My 15 year old son often argues that I have no authority or control over his right to say what he pleases. His justification is that he has First Amendment rights under the United States Constitution. He’s correct that he has First Amendment rights, but he’s wrong that the First Amendment applies in my home. The rights granted under the First Amendment prohibit government interference with free speech, the right to assemble, and the right to religious freedom. But, you see, I am not the government and therefore not bound by the First Amendment.
For the most part, community associations are not bound by the First Amendment, either. CC&Rs and Bylaws often restrict owners’ rights to display signs, even political signs. In a well-known Pennsylvania case a unit owner wanted to place a “for sale” sign on the window of their condominium. The CC&Rs contained a “no sign” provision which the Association attempted to enforce. The owner argued that the Association had no right to enforce the prohibition under the First Amendment. The Court held that the condominium is private property and that the Association’s enforcement of its CC&Rs was not state or governmental action. Thus, the First Amendment did not apply.
A few years ago the New Jersey courts decided perhaps the most significant case involving community associations and free speech. Owners at a condominium posted flyers in the common areas, which the Association quickly removed. The owners argued that the Association had no right to remove the flyers under the First Amendment. They also argued that the Association acted more as a municipality, since the community contained approximately 1 square mile of townhouses, single family homes, condominiums and commercial shopping and was home to about 10,000 residents. That court ruled that "the minor restrictions on plaintiffs' expressional activities are not unreasonable or oppressive...," and that the association's rules didn't violate the freedom of speech and assembly clauses of the state constitution.
Some forms of expression are legislatively allowed regardless of the restrictions in the governing documents. For example, the Freedom to Display the American Flag Act was adopted in 2005. This federal legislation prohibits homeowner associations from banning the installation or display of the American flag. The Washington Homeowners Association statute incorporates the federal law:
(1) The governing documents may not prohibit the outdoor display of the flag of the United States by an owner or resident on the owner's or resident's property if the flag is displayed in a manner consistent with federal flag display law, 4 U.S.C. Sec. 1 et seq. The governing documents may include reasonable rules and regulations, consistent with 4 U.S.C. Sec. 1 et seq., regarding the placement and manner of display of the flag of the United States. (RCW 64.38.030)
In addition, some states mandate that associations grant freedom of expression regardless of the contents of the governing documents. Arizona passed a law that community associations may not prohibit the indoor or outdoor display of a political sign within 45 days of an election and seven days after an election. However, associations may regulate the size and number of political signs as long as their rules aren't more restrictive than city or county ordinances.
Community associations should strike a balance between the restrictions governing the community and owner’s rights to speech and expression. Here are some things to consider when adopting amendments or rules which may impact freedom of speech or expression:
- Consult state statutes. State law may already provide the maximum restrictions allowed. If the state regulates political signs in community associations, the association's rules must be consistent with state law.
- Review city and county ordinances. If state statutes or court decisions don't allow association regulations to be more restrictive than those imposed by local government officials, the board members must follow the local regulations.
- Don't prohibit political signs without exception. If the association's regulations are reasonable, content neutral and consistently enforced, the board is more likely to avoid expensive litigation and preserve the delicate balance between the community's aesthetic values and individuals' free-speech rights.
- Remind residents of sign rules prior to election season or when they become effective. Use the association newspaper, website, a letter or a community meeting to remind residents of the rules at least 15 to 30 days before signs may first be displayed.
- Don't forcibly remove signs. This should be done only as a last resort.
- Approach enforcement reasonably and in a way that encourages compliance rather than acrimony or litigation. Don't feel compelled to measure the size of everyone's yard signs. If a sign obviously violates the size restrictions, then proceed with enforcement.