Private Flag, Sign Rules Stifle Speech
Mark Silverstein is seizing his chance to wedge a foot in the door for free speech.
After suing a subdivision over its discriminatory flag and yard sign rules, the American Civil Liberties Union of Colorado legal director hopes to leverage the publicity around his case to challenge homeowners associations that muffle political messages.
Silverstein and his ACLU colleagues are representing Aurora resident David Pendery in a federal lawsuit against Whispering Pines Metropolitan District No. 1, which allows U.S., Colorado, military, sports team and holiday-themed flags but requires him to obtain special permission before he can fly a rainbow Pride flag to show support for LGBTQ rights. The district says his small yard sign promoting inclusivity is subject to the same approval process.
Since metro districts are government entities, the disparate treatment tees up a textbook First Amendment claim. But Silverstein can't ignore the parallels between Whispering Pines and private HOAs, which are infamous for persnickety rules and impervious to the bad press they generate.
An ACLU of Colorado press release announcing Pendery's suit seeks referrals from HOA and condo association residents who've been warned that their signs or flags are against the rules. While the First Amendment doesn't constrain these private groups, there's a lesser-known avenue to assert residents' expressive rights.
"I question the stance of homeowners associations that are going to say these constitutional rules don't apply to them," Silverstein told Denver NBC affiliate KUSA-TV. "In Colorado, our state constitution says all persons shall be free to speak and publish and express their views and I think that that carries over even into these HOAs."
Federal courts rebuff free speech complaints filed against neighborhood associations, yet state judges may prove more sympathetic. In a 2012 case, the New Jersey Supreme Court ruled that the New Jersey Constitution protects HOA residents against content-based sign restrictions.
Most states' founding documents predate the U.S. Constitution, and some promise even broader freedoms than the Bill of Rights, law professor David Schultz wrote in an entry for the "Encyclopedia of the First Amendment," a project of the Free Speech Center at Middle Tennessee State University. Federal courts can add speech protections for state residents, but they lack jurisdiction to subtract them.
Article II, Section 10 of the Colorado Constitution is unambiguous in its guarantees of personal liberty to speak, write and publish. It could be Silverstein's silver bullet against HOA busybodies who'd rather slap their neighbors with warnings and fines than drive past a yard sign they consider controversial.
North Carolina is fertile ground for a test case. The N.C. Planned Community Act has all the hallmarks of industry-friendly legislation drafted with lobbyists' input. However, a plain reading of the state constitution's Article I, Section 14 suggests private actors don't have unbridled authority to silence speakers.
State-level litigation will be messy. The probable outcome is a patchwork of conflicting court decisions that extend expressive rights to some HOA residents and leave others out in the cold. That could eventually build support for congressional action that shields everyone.
It wouldn't be without precedent. In 2006, then-President George W. Bush signed the Freedom to Display the American Flag Act, which bars association-governed communities from banishing Old Glory. Likewise, individual states can rein in HOA rules whenever lawmakers can muster the political will.
The National Association of Realtors says 73.9 million people -- more than a fifth of all Americans -- live in communities with a homeowners association or condo board. Restrictive covenants written into property deeds allow these private entities to assess fees and impose fines. Residents who don't pay face the threat of liens and lawsuits, and in the most extreme cases, your HOA could seize your home and sell it to satisfy the debt.
No other private organization can assert such sweeping confiscatory power. Whatever their articles of incorporation may say, these associations have more in common with cities and counties than churches, charitable foundations and other nonprofits. They should be regulated as the quasi-governmental entities they are.
HOA communities are formed to preserve property values, but too many ridiculous rules could swing that pendulum in the opposite direction as homebuyers vote with their feet. It's ultimately in everyone's best interest to stop nosy neighbors from policing political speech.
Corey Friedman is an opinion journalist who explores solutions to political conflicts from an independent perspective. Follow him on Twitter @coreywrites. To find out more about Corey Friedman and read features by other Creators writers and cartoonists, visit the Creators webpage at www.creators.com.Copyright 2021 Creators Syndicate Inc.