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 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:
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.
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.
(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.