EDITOR’S NOTE: This article originally appeared on the Hoffman Law, LLC blog and is shared by permission of author Edward Hoffman, Jr., Esq., CCAL.
Sign, sign, everywhere a sign
Blockin’ out the scenery, breakin’ my mind
Do this, don’t do that, can’t you read the sign?
“Signs” – Five Man Electrical Band
(with Tesla – the band, not the scientist and/or the vehicle, providing a very solid cover of the original)
Every year, usually around election season, the signs come out. Let’s discuss some reoccurring sign issues that pop up (pun intended) in community associations year after year.
Signs that People Believe Implicate “Freedom of Speech”
What about those “Hate Has No Home Here” signs? During the 2016 and 2020 election seasons, these signs popped up with increasing frequency between owners/members/residents in associations who attempted to assert their “First Amendment freedom of speech rights” in support of the notion that they could fly or display the Hate Has No Home Here sign based upon their “First Amendment constitutional right to freedom of speech” (a battle over this issue actually ensued local to the author in a Philadelphia suburb between an owner and an association, but it appears to have resolved prior to litigation). Are the owners/members/residents correct? To give a definitive legal opinion: probably not.
In very general terms, and as related solely to the discussion of the issues in this Blog post, the First Amendment to the United States Constitution provides that the government (which now includes local and state governments) cannot make laws that abridge freedom of speech:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The emphasis on the government in the First Amendment is an important one – there must be “state action” by a “state actor” in order to trigger application of First Amendment rights; in other words, the government must be seeking to curtail or otherwise limit someone’s First Amendment rights in order for the First Amendment protections to apply.
Since a community association is private, and is not an official form of “government”, federal First Amendment freedom of speech protections would not apply to private association restrictions or covenants that may limit such rights. But what about the individual states – how do they apply freedom of speech protections to community associations? While most states do not consider a community association a “state actor” and will therefore not interfere or overturn private association restrictions or covenants that may limit speech, there are states that have actually found in favor of homeowners in matters concerning freedom of speech in a community association. However, Pennsylvania does not appear to be one of these states, at least as it relates to owners/members/residents that have argued that “for sale” signs must be allowed because it is a “freedom of speech” issue.
In Midlake on Big Boulder Lake Condominium Association v. Cappuccio, 673 A.2d 340 (Pa. Superior 1996), the Pennsylvania Superior Court upheld an association restriction which prohibited owners from posting any type of sign on or in a unit or a common element which would be visible from the outdoors. The court held that the association was a private, not governmental, organization and as a result the association was entitled to enforce its restrictions without violating the First Amendment of the United States Constitution. In reaching its decision, the court also found that the owners contractually agreed to abide by the restrictions in the covenants at the time they purchased the home, thereby relinquishing their freedom of speech concerns.
In Anelli v. Arrowhead Lakes Community Association, Inc. (Pa. Cmwlth. 1997), a restriction on “For Sale” signs was contained in the association covenants and homeowners that could not sell their home posted a “For Sale” sign in front of their home. The Pennsylvania Commonwealth Court held the association restriction on “For Sale” signs to be enforceable as the Association is not a governmental entity and was therefore permitted to restrict “free speech” in the nature of posting “For Sale” signs.
Thus, at least in Pennsylvania, it appears that the current trend is that Hate Has No Home Here and similar signs would not be afforded protection under First Amendment to the United States Constitution as Associations are not state actors, and the private covenants, if applicable and restrictive, would be determinative. The lesson to be learned here is, contact association counsel if this issue manifests before acting in any manner as your state may have differing state protections that would alter the outcome.
Political Candidate Signs
Community association residents have divergent political leanings and opinions on various issues. They are politically active outside of their association. They vote. They want to support their preferred political party and/or its candidates. One way to do so is to support their candidate by putting a sign in the lawn or window of their unit. But since they live in a community association, can they display these political signs if the association’s covenants and restrictions say they can’t, or limit where the signs can be placed? In Pennsylvania, the appellate courts have not yet taken up the political sign issue, but based upon the Midlake and Anelli cases, the result would likely be that the private covenants would control. In the state of New Jersey, however, the answer appears to be “it depends”.
In Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 192 N.J. 344 (2007), the New Jersey Supreme Court upheld an association’s ability to enforce sign restrictions, including “political” signs, as the contractual (association) restrictions still reasonably allowed for the placement of such signs in a window and in an identified area of the lawn.
Five years later, the New Jersey Supreme Court issued another opinion in Mazdabrook Commons Homeowners’ Ass’n v Khan, 210 N.J. 482 (2012), again on a political sign issue, but in favor of the homeowner this time. In Mazdabrook, a homeowner was running for local political office and posted two of his campaign signs inside of a window and inside of a [glass] door of his home. The distinction between this case and Twin Rivers was that the association’s restrictions in Mazdabrook essentially banned almost all types of signs, except for one “For Sale” sign. The Court held that the association sign restriction violated Article I, Section 6 of the New Jersey Constitution, which provides that “…[e]very person may freely speak, right and publish his sentiments on all subjects, being responsible for the abuse of that right.” In coming to its decision, the Mazdabrook Court compared Twin Rivers and concluded that an owner’s right to post a political sign outweighed the impact on the association’s private property interests.
It appears that the distinction between the Twin Rivers and Mazdabrook cases was that the Twin Rivers restrictions permitted political signs but restricted their location, while the Mazdabrook restrictions did not permit political signs in any manner whatsoever, stifling the homeowner’s right to assert political speech in accord with the New Jersey Constitution.
I would envision that the same analysis would occur if instead of a lawn or window sign, owners/members/residents flew or displayed a “flag” with their preferred candidate’s name emblazoned across the flag – and the following question begs to be asked: is this even really a “flag” or is it merely a political campaign sign or endorsement? In my eyes, it is the latter. I foresee a situation in the not so distant future where owners/members/residents will fly or display a candidate’s political campaign flag as “flags” may be permitted by vague covenants when other types of exterior signs or displays may otherwise be prohibited in the community. In Pennsylvania, based upon current precedential appellate case law, such a flag would not be protected, but in New Jersey, it may be protected based upon how restrictive the covenants in a community may be as it relates to protections afforded by the New Jersey Constitution.
Your state might be different, so please seek the cogent advice of association counsel BEFORE making any decisions that might be contrary to state law and/or your state constitution.
Sign issues will always be present in community associations, so Association Boards and community managers must be educated on sign issues and handle them correctly before they go the wrong way. Remember, a little common sense goes a long way – often times, sign issues should, and can, be resolved instead of ending up in court and/or being plastered across social media and cable news networks.
ABOUT THE AUTHOR
Edward Hoffman, Jr., Esq., CCAL founder and managing partner of Hoffman Law LLC is a Fellow in the College of Community Association Lawyers, a prestigious designation earned by less than 175 attorneys in the United States since it was established in 1993. Ed serves as Chair of CAI’s Pennsylvania Legislative Action Committee (PA LAC) and is a member of CAI’s Pocono Mountains Regional Council. Ed can be contacted via email at: firstname.lastname@example.org.
The content for this Blog post is derived from an article on flags in community associations written by the author and published in the September/October 2020 issue of CAI’s Common Ground Magazine entitled “Stars and Stripes and Sleepless Nights”.
This Blog post can also be found on the Hoffman Law LLC website: https://hoffmanhoalaw.com/blog/