heretofore private conduct within the ken of the Fourteenth Amendment. . . .
It cannot be gainsaid that judicial enforcement of a racially restrictive covenant constitutes state action. It offends logic to suppose that equal protection of the law could be guaranteed by the very government whose judicial arm seeks to deny it. To suggest that judicial enforcement of private covenants abridging protected speech is not state action is, mutatis mutandis, equally repugnant to reason. Defendant's actions in denying Plaintiff his Constitutionally protected right to display the American Flag were illegal ab initio, and this Court so holds.

 724 F. Supp. at 886. The court concluded that "the ratio decidendi in this case is indistinguishable from that of the Shelley Court" and that "to conclude otherwise violates a syntactically analytic truth." Id. at 887.

 The problem is that there is no indication (in either of the two opinions in the case) that the condominium association actually secured any sort of judgment or order from a state court. See generally Leon Friedman, New Developments in Civil Rights Litigation and Trends in Section 1983 Actions, 554 PLI/LIT 7, 25 (1996) (citing Gerber). In Shelley itself, of course, the petitioners were subject to state court orders divesting them of title in the properties at issue. Shelley, 334 U.S. at 6, 7. This was crucial, as the Court's holding was premised on the idea that the "participation of the State consists in the enforcement of the restrictions . . . ." Id. at 13 (emphasis added). Reinforcing the point, the Supreme Court stated that "but for the active intervention of the state courts . . . petitioners would have been free to occupy the properties . . . ." Id. at 19 (emphasis added). It is difficult to understand, then, how the court in Gerber found state action before the state acted.

 In fact, old-fashioned patriotism, rather than old-fashioned legal reasoning, is the source of the Gerber opinion's persuasive force. The plaintiff, we are told, was an Air Force veteran who wished to "express[] his deep love and respect for America." Gerber, 724 F. Supp. at 885. The court did not hide its sympathy for his predicament:

It is a curious ordering of values, and a questionable jurisprudence, which would forbid a man from displaying the symbol of his country while staunchly defending the rights of others to deface, desecrate, and destroy that same symbol. Had Mr. Gerber chosen to burn his flag rather than display it in a dignified manner, public spirited lawyers would have appeared to help him protect his constitutional right to burn Old Glory. But to proudly display the United States Flag Mr. Gerber was forced to commence a federal lawsuit at his own expense.
. . . The flag is a unique national symbol: thirteen stripes, alternating red and white; fifty white stars on a blue field, representing the union of fifty states into one nation. It is, like the flags of other nations, the physical embodiment of sovereignty. But as America is unique among nations, so is our flag unique among flags. The first three words of our Constitution, "We the People," represent the profound difference between our government structure and the traditional view of governmental power. The government of the United States derives its powers from the people, in whom such power is inherent. It is the people of the United States who are the true sovereigns, and it is the sovereignty of the people that is represented by the white stars in a blue field on our nation's flag.
This Court will not countenance such treading upon the rights of those who would respectfully display the flag ...

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