Rule 42 is a tenant regulation that the Seattle Housing Authority proposed in the fall of 2005. It would prohibit residents of SHA’s high-rise buildings, such as Belltown’s Bell Tower or Denny Terrace on Capitol Hill, from putting signs, posters, photographs, or notes on the outside of doors to their apartment.

At issue is the legal distinction between public and nonpublic space and who has a right to control it. The housing authority argues that apartment entry doors are part of common hallways it owns and maintains. As such, it should be treated like a private landlord in being able to stop what SHA calls the dormitory clutter of artwork and political messaging that often offends other tenants, creating management problems for SHA.

In December 2005, the Resident Action Council, which represents the 5,300 tenants in SHA’s 28 high-rises, sued the agency, arguing that front doors of apartments are privately controlled by the tenants renting them. Because of that, RAC attorney Eric Dunn of the Northwest Justice Project argues tenants have a right to use them for free expression.

Last April, a superior court judge agreed, ordering the housing authority — which is an arm of the U.S. Department of Housing and Urban Development, not the city of Seattle — to remove Rule 42 from the House Rules it distributes to tenants.

SHA is challenging that ruling in arguments that an appeals court will hear March 12.

In its appeal filings, SHA lead attorney James Fearn argues that previous cases cited by RAC as First Amendment precedents don’t apply to the front of SHA tenant doors because building hallways are “common to all” and can be regulated in the same way that the city outlawed postering on utility poles — an ordinance, Fearn notes, that was upheld in court.

SHA also disputes a ruling in a Missouri case where a judge threw out a city ordinance prohibiting private homeowners from putting signs in their yards. The decision, Fearn writes, doesn’t cover public property, nor does a Washington case cited by RAC in which a judge ruled that a private tenant, not the landlord, controlled a stairway leading to the tenant’s unit.

Fearn’s rebuttal is that a stairway isn’t a door.

“It is only because the housing authority is a public entity, and its property is public property, that its residents are able to claim First Amendment protections,” Fearn writes in SHA court filings. But, like private landlords, the agency must protect its property and the interest of all its residents.

“SHA has the same kinds of management issues as for-profit landlords,” says SHA spokesperson Virginia Felton. “The function is not fundamentally different.”

RAC attorney Eric Dunn believes it is. “The [SHA argument] that amuses me,” he says, is that “even though they’re the government, they should be treated like a private landlord, which is like what?”

Regardless of other arguments, Dunn says his trump card is the U.S. Supreme Court’s decision in Harris v. McCray. In that case, he says, the court ruled that “the government can’t require you to give up the exercise of your constitutional rights in exchange for receiving a government benefit.”

“In this situation,” he says, it means “the government can’t force you to give up the right to engage in free speech for the benefit of living in public housing.”

“I think there’s plenty of case law that says the government can’t do that,” Dunn adds. “This case has so many ways that we could win.”