Freedom in Associations: Exercising Free-Speech Rights in an HOA

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Freedom of speech is perhaps the most cherished and most important protection provided by the United States Constitution.  The delegates to the Constitutional Convention viewed citizens’ right to speak their minds without fear of government retribution as so important that “freedom of speech” is enshrined in the very First Amendment of the Constitution.  Indeed, many Convention delegates refused to ratify the Constitution absent an unqualified guaranty that the new government would be forbidden from “abridging the freedom of speech.”

Most state constitutions also protect freedom of speech.  And, if there was any doubt, the 14th Amendment’s “incorporation doctrine” unequivocally prohibits state and local governments from taking actions or enacting legislation which would violate rights guaranteed by the U.S. Constitution, including freedom of speech.   Individual states can, though, enact protections greater than what is provided under federal law.  PruneYard Shopping Center v. Robins, 447 U.S. 74, 81 (1980) (recognizing California’s “sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.”).

As recent controversies have amply publicized, though, there is an important limitation on the First Amendment.  Specifically, it only applies to the government, and not to private parties.  This is because “the fundamental nature of a constitution is to govern the relationship between the people and their government, not to control the rights of the people vis-a-vis each other.” Southcenter Joint Venture v. National Democratic Policy Com. 113 Wash.2d 413, 780 P.2d 1282, 1292 (1989) (emphasis added).  Likewise, the constitutions of the individual states “serve as limitations on the otherwise plenary power of state governments.”  Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 378 N.W.2d 337, 358 (1985).

As a result, the powerful protections afforded by the First Amendment do not prevent individuals from privately entering into agreements that restrict the speech rights of one or both parties to the agreement.  Employment contracts, for instance, frequently forbid employees from publicizing their employers’ proprietary information.  Absent some other statutory protection – such as the right to bargain collectively provided by the NLRA – restrictions on employees’ speech are generally enforceable.

This is significant to owners of homes included within homeowners associations because the nature of the relationship between an HOA and its individual members is fundamentally contractual.   Every association has a declaration of covenants, or similarly titled document, which sets forth the duties, obligations, and restrictions of both the association and the members.  Because the declaration is recorded in the local land records, a lot purchaser is deemed to have consented to the terms by accepting the deed to the property, which also typically states that the conveyance is made subject to the declaration.  See Citizens for Covenant Compliance v. Anderson, 12 Cal. 4th 345 (Cal., 1995).

Covenants set forth in a declaration are presumed to be valid and enforceable, like any other contract, as long as the covenant in question is not arbitrary, serves a legitimate purpose of the community, and does not violate public policy.  Nahrstedt v. Lakeside Village Condominium Association, Inc., 8 Cal. 4th 361 (Cal., 1994).  Thus, in general, HOA covenants restricting members’ rights of expression are enforceable unless the member can demonstrate some reason why the covenant should not be enforced – such as the public policy of the relevant state, as delineated by its legislature and courts.

Enforceability of HOA Restrictions on Free Expression.

HOA’s can get away with restricting speech that the government would be prevented from suppressing because an HOA is not a “state actor,” and enforcement of HOA covenants does not involve action by the state.  See e.g., Golden Gateway Center v. Golden Gateway Tenants Assoc., 111 Cal.Rptr.2d 336 (Cal. 2001).  Consequently, the free-speech protections provided by the First Amendment and state constitutions generally do not affect homeowners associations. 

To cite an extreme example, the United States Supreme Court has held that publication of lewd materials can be speech protected by the First Amendment.  Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).  But a homeowners association would have no problem whatsoever enforcing a restrictive covenant that prohibited the public display of obscene materials within the community. 

The American legal system affords great deference to the rights of private parties to enter into binding contracts.  As essentially a private contract, a validly adopted community covenant will generally be respected and enforced by a court unless its application is arbitrary or enforcement would violate some other law.  Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637, 639–40 (Fla. Dist. Ct. App. 1981).  For instance, a covenant prohibiting members from selling their homes to, or otherwise associating with, members of a certain ethnic or religious group would be unenforceable because it violates the federal Fair Housing Act.  But covenants requiring members to limit noise levels and avoid creating nuisances are routinely upheld.

Notwithstanding the general rule, it’s important to keep in mind that HOA’s are primarily governed by state law.  Statutes authorizing associations are enacted at the state level, and state courts usually have jurisdiction over HOA cases.  And, although state courts are bound by federal precedent in interpreting the U.S. Constitution, they have significantly more latitude when construing state constitutions.  As a result, there is some noteworthy variance in how state courts view associations under their home-state constitutions.

The position of the large majority, as noted above, is that a declaration of covenants is a private contractual agreement – enforceable in the same manner, and subject to the same limitations, as any other contract.  See, e.g., Midlake on Big Boulder Lake, Condominium Association v. Cappuccio.  673 A.2d 340 (Pa. Superior Ct.1996).  A small minority – most notably Massachusetts and New Jersey – view HOAs as “quasi-governmental;” not quite a state actor but not the same as any ordinary private citizen.  Under this latter view, associations are not held to as high of a standard as government agencies, but free-speech issues must still be weighed in cases seeking enforcement of covenants restricting a member’s speech. 

In Board of Managers of Old Colony Village Condominium v. Preu, 80 Mass.App.Ct. 728, 956 N.E.2d 258 (2011), the Massachusetts Court of Appeals held that an HOA enforcement action requesting a “prior restraint” of speech (i.e., an order enjoining speech before it occurs) implicates First Amendment rights because the court itself is a state actor.  And, in Mazdabrook Commons Homeowner’s Association, Inc. v. Khan 210 NJ 482, 46 A3d 507 (2012), the New Jersey court found New Jersey’s constitutional speech protections broader than those of the U.S. Constitution, and therefore applicable to the association, with regard to certain, highly-protected political speech.

Although not going as far as Massachusetts and New Jersey, California has also applied state constitutional speech rights to associations under limited circumstances.  In Golden Gateway Center v. Golden Gateway Tenants Assoc., 111 Cal.Rptr.2d 336 (Cal. 2001), the court held that free-speech protections can sometimes limit enforcement of HOA restrictive covenants, but “only if the property is freely and openly accessible to the public.”

While constitutional free-speech rights can be applied to homeowners associations in only a small minority of jurisdictions (and there only under limited circumstances), many states and the United States Congress have decided that some forms of speech are too important to leave completely between HOA’s and their members.  With that in mind, numerous laws specifically restricting the authority of HOA’s to impede certain forms of expression - most notably political speech and patriotic displays – have been enacted throughout the country.

Restriction of Political Speech by Homeowners Associations.

Over the years, the U.S. Supreme Court has identified various classes of speech subject to higher and lower levels of scrutiny.   Political speech, including speech for or against government policies, political candidates, or office-holders, or relating to “politics, nationalism, religion, or other matters of opinion,” receives the highest level of protection.  W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).  By way of comparison, “commercial speech,” which relates only to commercial transactions or economic interests, receives lesser protection.  Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980). Governmental restrictions on the content of speech are strongly disfavored and only rarely constitutional, whereas “content-neutral” restrictions relating to the “time, place, and manner” of expression are more likely to pass muster.  Ward v. Rock Against Racism, 491 U.S. 781 (1989).

Although constitutional free-speech protections are rarely directly applicable to homeowners associations, First Amendment jurisprudence has influenced the approach used by state legislatures to limit HOA restrictions on political speech. These statutes, where adopted, generally limit the enforceability of HOA covenants restricting political speech, particularly signs or other political displays and/or political activities within the community.

Political Signs.

Restrictions on signage are common in HOA’s throughout the country.  The idea is that sign restrictions promote the aesthetic beauty of the community, prevent visual obstructions, and result in a more tidy-looking, clean neighborhood.  Sign restrictions are generally enforceable without much problem in the same manner as any other covenant.  However, when political signs are involved, the question becomes much more interesting.

The U.S. Supreme Court has expressly recognized that signs count as “speech.” Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015).  And political signs are therefore political speech.  Relying on this reasoning while noting that “signs that support or discuss our political leaders and candidates for office are a small but important part of the fabric of our society,” a New Jersey court refused to enforce a covenant that prohibited all signs other than ‘for sale’ signs with regard to a member’s political sign.  Mazdabrook Commons Homeowner’s Association, Inc. v. Khan 210 NJ 482, 46 A3d 507 (2012).  Unfortunately for politically expressive association members and free-speech enthusiasts, Khan is an anomalous result.

In most jurisdictions, absent specific state legislation, an HOA covenant prohibiting political signs – or prohibiting all signs - is ordinarily an enforceable private contract. See, e.g., Big Boulder Lake Condominium Association v. Cappuccio.  673 A.2d 340 (Pa. Superior Ct.1996).  In the Cappuccio case, the Pennsylvania court held the restrictive covenant in question valid as long as it was uniformly enforced and was not arbitrary.  Thus, under the majority position in states without protective legislation, as enunciated in Cappuccio, a restriction which is arbitrary or is enforced inconsistently is invalid.  For instance, a restriction against political signs only applicable to one party’s candidates – or only enforced against members voicing support for one party – would likely be invalidated by a court reviewing the covenant.

State legislation protecting political signs in homeowners associations can vary considerably from state-to-state.  In Maryland, an HOA can’t prevent a member from displaying a political sign in his or her own yard close to election time.  MD Code, Real Property, § 11B-111.2.  But, cross the Potomac River into Virginia, and an association is free to prohibit political signs in its declaration.  Keep traveling south down I-95 to North Carolina, and associations can restrict political signs, but only if the declaration expressly states that it regulates political signs (i.e., a blanket restriction on signage won’t cut it).  N.C.G.S. §47F-3-121.

Arizona and Texas both employ an approach that has become increasingly popular around the country.  An association cannot prohibit political signs outright, but the prohibition only applies during a specific window around election time, during which period the association can exercise limited control over the “time, place, and manner” of the signs.  In Arizona, the protected period extends from 70 days prior to election day until three days after.  A.R.S. §33-1808C.  Texas protects political signs starting 90 days before election day and going through ten days afterwards.  Tex. Prop. Code §202.009

The Arizona statute allows associations to regulate the size and number of signs generally, but not any more strictly that any applicable local ordinance.  Id.  If no local ordinance is in force, the association cannot restrict the number of signs but can limit the total signage on a member’s lot to nine square feet.  Arizona also forbids limitations on the number of candidates supported per sign and disallows altogether covenants which would completely prohibit a member from displaying a ‘for sale’ sign.  A.R.S. §33-1808H and F(3).  Thus, the Arizona law, in effect, protects certain forms of both political speech and commercial speech.

Texas associations are allowed to limit the size of political signs to 4’ x 6’.  Tex. Prop. Code §202.009.  And, the Texas statute also expressly permits certain restrictions if included in a community’s covenants.  A Texas association can, for instance, require that political signs be ground-mounted and limited to one sign per candidate or ballot measure.  Id.  And Texas allows associations to ban language or images in political signs “that would be offensive to the ordinary person.”

Texas’s law is unusual in that it specifically grants associations the authority to remove a sign displayed in violation of a covenant that complies with Texas law.  Id.  In most states, associations are not allowed to take “self-help” measures, and must instead direct the member to remove the violative sign and/or seek compliance through fines, suspension of voting rights and access to common facilities, or other penalties provided in the community’s declaration.  See, e.g., Ga. Code Ann. §44-3-223.  If contractual remedies are not effective, associations are generally empowered to seek injunctive relief from a court of competent jurisdiction.  See, e.g., Ohio Rev. Code §5312.13.

Political Activities.

Political activities are actions taken by individuals or organizations “directed toward the success or failure of a political party, candidate for a partisan political office or a partisan political group.”  See Political Activity and the Federal Employee, U.S. Office of Special Counsel (2005).  Political activities include distribution of campaign literature, door-to-door canvassing for political candidates, campaign events, and circulating petitions. Political activities are considered political speech and therefore subject to heightened protections under the First Amendment.   Heffernan v. City of Paterson, 136 S.Ct. 1412 (Slip Opinion) (2016). 

As we have seen, homeowners associations’ ability to restrict political activities is not limited by the First Amendment because HOA’s are not “state actors.”  However, as with political signs, some states have enacted legislation limiting the power of associations to restrict political activities.

Arizona’s HOA law expressly protects “door to door political activity” from association encroachment.  A.R.S. §33-1808G.  Arizona associations cannot prohibit “solicitations of support or opposition regarding candidates or ballot issues.” And, in areas normally open to visitors, associations may not “prohibit the circulation of political petitions, including candidate nomination petitions or petitions in support of or opposition to an initiative, referendum or recall or other political issue.”  Id.  The Arizona law specifically allows associations to limit door-to-door political activities to daylight hours and to require that anyone engaging in such activities wear a nametag and clearly identify the candidate or issue they are supporting.  Id.  Importantly, the Arizona law only protects homeowners and residents of the community and does not prevent associations from limiting political activities within the development by individuals with no connection to the community.

California’s Davis-Stirling Act protects community-members’ right to peacefully assemble within the community to discuss political and/or election issues.  Cal. Civ. Code §4515(b).  The statute guarantees community residents the right to invite political office-holders or candidates to speak within the community, including within common areas.  Id.  As with the Arizona law, California also protects members’ right to circulate political literature and petitions within the community “at reasonable hours and in a reasonable manner.”  Id. 

Additionally, California’s Supreme Court has extended the free speech protections provided by the California Constitution – normally only applicable to the state – to private property owners in the limited situation where the property is “freely and openly accessible to the public,” and therefore akin to a “traditional public forum.”  See Golden Gateway Center v. Golden Gateway Tenants Assoc., 111 Cal.Rptr.2d 336 (2001).  The Golden Gateway Court held that, because the association involved in that case was not open to the public, state constitutional protections were inapplicable, and residents therefore did not have a right to distribute their newsletter within the community.  However, free-speech protections would apply if association facilities were open to the public. 

American Flags.

The public display of the American flag enjoys a special status among forms of speech protected by state and federal law.  Under the Freedom to Display the American Flag Act of 2005, homeowners associations are forbidden from prohibiting display of the Stars & Stripes by community residents.  The law does allow, though, for “reasonable limitations” on the flag’s display.  Notably, what constitutes an “American flag” is precisely defined by U.S.C. §4-1-1.   So, a flag that has been altered in a manner not recognized by the statute might not be protected.

Numerous states have adopted similar laws protecting patriotic displays.  Along with the U.S. flag, Florida law protects HOA members’ display of the state flag of Florida, the flags of each branch of the armed services, and the POA / MIA flag.  Fla. Stat. §720.304.  The Florida law protects flags up to 4.5 x 6 feet in size. 

Arizona’s flag-display statute offers similar protections to Florida’s but adds the Gadsden and Indian Nations flags to the protected group (along with the Arizona and American flags).  A.R.S. §33-1808A.  Arizona allows associations to regulate the location and size of flagpoles, and to limit members to two flags on display at a time, but does not allow associations to prevent display in a member’s front or backyard altogether, or to limit flagpole height lower than roof level.

 When regulating patriotic displays – as with any other speech – associations should be mindful that enforceability of restrictive covenants hinges on uniform application.  An association that declines to enforce a restriction with regard to one member or manner of expression should not be surprised if it is precluded from enforcing that restriction with regard to another member or manner of expression.  Thus, an association which prohibits flag displays, but which consents to the display of the Union Jack, will, in all likelihood, discover that it has also consented to the display of the Maple Leaf.