free speech

The US Constitution is an amazing construct that allows many freedoms; however, common interest communities CAN impose limitations on certain forms of speech that would otherwise be protected by the First Amendment between the people and our government. While the First Amendment does not directly protect speech rights within CICs, it is generally not the place for any individual or an association Board to attempt to censor speech or dictate what individuals say.

Adoption of the Uniform Common Interest Ownership Act and Uniform Condominium Act by individual state legislatures has driven an expansion of protections for certain forms of free speech within CICs, most notably related to displaying the Flag of the United States and political signs. Read about constitutionally protected free speech under the First Amendment in Congine v. Crivitz involving display of the flag of the United States upside down. In 2007, the Supreme Court of New Jersey upheld the right of CICs to restrict certain forms of speech. Read Committee for Better Twin Rivers v. Twin Rivers Homeowners Association (summary by Stark & Stark).

Furthermore, several state legislatures have taken up the call to provide CIC-specific statutory protections related to freedom of expression.

The Illinois Condominium Property Act

...no rule or regulation may impair any rights guaranteed by the First Amendment to the Constitution of the United States or Section 4 of Article I of the Illinois Constitution including, but not limited to, the free exercise of religion, nor may any rules or regulations conflict with the provisions of this Act or the condominium instruments. No rule or regulation shall prohibit any reasonable accommodation for religious practices, including the attachment of religiously mandated objects to the front-door area of a condominium unit.

Washington State Common Interest Community Ownership Act

The association may not prohibit display of signs regarding candidates for public or association office, or ballot issues, on or within a unit or limited common element, but the association may adopt rules governing the time, place, size, number, and manner of those displays.

Lest we not forget that freedom of expression comes with certain reasonable limits. Our confidentiality and disclosure page discusses WA Statute RCW 64.90.445(2)(b) which permits the Board to limit attendance for persons who disrupt a meeting. Below is an example of a fair and balanced criteria set governing the use of an electronic messaging forum.

It is not the Association’s practice to moderate content, so always use common sense when posting and be respectful of others. The following types of content are expressly prohibited:

  • Bullying and harassment

  • Cruel and insensitive language likely to cause emotional, physical and/or psychological harm

  • Graphic and/or violent depictions

  • Hate speech, credible threats and/or personal attacks

  • Incitement of violence

  • Information you know to be false and/or misleading, including the dissemination of false news

  • Profanity

  • Schemes intended to deceive and/or defraud

  • Solicitations for criminal activity and/or illegal substances

  • Spam (abusing our electronic system to artificially increase viewership such as posting the same or significantly similar content repeatedly more than once a week or and/or repeatedly distributing content for commercial and/or personal gain)

    • Correcting factual and/or grammatical error(s) in your posted content is not considered spam

  • Suicide and self-injury

  • Topics and/or images of a sexually explicit nature

  • Violations of privacy

For an in-depth read, consider Covenants, Conditions and Restrictions ... On Free Speech? First Amendment Rights in Common-Interest Communities by Adrienne Iwamoto Suarez. While Suarez concludes that, absent appropriate self-governance and statutes, "there is no sure way for speakers in and around CICs to have their First Amendment rights secured," she also identifies case law asserting that:

As mini-governments, community associations are charged with balancing the needs of their members..., openness of corporate practices versus individual privacy, as well as free speech.

...The management of the community association , as a quasi-governmental entity, [is] a question of vital public interest to its members. Therefore, living in a CIC is akin to living in any municipality. Free speech is crucial to the CIC's ability to govern itself.

...The courts may be the most important defenders of First Amendment rights on private property. Courts have the power to invalidate covenants that are unreasonable as against public policy, or that are unresponsive to the practical realities of new community living under the rule of CICs. Regardless of the form that speech protection takes, the ubiquity of CICs, their impact on the social and political lives of their residents, and the values of democracy and a free society dictate that First Amendment protections be preserved in the face of new challenges.

Also consider reading No Political Speech Allowed: Common Interest Developments, Homeowners Associations, and Restrictions on Free Speech by Lisa J. Chadderdon which examines the constitutionality and consequences of CIC restrictions on free speech.

Signs, Flags & Symbols

Carefully consider WHY before your CIC attempts to limit and/or prohibit free speech and/or the display of flags, signs and symbols.

The Freedom to Display the American Flag Act of 2005 prompted CIC statutory updates.

Section 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.

Colorado signed House Bill 21-1310 into law on July 2, 2021.

The gist: common interest communities in Colorado cannot prohibit the display of signs or flags except under specific circumstances such as those displaying commercial messages and by regulating the number, location, size and other "objective" factors. Read the final bill.

Illinois Condominium Property Act & Common Interest Community Association Act

Sec. 18.4 (h) and Sec. 1-70 ...a board may not prohibit the display of the American flag or a military flag, or both, on or within the limited common areas and facilities of a unit owner or on the immediately adjacent exterior of the building in which the unit of a unit owner is located. A board may adopt reasonable rules and regulations, consistent with Sections 4 through 10 of Chapter 1 of Title 4 of the United States Code, regarding the placement and manner of display of the Americanflag and a board may adopt reasonable rules and regulations regarding the placement and manner of display of a military flag. A board may not prohibit the installation of a flagpole for the display of the American flag or a military flag, or both, on or within the limited common areas and facilities of a unit owner or on the immediately adjacent exterior of the building in which the unit of a unit owner is located, but a board may adopt reasonable rules and regulations regarding the location and size of flagpoles.


Connecticut Common Interest Ownership Act

Sec. 47-261b (d) - A rule regulating display of the flag of the United States must be consistent with federal law. In addition, the association may not prohibit display, on a unit or on a limited common element adjoining a unit, of the flag of this state, or signs regarding candidates for public or association office or ballot questions, but the association may adopt rules governing the time, place, size, number and manner of those displays.

Washington Common Interest Community Ownership Act (RCW 64.90.510)

(1) An association may not prohibit display of the flag of the United States, or the flag of Washington state, on or within a unit or a limited common element, except that an association may adopt reasonable restrictions pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the association. For purposes of this section, "flag of the United States" means the flag of the United States as described in 4 U.S.C. Sec. 1 et seq. that is made of fabric, cloth, or paper. "Flag of the United States" does not mean a flag, depiction, or emblem made of lights, paint, roofing, siding, paving materials, flora, or balloons, or of any similar building, landscaping, or decorative components.

VIEW additional references: Arkansas Code Title 14-1-203, Arizona Statute 33-1261, California Civil Code 4705, Delaware Title 25 Subchapter VIII (2242), Florida 718.113(4), Kentucky 2.042 ...

FREE-SPEECH REFERENCES