Well, it’s that time of year when signs start popping up in neighborhoods as election day draws near. In neighborhoods governed by a homeowner or condominium association, boards of directors are sometimes asked to enforce sign restrictions when one neighbor complains about another’s political sign (and probably, the neighbor’s choice of candidate).
A person’s first response typically is “I have the right to free speech and you can’t stop me from posting my political sign on my property!” However, is that the end of the discussion? This blog post reviews a community association’s rights and responsibilities regarding political signs.
Localities have a limited ability to restrict political signs placed upon private property
The United States Supreme Court has ruled that “signs are a form of expression protected by the Free Speech Clause” of the United States Constitution. However, for a variety of reasons, municipalities may regulate the signs, including the physical characteristics (e.g. size) of signs. Virginia has a statute that permits localities to restrict the “size, height, area, bulk, [and] location” of signs. The Virginia Attorney General issued an opinion in response to a question about the validity of local ordinances that place greater size restrictions on political signs than other temporary signs. The AG wrote that
It is my opinion that any zoning ordinance that places heavier burdens or greater restrictions on temporary political signs than are placed on any other classification of temporary sign is pre-empted by state law, thereby rendering any such ordinance invalid.
Therefore, it is clear that municipalities cannot ban political signs, but can place certain limitations as to the physical characteristics of those signs.
A Community Association probably can restrict and prohibit political signs if its governing documents restrict signs
The First Amendment of the United States Constitution applies to attempts taken by a government entity to restrict speech. Those provisions do not apply to community associations, do they?
Generally speaking, the answer is “No.” Free speech protections do not generally apply to restrictions taken by private entities, like a community association. However, although Virginia courts have not addressed this specific issue, courts in other states have been somewhat divided on whether an HOA’s restriction on political signs constitutes sufficient state action to violate an individual’s constitutional rights.
For instance, the New Jersey Supreme Court relied upon its state constitution to permit political signs, finding “an individual’s affirmative right to speak freely ‘is protected not only from abridgement by government, but also from unreasonably restrictive and oppressive conduct by private entities.’” Taking a different approach but with a similar result, the Massachusetts Supreme Court found that because a condominium was subject to a state statute, the association’s prohibition on certain signs constituted sufficient “state action” to violate the First Amendment of the United States Constitution.
On the other side of the argument, the Kansas Supreme Court held “There is nothing constitutionally impermissible per se in a private agreement restricting signs in a residential neighborhood, and enforcement thereof does not constitute improper state action.” Similarly, the Pennsylvania Superior Court held that because a condominium association was a private organization, the association’s enforcement of its declaration’s sign provisions was “not an impermissible infringement of free speech in violation of the United States Constitution.”
Eventually, the Virginia General Assembly may take action to limit a community association’s ability to restrict temporary political signs. During the 2012 General Assembly, House Bill 1008 proposed to add language to the Virginia Property Owners’ Association Act and the Virginia Condominium Act to prohibit the declaration, or any rule or regulation adopted thereto, from infringing upon a property owner’s “constitutionally protected right of freedom of speech.” The proposed bill provided an association with the ability to “establish reasonable time, place, and manner restrictions on such property provided such restrictions are necessary to protect a substantial interest” of the association. The bill was continued to the 2013 session of the General Assembly.
Until then, unless the General Assembly or the Virginia Supreme Court determine otherwise, a community association can continue to enforce its governing documents, if those documents permit the regulation and restriction of signs. However, before implementing any restriction on political signs, or assessing charges against a homeowner who displays such a sign, associations would be well-advised to contact their experienced HOA attorney.
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