With politics and world events heating up, people have a lot to say and want to publish it out loud. If they live in a coop, condo, HOA or other community association, however, can a board restrict their free speech? John wants to put a “Black Lives Matter” sign on the lawn of his HOA home. Tim prefers an “All Lives Matter” sign. Sarah wants to put up a Trump Pence sign and Tara would prefer a Biden Harris sign or the above “Everybody Sucks” sign. In a high-rise condo or coop, the Jones family wants to put a sign with their political views in their window and so do 100 other families that live in the building with differing views. Association boards would likely want to govern these types of actions or one could imagine a huge mess of signage and neighbor against neighbor disputes and escalations.
Free speech? First Amendment right under the Constitution? Not unless the association seeking to govern is considered a “state actor”. There are all sorts of legal cases regarding what is state action covered by the Constitution. If there is a “state actor” the First Amendment prevents the state actor from limiting the right to freedom of speech unless such limitations are narrowly tailored and otherwise proper. This is especially true when the speech that is the subject of regulation is political in nature.
Those trying to argue against board regulation may come up with creative ways of arguing that the regulation is unenforceable or inappropriate. For example, its on the HOA member’s lawn which she owns as opposed to common element. The condo owner is responsible for windows so putting the sign in his window is on his property which you can’t govern. They can try, but as long as the proposed rule is applied consistently and without discrimination (a No Trump sign rule or a No Biden sign rule won’t pass muster) and the rule is within the board’s authority under the governing documents to make and is in the best interests of the entire association community, as opposed to the self interest of a particular board member, the board action should be enforceable and/or defensible. The business judgment rule is really helpful here. That said, there are enough moving considerations for boards that want to govern in this area to seek counsel from their attorney to make sure they are within their right to do so.
