Flying the U.S. Flag: Freedom of Speech and Private Contracts
Today, July 4th, is one of the rare days that I am allowed to fly the flag. Last month, ironically two days before national Flag Day in the United States, I received a notice from my condominium homeowners association prohibiting residents from displaying the U.S. flag from the exterior of our homes except on a few specific days of the year. Prior to receiving this memo, I, along with a handful of other residents, regularly displayed small flags from our balconies. Flying the flag where we live seems fitting and proper because, from our balconies, we can see the Lincoln Memorial, the Washington Monument, and the U.S Capitol building. Also, the nearby clock tower, the Netherlands Carillon, plays the Star-Spangled Banner twice a week. My U.S. flag is 2-feet by 3-feet and flies from a 4-foot pole, which I remove at sunset in accordance with the U.S. Flag Code.
Now, I cannot display the U.S. flag except on legal government holidays. I, however, can hoist a patio umbrella of any size, shape, or color on a pole of any size on any day of the year, as long as the umbrella does not have a visible U.S. flag on it. These incongruous rules raise the question:
Can the rights of a citizen to display the U.S. flag
on private property and within that person’s exclusive use
What follows is my exploration of the Freedom to Display the American Flag Act of 2005, the enumerated powers of Congress to enact legislation empowering homeowners associations to restrict flag displays, the limitations of individual rights under the First Amendment, the freedom of individuals to enter into private contracts that may restrict their freedom of speech, and what constitutes a legal government holiday.
I. Federal Law — Freedom to Display the American Flag Act of 2005
Under the federal Freedom to Display the American Flag Act of 2005 passed by the U.S. Congress in 2006 and signed into law by President Bush on July 24, 2006, homeowners associations throughout the country may not prohibit the displaying of the U.S. flag, but they can regulate the “time, place, or manner” of display when “necessary to protect a substantial interest” of the condominium association. Also, homeowners regulations may not be inconsistent with the U.S. Flag Code given in Chapter 1, Title 4 of the United States Code.
Rep. Roscoe Bartlett watches as President Bush signs the bill into law on July 24, 2006.
Image linked from WhiteHouse.gov.
Sec 2. Definitions.
For purposes of this Act –
(1) the term ‘flag of the United States’ has the meaning given
the term ‘flag, standard, colors, or ensign’ under section 3 of
title 4, United States Code;
Sec. 3. Right to Display the Flag of the United States
A condominium association, cooperative association, or
residential real estate management association may not adopt or
enforce any policy, or enter 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 with respect to which such member has a separate
ownership interest or a right to exclusive possession or use.
Sec. 4. Limitations.
Nothing in this Act shall be considered to permit any display or
use that is inconsistent with –
(1) any provision of chapter 1 of title 4, United States Code,
or any rule or custom pertaining to the proper display or use of
the flag of the United States (as established pursuant to such
chapter or any otherwise applicable provision of law); 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
Which members of Congress voted for the bill is unknown because neither the House of Representatives nor the Senate recorded each member’s position or the number of members voting. In the House, the bill passed by voice vote on June 27, 2006. Under House Voting Rules, a voice vote can be passed upon support by 25 of the 435 members and without a minimum number of supporters. In this case, the bill was introduced by Rep. Roscoe Bartlett from Maryland and supported by thirteen other members. The bill’s final language was accepted as originally introduced. In the Senate, the bill passed on July 17, 2006 by unanimous voice vote and without a record of members’ individual votes. Senate Voting Rules allow a voice or division vote to be considered valid even if only a few Senators participated: “Until a point of no quorum has been raised, the Senate operates on the assumption that a quorum is present, and even if only a few Senators are present, a measure may be passe[d].” Here, one Senator asked on the Senate floor that the bill be agreed to by unanimous consent. Then, the presiding Chair would have called for the voice vote by saying: “All those in favor say aye, all those opposed say no.” The bill could have been passed even if a single Senator was the only one in the room and he/she responded, “aye.” The Chair would announce that the ayes appear and do “have it.” The subsequent recorded vote does not reveal how many Senators were in the room or how each Senator voted. Thus, the “unanimous consent” theoretically could have been by a sole – and unidentified – Senator.
With due respect to the two members who spoke on the House floor in support of the bill — Raymond Green (Democrat-Texas) and Dennis Moore (Democrat-Kansas) — Section 4 eviscerates the spirit and impact of their speeches. The bill does not “guarantee” every homeowner a fundamental right to “display the American flag wherever they live.” If Rep. Moore truly felt that “American citizens should not be prevented from . . . raising the flag on their own property, even if their property is part of a larger association of properties,” then he should have sought such legal protections in the bill.
As Rep. Bartlett pointed out when he introduced the bill, the goal of the legislation was not to provide an unfettered right to display the flag. The goal was to find a compromise between the right of individuals to display the flag and the right of homeowners associations “to maintain the value of their properties.” In that sense, Section 4 largely maintains the status quo of homeowners regulations. Associations can restrict the rights of homeowners to display the flag in order to protect the “substantial interest” of property values, provided that they do not impose a complete ban on all flag displays.
Notably, the U.S. Flag Code is merely advisory on how citizens should treat the flag. It covers advice on which direction to hang the flag, how to hoist and lower the flag, when citizens should cover their hearts in the presence of the flag, and an encouragement to citizens to fly the flag every day. Because the Flag Code does not require a daily display of the flag, homeowners associations can impose regulations that limit the number of days that the flag can be displayed and not be “inconsistent with” the Flag Code.
Next, let’s consider whether the Freedom to Display the American Flag Act of 2005 is constitutional and whether it is legally meaningful with respect to the rights of the individual under the First Amendment.
II. Constitutional Challenges and Governmental Powers
• Commerce Clause
The Freedom to Display the American Flag Act of 2005 is vulnerable to a challenge that Congress lacked authority to pass such legislation within its enumerated powers under Article I of the U.S. Constitution and thus acted unconstitutionally in its preemption of the homeowners regulations. The strongest argument for lawyers on Capitol Hill is that the power to authorize homeowners associations to restrict flag displays on private property derives from the Commerce Clause, specifically Congress’ power to regulate activities substantially affecting interstate commerce under Article 1, Section 8. Although the statutory text of the Flag Act contains no explicit reference to interstate commerce, pragmatic evidence in support of Congress’ power under the Commerce Clause could include: flag sales across state borders, commerce from foreign imports of U.S. flags, or the operation of homeowners associations across states. Rep. Bartlett impliedly made the connection to interstate commerce in the bill’s introduction when he said that he introduced the bill in response to a request by one of the country’s largest manufacturers of flags. Thus, a nexus to interstate commerce likely would be satisfied if the Act would be challenged in court.
• A Taking Under the Fifth and Fourteenth Amendments
A “takings” argument attacking the constitutionality of the Freedom to Display the American Flag Act of 2005 could be made under the Fifth and Fourteenth Amendments but likely would not be successful. Here, if homeowners associations or individual homeowners wanted to defeat the law, they could argue that the Flag Act of 2005 unlawfully restricts the right of private actors to contract and thus impermissibly interferes with private property rights, constituting a taking. In Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), the U.S. Supreme Court established the “permanent physical presence test” for regulatory takings. There, the government required certain property owners to install cable wires, as a permanent physical occupation of property. The homeowners sued the private cable company for trespass and argued that such governmentally compelled intrusion was a regulatory taking requiring compensation under the Fifth Amendment and Fourteenth Amendments of the U.S. Constitution. The Court upheld the constitutionality of the law and established that when the government compels a permanent physical presence, such regulatory action constitutes a taking per se. Here, the counter argument is that there is no taking because no permanent physical presence is imposed. Furthermore, homeowners are not completely deprived “all economically beneficial use” of their property under the “total takings test” established in Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992). Other arguments related to the significant public interest involved or the minimal economic impact would need to overcome the Court’s holding in Loretto and Lingle v. Chevron, 544 U.S. 528 (2005) (rejecting the “substantially advances” standard in Agins v. City of Tiburon (1980)).
• Precedent and Satellite Dishes
A similar preemption by the federal government of homeowners associations regulations occurred in the 1990s with satellite dishes. There, the FCC promulgated rules and regulations prohibiting homeowners restrictions that would interfere with the individual right of homeowners to install, maintain, and use of small satellite antennas and dishes in areas within the owner’s “exclusive use or possession.” 47 C.F.R. Section 1.4000 (the rules); see Second Report and Order, F.C.C. 98-273 (1998) (adopting rules); Section 207 “Restrictions on Over-the-Air Reception Devices” of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 114. The FCC defended the regulations as a constitutionally lawful exercise of authority delegated to the FCC by Congress and in accordance with the Commerce Clause. Initially, the regulations strongly favored the individual homeowner, but the FCC relaxed the restrictions over time in response to complaints by homeowners associations. Currently, under the Rules, homeowners associations may impose reasonable “time, manner, and place” restrictions when necessary to address legitimate and clearly articulated safety or historic preservation issues, provided such restrictions are as narrowly tailored as possible, impose as little burden as possible, and apply in a nondiscriminatory manner to all members of the homeowners association. Courts have held that homeowners associations may impose restrictions related to aesthetic camouflaging and location as long as the restrictions do not impair clear signal reception or cause discriminatory effects. See, e.g., Lemle Realty Corp. v. Desjardin, 787 N.Y.S.2d 678 (2004) (recognizing the right of homeowners to install a satellite dish on a patio or balcony but not on the roof without prior permission).
• Note: Additional challenges, not discussed here, could be brought under the Due Process Clause and the Equal Protection Clause. The Contract Clause applies only to state laws, not federal, and holds that states cannot enact legislation that substantially interferes with existing public or private contracts. The court applies a strict scrutiny standard to public contracts and an intermediate scrutiny standard to private contracts.
III. First Amendment Rights: Freedom of Expression
The statutory language used in the Freedom to Display the American Flag Act of 2005, as applied to homeowners associations, is consistent with the language of First Amendment cases involving government regulation of speech in public and publicly accessible places, including sidewalks, streets, and public parks. This choice of language is significant because it essentially transposes the protections of individuals against government interference under the First Amendment to the protections of individuals against interference from private actors.
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.
• 1st Amendment Content-Based Restrictions – More Favorable Treatment for the U.S. Flag
Significantly, the Freedom to Display the American Flag Act of 2005 advances the important government interest of patriotism but applies more favorable treatment for the display of the U.S. flag as compared to the display of other flags. This regulation of content-specific speech, specifically favoring the U.S. flag, can be regulated either in the affirmative right to display the flag or in a prohibition, such as the inability to display the flag. Generally, content-based restrictions are subject to strict scrutiny by which the burden would be on the government, or similarly in this case on the homeowners association, to show that any restriction on speech was necessary to achieve the compelling governmental interest. In U.S. v. Eichman, 496 U.S. 310 (1990), the Supreme Court struck down the Flag Protection Act of 1989 prohibiting the destruction of the U.S. flag (flag burning) as unconstitutional because the law contained an implicit content-based limitation on the scope of prohibited conduct and thus unlawfully suppressed speech. The court explained that it violated the First Amendment because the law applied specifically to the U.S. flag, not all flags. Consider a homeowners association rule that allows only the U.S. flag to be flown. Notably, the Freedom to Display the American Flag Act of 2005 does not address state flags, military flags, P.O.W. flags, foreign flags, etc. Accordingly, open questions include whether homeowners regulations pursuant to federal law can restrict lawfully the flag displays solely to the U.S. flag but not other flags; only the current 50-star U.S. flag but not non-50 stars flags; the U.S. flag and foreign country flags but not state flags; or the U.S. flag and state flags but not military or POW flags, etc. For POW/MIA flags, see the discussion below about what the law means for individual homeowners.
• 1st Amendment Content-Neutral Restrictions – Time, Manner, and Place
In contrast to strict scrutiny analysis applied to content-based restrictions, courts have upheld content-neutral speech regulations under an intermediate scrutiny analysis (similar but distinct from the intermediate analysis used for laws and regulations related to gender and illegitimacy) upon a showing that they advance an important interest unrelated to the suppression of speech, do not burden substantially more speech than necessary to further the important interest, and apply in a nondiscriminatory manner. Even greater leeway is granted to regulations that restrict the “time, place, and manner.” Such restrictions generally are found to be valid when they are narrowly tailored to achieve an important interest. The regulation will not be upheld where it is overbroad or overly vague.
Here, assuming that the time, manner, and place analysis of First Amendment jurisprudence would be applied, the burden is on the homeowners association to show that the regulation restricting the flying of the flag is “necessary” to protect a “substantial interest” of the association under Section 4 and narrowly tailored to achieve that interest. If the association can satisfy its burden, the homeowner has the burden of showing that the association’s regulation was invalid because it prohibited substantially more speech than necessary or that it was insufficiently clear to the “reasonable person” as to what conduct was prohibited or restricted. Thus, the homeowner bears the burden of demonstrating overbreadth or vagueness.
Consider the lawfulness of the following restrictions by a homeowners association:
- Time: Allow flags only to be displayed on the 10 public holidays for federal employees
- Manner: Permit flags only 3 inches by 5 inches or smaller
- Place: Allow only window sticker flags
- Purpose: Solely to promote aesthetic considerations
- Purpose: Solely to promote property value considerations
Nearly two decades ago, a Florida homeowner faced the same restriction that I face. In Gerber v. Longboat Harbour North Condominium, Inc., 724 F.Supp. 884 (M.D.Fla. 1989), vacated in part, 757 F.Supp. 1339 (M.D. Fla. 1991), the plaintiff challenged a restriction limiting the display of the U.S. flag to holidays. The court held that the regulation constituted state action because of the possibility that the regulation would be judicially enforced. This case, however, was not followed by other courts. Cf. Loren v. Sasser, 309 F.3d 1296 (11th Cir. 2002); Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288 (2001); Goldberg v. 400 East Ohio Condominium Association, 12 F.Supp.2d 820 (N.D.Ill. 1998) (finding no state action).
• Symbolic Political Speech as “Protected Speech”
Should flying the U.S. flag receive special consideration as protected political speech? In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court upheld the right of public school students to wear black armbands in protest of the Vietnam War because it constituted protected speech and did not substantially interfere with school discipline or the rights of others. Following that analysis, private homeowners should be able to fly the flag as long as the flag does not substantially interfere with other homeowners or the use and enjoyment of common areas. Thus, a flag that extends beyond the areas of one’s exclusive use and control could be regulated when it substantially interferes with another’s use of his patio or balcony. Depending on the jurisdiction, interference with aesthetic views, solar rays, or light of another homeowner’s property could be justiciable.
IV. Freedom of Contract
Condominium and homeowners associations embody the freedom of contract. In private common-interest communities, such as those governed by homeowners associations and condo associations, each member has a vote in how the private community is managed, operated, and run. Significantly, homeowners have a voice in how the rules and regulations are promulgated. Thus, members voluntarily consent to a private contractual relationship when they move into and join a common-interest community. Challenging unfair private homeowners’ regulations in court can be costly for both sides. Moreover, courts are reluctant to intervene into the contractual relations between private parties under the freedom of contract unless the restrictions violate public policy. See Shelley v. Kraemer, 334 U.S. 1 (1948) (rejecting a race-based covenant).
V. What Constitutes a Legal Government Holiday?
Consider a homeowners association regulation that restricts flag displays to “legal government holidays.” What would constitute a qualifying holiday? Would such wording restrict the permissible days to those recognized by federal law or would it include days recognized by Executive Orders and Proclamations?
Federal law, 5 U.S.C. 6103, establishes ten annual public holidays and Inauguration Day as paid holidays for federal employees. Then, there is “Honor America Days,” 36 U.S.C. 112, Public Law 105-225, passed by Congress in 1998, designating the 21 days from Flag Day through Independence Day as a “period to honor America” and declaring “that there be public gatherings and activities during that period at which the people of the United States can celebrate and honor their country in an appropriate way.” The Honor America Days Act is silent on the flying of the flag.
Other holidays, such as Flag Day and Flag Week, are recognized by Presidential Proclamation. Annual proclamations also include “Loyalty Day” on May 1 (calling upon all people of the United States to join in support of this national observance and to display the flag of the United States on Loyalty Day as a symbol of pride in our Nation) and “Peace Officers’ Memorial Day and Police Week” during the second week of May (encouraging “all Americans to display the flag at half staff from their homes and businesses on that day”).
Lesser known Presidential Proclamations call for celebrations and observances of “National Maritime Day” (urging Americans to display the flag at their homes to honor the service of merchant mariners); “Italian Independence Day” (calling upon all Americans to observe this day by celebrating the contributions of Italians and Italian Americans to our Nation); and “Law Day” on May 1 (calling upon government officials to display the flag and coinciding with Loyalty Day).
The U.S. Flag Code recommends flying the flag every day but particularly on the same ten holidays covered by 5 U.S.C. 6103. The Flag Code also includes eight other specific dates, all days proclaimed by the President of the United States, and state holidays.
TITLE 4–FLAG AND SEAL, SEAT OF GOVERNMENT, AND THE STATES
Sec. 6. Time and occasions for display
(d) The flag should be displayed on all days, especially on
New Year’s Day, January 1;
Inauguration Day, January 20;
Martin Luther King Jr.’s birthday, third Monday in January;
Lincoln’s Birthday, February 12;
Washington’s Birthday, third Monday in February;
Easter Sunday (variable);
Mother’s Day, second Sunday in May;
Armed Forces Day, third Saturday in May;
Memorial Day (half-staff until noon), the last Monday in May;
Flag Day, June 14;
Independence Day, July 4;
Labor Day, first Monday in September;
Constitution Day, September 17;
Columbus Day, second Monday in October;
Navy Day, October 27; Veterans Day, November 11;
Thanksgiving Day, fourth Thursday in November;
and such other days as may be proclaimed by the President of the United States;
the birthdays of States (date of admission); and
on State holidays.
Oddly, Mother’s Day, but not Father’s Day, is a recognized holiday in the U.S. Flag Code. Father’s Day is recognized by Presidential Proclamation. The annual proclamation directs government officials, but not all Americans, to fly the flag. In contrast, the Mother’s Day annual proclamation omits any reference to the flag, arguably because it is covered by the U.S. Flag Code. Compare the Father’s Day and Mother’s Day Proclamations.
VI. What Does This Mean for Individual Homeowners?
First, you do not have a guaranteed, unfettered right to fly the flag under the Freedom to Display the American Flag Act of 2005. Under federal law, the rights of private homeowners can be restricted by regulations adopted and enforced by homeowners associations. The scope of lawful homeowners restrictions under the Act and the constitutionality of the Act remain untested. You also should check to see if your state has adopted legislation. Several states recently enacted legislation consistent with the federal law of 2005.
What about my First Amendment rights and freedom of speech? Currently, it is unclear how a court would decide a case, and you face many hurdles. First, you’ll need to demonstrate standing, giving you legal recognition to bring the case before the court. Next, Congress and the President enacted legislative language consistent with the First Amendment “time, place, and manner” analysis used by the courts, tipping the balance towards upholding restrictions as compared to a strict scrutiny analysis. Third, historically, the First Amendment protects you against interference from the government, not from private actors. Overall, courts are wary to intervene in private contracts, particularly those entered into voluntarily. The precedent of satellite dishes and rejection of race-based covenants, however, suggests some inroads to protections against interference from private actors.
In a 2007 case involving the posting of political signs in a 10,000 member planned community governed by a non-profit homeowners association, the New Jersey Supreme Court held that: (a) Twin Rivers was a private community, (b) the public was not invited to use the property, (c) the plaintiffs voluntarily entered into private contracts granting the association the right to enact rules, and (d) the plaintiffs freedom of expression and expressive activities were not unreasonably restricted by a rule that required one sign per window. Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 929 A.2d 1060 (N.J. 2007). Significantly, the decision in Twin Rivers relied on the “time, manner, and place” analysis and did not preclude a future challenge based on First Amendment rights against the homeowners association: “Our holding does not suggest, however, that residents of a homeowner association may never successfully seek constitutional redress against a governing association that unreasonably infringes their free speech rights.” The court also advised that homeowners have other legal protections, such as those under business and agency relationships. Thus, the court suggested that prospective plaintiffs consider claims based on breach of fiduciary duty; arbitrary decision-making; and “fraudulent, self-dealing or unconscionable” actions when adopting the restrictions. Most significantly, the court concluded by stating, “Thus, restrictive covenants that unreasonably restrict speech–a right most substantial in our constitutional scheme–may be declared unenforceable as a matter of public policy.”
Your first line of action should be local. If your association imposes such restrictions, get involved in getting the restrictions overturned or modified. Remember, as a member, you have a voice in how rules are made, passed, promulgated, and modified. If you would like to test the waters and challenge your association’s restrictions in court, you could argue that your right to political expression cannot be contracted away in areas within your exclusive use and control. You also could lobby your elected state and federal representatives to rethink the Freedom to Display the American Flag Act of 2005 and state laws. For homeowner-friendly laws governing flag displays, see Arizona (33-1261; 33-1808), California Civil Code (1353.5), and Colorado (Colorado Common Interest Ownership Act (CCIOA), 38-33.3-106.5(1)(a)) state statutes for guidance.
The National League of Families POW/MIA Flag law, Section 902 of Title 36 of the U.S. Code (36 U.S.C. 902), authorizes specific government offices to display the flag. The law neither authorizes nor prohibits private citizens from displaying the flag.
Military Service Flags
Under Section 901 of Title 36, “Individuals Entitled To Display Service Flag.â€” A service flag approved by the Secretary of Defense may be displayed in a window of the place of residence of individuals who are members of the immediate family of an individual serving in the Armed Forces of the United States during any period of war or hostilities in which the Armed Forces of the United States are engaged.” (emphasis added).
For those seeking to argue that homeowners associations function as quasi-governmental actors, see the following articles: Symposium: A Festschrift in Honor of Dale A. Whitman: Trust and Community: The Common Interest Community as Metaphor and Paradox, 72 Mo. L. Rev. 1111 (2007); New Jersey Supreme Court Holds that Restrictions in Common Interest Community Do Not Violate the State’s Constitution. – Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 929 A.2d 1060 (N.J. 2007), 121 Harv. L. Rev. 644 (2007); Gregory C. Sisk, Uprooting the Pruneyard, 38 Rutgers L. J. 1145 (2007).
VII. What Does This Mean for Homeowners Associations?
The Freedom to Display the American Flag Act of 2005 is vulnerable to constitutional challenges under the Commerce Power, Due Process Clause, Equal Protection Clause, and First Amendment Freedom of Speech. Even if the federal law is upheld as constitutional, the associations restrictions are subject to challenges of being not narrowly tailored, overbroad, or vague. Court battles to resolve competing constitutional and property interests can be costly.
At minimum, homeowners associations should update their regulations to ensure that they do not completely prohibit the display of the U.S. flag in violation of federal law. Next, associations should consider that “time, manner, and place” restrictions generally are found to be valid when narrowly tailored. Reasonable restrictions based on safety and historical purposes likely will be upheld, assuming that the courts follow the precedent of satellite dishes. As such, the association likely could restrict the location, height, and size of the pole to display the flag, particularly when necessary to protect against falling poles, high wind hazards, and damage to historical structures.
Moreover, associations likely can regulate flag displays that interfere with the rights of others to enjoy or use their properties. For example, the association could require that flags not overhang balconies. Other potential areas include noise from chains slapping against poles, loud flapping of large flags or in high winds, and bright lights to illuminate the flag. Notably, lights are permitted under the U.S. Flag Code, particularly for night display. An association arguably could restrict lights at night to prevent interference with other members’ rights and still be consistent with the U.S. Flag Code. Moreover, 36 U.S.C. 901 protects the right to display an officially sanctioned military service flag in the window by immediate family members of uniformed Armed Forces personnel serving in armed conflict.
Restricting flag displays solely to governmental holidays is questionable. First, the standard of what constitutes a holiday is vague. Second, even if enumerated days are identified, the restriction may be deemed arbitrary and too burdensome on the rights of individuals, in violation of the spirit of federal law.
Thus, reasonable regulations would allow homeowners to display flags in areas within their exclusive use and control on any day of the year provided that they do not pose a safety hazard, endanger protected historic properties, or interfere with the rights of others and that they comply with the U.S. flag code. You also will need to consult relevant state law. To understand what might be considered “reasonable,” see Arizona (33-1261; 33-1808), California Civil Code (1353.5), and Colorado (Colorado Common Interest Ownership Act (CCIOA), 38-33.3-106.5(1)(a)) state statutes for guidance.
Happy 4th of July !
H.R. 2224, 16 Stat. 168
Signed by President Ulysses S. Grant on June 28, 1870
See the Library of Congress for more details about the history of July 4th.
Question: What about political signs? Can an H.O.A. in Florida really legally ban political signs?
State law governs the restrictions on political signs by HOAs and condominium associations. Thus, the answer as to whether the HOA has acted properly in its restrictions of political signs varies across the country.
For example, under Colorado law, homeowners associations cannot prohibit the display of political signs but may restrict the display according to time, manner, and place. Generally, a common regulation is to restrict the display to 45 days before and 7 days after the election and to limit the number, size, and placement of the political sign. Other states with similar legislation include Arizona, California, North Carolina, Texas, and Washington. Notably, Virginia considered similar legislation in 2007, but the bill was withdrawn. One issue for some communities in Virginia arises from existing, recorded covenants that prohibit the display of political signs or any signs. Such covenants may not be overturned by the HOAs and are enforceable under law because Virginia law does not require the covenant to be reasonable. While a rare situation, the problematic covenants highlight the respect and deference given by the courts to the individual’s freedom of contract.
Florida state law is silent on political signs. This silence allows homeowners associations to enacts rules and regulations because there is no prohibition.
As discussed above, the First Amendment right to freedom of expression protects against interference from public authorities but not from private actors, such as homeowners associations. Thus, an H.O.A. in Florida may enact regulations to restrict the display of political signs when visible from the exterior of the home, including in the window. The right of the H.O.A. stems from the right of individuals to engage in private contracts. Homeowners agreed to abide by the rules and entered into a contract expressly stating this agreement. If homeowners want to change the restriction, they currently need to become active in their respective HOAs. Creative arguments have been made that H.O.A.s should be considered more like public actors and thus subject to the First Amendment restrictions, but these arguments largely have not been embraced by the courts.
Notably, Florida state law regulates the ability to fly the U.S. flag and expressly states: “Any unit owner may display one portable, removable United States flag in a respectful way regardless of any declaration rules or requirements dealing with flags or decorations.” (Florida 71.113).
Question: What about a complete prohibition by the HOA board of political signs?
Generally, HOA rules need to be reasonable. If there is no prohibition under state law or local covenant, the HOA may enact reasonable rules and regulations to restrict the display. See the discussion above under content-neutral: time, manner, and place restrictions. A complete prohibition could be considered unreasonable. Even in jurisdictions where a prohibition would not be inconsistent with state law, the enactment of a complete prohibition by the HOA should be considered in light of the aggravation and costs of potential litigation.
Question: What enforcement is there for the U.S. Flag Code?
Section 3 of the U.S. Flag Code specifies penalties for specific acts related to advertising and mutilation of the flag conducted by any person “within the District of Columbia.” Penalties include a fine of up to $100 and/or imprisonment for not more than 30 days.
Sections 4 through 9 on the rules and customs of U.S. flag displays are more like guidelines and do not have enforcement measures. The statutory language includes verb tenses such as “should” and “may” rather than “shall” and “must.” Thus, the codification serves as a political expression of appropriate behavior. If your neighbor is flying the flag at night without lighting or illuminating it, there is no enforcement mechanism. Similarly, although the code recommends that the U.S. flag should not be embroidered, printed, or impressed on paper napkins or boxes, worn on articles of clothing, or be used as part of an athletic uniform, there is no enforcement.