Free Speech
The US Constitution allows many freedoms; however, common interest communities CAN impose limitations on certain forms of speech otherwise protected by First Amendment rights between citizens and 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. By the way, there's a critical difference between free speech and hate speech. Learn more by reading Synder v. Phelps emphasizing the importance of what, where and how expression occurs. View your state statutes here.
N.B. Anyone can be sued and some community associations are doing just that: Condo Wars: Boards can use defamation laws to stifle dissent
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). In Counterman v. Colorado (case 22-138 decided 06/28/23), SCOTUS ruled in favor of First Amendment protections for online threats.
SCOTUS delivered a ruling in 2015 via Docket 13-502: Reed v. Gilbert, AZ related to the question of the legality of municipalities regulating the content of signs. Listen to the audio and/or read the transcript. The Reed v. Gilbert decision hinges on First Amendment protections between citizens and government that, once again, do not directly translate to private covenants; however, multiple states have adopted statutory protections related to expression.
Multiple states provide CIC-specific statutory protections related to freedom of expression:
Arizona Statutes 33-1261 and 33-1808
Notwithstanding any provision in the condominium documents, an association shall not prohibit door-to-door political activity, including solicitations of support or opposition regarding candidates or ballot issues, and shall not prohibit the circulation of political petitions, including candidate nomination petitions or petitions in support of or opposition to an initiative, referendum or recall or other political issue on property normally open to visitors within the association, except that an association may do the following:
1. Restrict or prohibit door-to-door political activity regarding candidates or ballot issues from sunset to sunrise.
2. Require the prominent display of an identification tag for each person engaged in the activity, along with the prominent identification of the candidate or ballot issue that is the subject of the support or opposition.
Notwithstanding any provision in the condominium documents, an association shall not prohibit the indoor or outdoor display of a political sign by a unit owner by placement of a sign on that unit owner's property, including any limited common elements for that unit that are doors, walls or patios or other limited common elements that touch the unit, other than the roof. An association may prohibit the display of political signs as follows...
Florida Homeowner's Associations Act (720.304) and Condominiums (718.1224)
It is the intent of the Legislature to protect the right of parcel owners to exercise their rights to instruct their representatives and petition for redress of grievances before the various governmental entities of this state as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution.
The Legislature recognizes that “Strategic Lawsuits Against Public Participation” or “SLAPP” suits, as they are typically called, have occurred when members are sued by individuals, business entities, or governmental entities arising out of a parcel owner’s appearance and presentation before a governmental entity on matters related to the homeowners’ association. However, it is the public policy of this state that government entities, business organizations, and individuals not engage in SLAPP suits because such actions are inconsistent with the right of parcel owners to participate in the state’s institutions of government. Therefore, the Legislature finds and declares that prohibiting such lawsuits by governmental entities, business entities, and individuals against parcel owners who address matters concerning their homeowners’ association will preserve this fundamental state policy, preserve the constitutional rights of parcel owners, and assure the continuation of representative government in this state. It is the intent of the Legislature that such lawsuits be expeditiously disposed of by the courts.
A governmental entity, business organization, or individual in this state may not file or cause to be filed through its employees or agents any lawsuit, cause of action, claim, cross-claim, or counterclaim against a parcel owner without merit and solely because such parcel owner has exercised the right to instruct his or her representatives or the right to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution.
A parcel owner sued by a governmental entity, business organization, or individual in violation of this section has a right to an expeditious resolution of a claim that the suit is in violation of this section. A parcel owner may petition the court for an order dismissing the action or granting final judgment in favor of that parcel owner.
The petitioner may file a motion for summary judgment, together with supplemental affidavits, seeking a determination that the governmental entity’s, business organization’s, or individual’s lawsuit has been brought in violation of this section. The governmental entity, business organization, or individual shall thereafter file its response and any supplemental affidavits. As soon as practicable, the court shall set a hearing on the petitioner’s motion, which shall be held at the earliest possible time after the filing of the governmental entity’s, business organization’s or individual’s response.
The court may award the parcel owner sued by the governmental entity, business organization, or individual actual damages arising from the governmental entity’s, individual’s, or business organization’s violation of this section. A court may treble the damages awarded to a prevailing parcel owner and shall state the basis for the treble damages award in its judgment. The court shall award the prevailing party reasonable attorney’s fees and costs incurred in connection with a claim that an action was filed in violation of this section.
(d) Homeowners’ associations may not expend association funds in prosecuting a SLAPP suit against a parcel owner.
Illinois Condominium Property Act 765 ILCS 605/18.4
...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.
Nevada Anti-SLAPP Statute NRS 41.660
In Kosor v. Olympia Companies, LLC, the Nevada Supreme Court held that statements were "made in direct connection with an issue of public interest in a place open to the public or in a public forum." This was covered in here by Nevada Current on September 15, 2021 and is a fascinating story related indirectly to a Nevada Bill designed to chill homeowner criticism of HOAs, say opponents (April 15, 2023 - Reno Gazette Journal).
Chief Justice Kris Pickering wrote in the Nevada Supreme Court’s opinion (https://law.justia.com/cases/nevada/supreme-court/2020/75669.html) that among the allegedly defamatory statements Kosor made were assertions that “Olympia met with Clark County Commissioners in a ‘dark room’ and coerced them to act or vote in a particular manner, and that Olympia was ‘lining its pockets’ at the homeowners expense.”
Kosor, according to Pickering’s written opinion, alleged Olympia “violated the law and breached their fiduciary duties to the homeowners,” and posted on Nextdoor.com that “Olympia obtained a ‘lucrative agreement’ with Clark County by agreeing to shift expenses for the maintenance of public parks to the Southern Highlands homeowners.”
Kosor distributed literature to the Southern Highlands community and stated on his website that “Olympia’s actions have ‘already cost the homeowners millions,’” according to Pickering’s opinion.
Kosor argued his speech was protected by the state’s anti-SLAPP (Strategic Lawsuits Against Public Participation) law, designed to prevent individuals from filing defamation lawsuits in an attempt to silence their detractors’ constitutionally-protected speech about matters of public importance made in a public forum.
The Court agreed. Pickering wrote that Kosor’s statements were intended to “drive civic engagement” among his neighbors. What’s more, the Court determined Kosor’s online statements to his neighbors were made in a public forum. But the court stopped short of declaring all websites and chat rooms as public forums, adding in a footnote, “… the content of any particular post could affect whether the forum is, in fact, one for citizen engagement.” — Dana Gentry | Nevada Current | 09/15/2021
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.
Example Rules for Online Content
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 governing the use of association information technology systems and resources.
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
Commercial use (e.g. advertising a business, service, product for sale, etc.)
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.
CAI officially adopted a "political and non-commercial signs" policy position as of October 27, 2022.
In McCoy v. Johnson, the Board member plaintiffs were found to be “limited public figures" resulting in the dismissal of their defamation suit.
This is based in part on the AZ legislature’s extension of certain First Amendment-type protections to CIC members and does NOT imply that every director on an elected private board is automatically a “limited public figure.”
N.B. Arizona Supreme Court Rule 111(c) dictates that the Court of Appeals Division One decision is not precedential.
While the Massachusetts Supreme Court ruling below does not directly apply to CICs which, while acting as hyper-local governments, are distinctly separate from our federal, state and municipal governments, the concept of allowing constituents to express themselves without censorship is part of what makes democracy work.
Common interest communities should follow best practices of democratic governments across the world by conducting open meetings where individual homeowners have the right to speak their mind for at least 2 minutes in a designated forum BEFORE the Board engages in its own discourse and decision-making relative to the agenda at hand.
Anti-SLAPP statutes help prevent baseless lawsuits and, to a degree, ensure that homeowners are reasonably free to express their concerns and opinions.
Accountability, consistency, empathy, honesty, integrity and transparency are concepts that resonate differently across the spectrum of homeowners and volunteer leaders. Condo Connection advocates for reasonable decision-making based on civil, germane discourse that MUST necessarily incorporate the aforementioned qualities. Sometimes it takes a heated debate to ensure that obscurity, half-truths and outright falsehoods are rooted out in the course of making decisions. Don’t rob Peter to pay Paul by foregoing core tenets for the sake of being “civil.”
In a decision that jangled the nerves of some elected officials, the Massachusetts Supreme Judicial Court reaffirmed a basic liberty established by the founding fathers: the right to be rude at public meetings.
[The Court] struck down as unconstitutional Southborough’s “civility code” for public comment at meetings, which required “respectful and courteous” discourse “free of rude, personal or slanderous remarks.”
The Constitution of the Commonwealth of Massachusetts dates back to 1780: “There was nothing respectful or courteous about the public assemblies of the revolutionary period,” the court wrote in its opinion. “There was also much that was rude and personal, especially when it was directed at the representatives of the king and the king himself.”
The town’s insistence on civility “appears to cross the line into viewpoint discrimination: allowing lavish praise but disallowing harsh criticism of government officials,” the ruling said. “Although civility can and should be encouraged in political discourse,” the justices wrote, “it cannot be required.”
Residents’ Right to Be Rude Upheld by Massachusetts Supreme Court — Jenna Russell | NYT | 03/17/23
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. Subject to specific limitations (see Section 4).
Colorado signed House Bill 21-1310 (final bill) into law on July 2, 2021 ensuring that common interest communities cannot prohibit the display of signs or flags except under specific circumstances such as those displaying commercial messages and by regulating the location, size and other "objective" factors.
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.
Florida Homeowners Association Act & Condominium Act
Sec. 720.304(2)(a) — Any homeowner may display up to two portable, removable flags, in a respectful manner, not larger than 4 1/2 feet by 6 feet: the United States flag; the official flag of the State of Florida, flags representing the United States Army, Navy, Air Force, Marine Corps, Space Force, or Coast Guard, a POW-MIA flag, a first responder flag (law enforcement, firefighters, paramedics and EMTs, correctional officers, 911 public safety telecommunicators, APRNs, LPNs and RNs, statewide urban search and rescue, and federal law enforcement officers.
(b) Any homeowner may erect a freestanding flagpole no more than 20 feet high on any portion of the homeowner’s real property, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, if the flagpole does not obstruct sightlines at intersections and is not erected within or upon an easement.
The homeowner may further display in a respectful manner from that flagpole, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, one official United States flag, not larger than 41/2 feet by 6 feet, and may additionally display one official flag of from subsection (a). Such additional flag must be equal in size to or smaller than the United States flag. The flagpole and display are subject to all building codes, zoning setbacks, and other applicable governmental regulations, including, but not limited to, noise and lighting ordinances in the county or municipality in which the flagpole is erected and all setback and locational criteria contained in the governing documents.
(c) This subsection applies to all community development districts and homeowners’ associations, regardless of whether such homeowners’ associations are authorized to impose assessments that may become a lien on the parcel.
(3) Any owner prevented from exercising rights guaranteed by subsection (1) or subsection (2) may bring an action in the appropriate court of the county in which the alleged infringement occurred, and, upon favorable adjudication, the court shall enjoin the enforcement of any provision contained in any homeowners’ association document or rule that operates to deprive the owner of such rights.
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.
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.
Additional references: Arkansas Code Title 14-1-203, Arizona 33-1261, California Civil Code 4705, Colorado 38-33.3-106.5, Delaware Title 25 Subchapter VIII (2242), Kentucky 2.042, Michigan 559.156(a), Missouri (442.404), New Mexico (47-16-16)...
