Freedom to Display the American Flag in an HOA Community
One federal law speaks directly to homeowners associations and the flag. Here's what it protects, the limits associations keep, and why your state's law often matters more than the federal Act.
The Freedom to Display the American Flag Act of 2005 — Pub. L. No. 109-243, 120 Stat. 572, enacted in 2006 — sits in Title 4 of the U.S. Code alongside the Flag Code, at 4 U.S.C. § 5. It is unique among the federal laws that affect community associations: where most reach associations only indirectly, this one is expressly addressed to condominium associations, cooperative associations, and residential real estate management associations (commonly called HOAs or common-interest communities).
The Act bars those associations from adopting or enforcing any policy — or entering into any agreement — “that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association” that the member owns. 4 U.S.C. § 5.
The protection is not absolute. It covers a member’s own property, and it leaves associations room to set reasonable limits. The Act provides that nothing in it permits a display that is inconsistent with:
(1) … any rule or custom pertaining to the proper display or use of the flag; or
(2) any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.
In practice, that means an association may still enforce reasonable time-, place-, and manner rules, and it may prevent displays that violate the U.S. Flag Code — for example, a flag flown in a disrespectful or damaged condition. What it cannot do is ban the flag outright.
Here is the catch that surprises most homeowners: the federal Act contains no enforcement provision, assigns no agency to enforce it, and — as at least one federal court has held — creates no private right of action a member can use to sue an association directly under the Act. See Murphree v. Tides Condo. at Sweetwater by Del Webb Master Homeowners’ Ass’n, No. 3:13-cv-713-J34MCR (M.D. Fla. 2014) (the Act provides no “enforcement mechanism, or explicitly create[s] a private right of action”).
So while the Act tells associations what they may not do, a homeowner’s practical leverage usually comes from a parallel state flag-display law — many of which do carry enforcement teeth.
A number of states have enacted their own protections for patriotic displays, including the U.S. flag — for example, Florida (Fla. Stat. § 720.304), Arizona (A.R.S. § 33-1808), and Colorado (C.R.S. § 38-33.3-106.5).
Because these state statutes often carry the enforcement power the federal Act lacks, a member should check both the association’s governing documents and the law of their state before assuming a flag rule is — or isn’t — valid.
The U.S. Flag Code
The Freedom to Display Act lives within Title 4, Chapter 1 — the U.S. Flag Code, which sets out the customs for displaying and respecting the flag.
| Section | 4 U.S.C. |
|---|---|
| Flag; stripes and stars on | § 1 |
| Same; additional stars | § 2 |
| Use of flag for advertising purposes; mutilation of flag | § 3 |
| Pledge of allegiance to the flag; manner of delivery | § 4 |
| Display and use of flag by civilians; codification of rules and customs; definition | § 5 |
| Time and occasions for display | § 6 |
| Position and manner of display | § 7 |
| Respect for flag | § 8 |
| Conduct during hoisting, lowering or passing of flag | § 9 |
| Modification of rules and customs by President | § 10 |
Recommended reading
- The United States Flag: Federal Law Relating to Display and Associated Questions (CRS, 2011) ↗
- Frequently Asked Questions About Flag Law (CRS, 2019) ↗
- Murphree v. Tides Condominium (M.D. Fla. 2014) — no private right of action ↗
- Gerber v. Longboat Harbour North Condominium, 724 F. Supp. 884 (M.D. Fla. 1989) ↗