The First Amendment protects freedom of speech, but may not include your front-lawn endorsement. Whether you’re a die-hard Trump fan, proudly tout #ImWithHer, or are taking the third-party approach, chances are you haven’t kept your presidential preference a secret. While some folks limit the political discourse to the kitchen table, others are a little bit more outspoken. But what are the private homeowners’ rights with regards to yard signs and political affiliation?
What Are the Rules Regarding Election-Related Yard Signs?
There’s a delicate balance between free speech and front yard aesthetics, and some recent, well-publicized clashes between homeowners and homeowners’ associations (HOAs) tasked with maintaining neighborhood uniformity have threatened to upset that balance.
First Amendment rights
Political speech, of course, is protected as a fundamental right under the First Amendment.
The truth is, the U.S. Supreme Court has specifically taken up the issue of political signage on a few occasions, emphatically describing political signage as a “decidedly unique and historical medium” that may have “no practical substitute.”
However, those Court rulings have involved private homeowners versus towns, municipalities, villages, and cities. In other words, private citizen versus the government.
Can precisely the same political speech protections be applied in the event involving a private homeowner versus a private HOA or condominium association, considering that the Constitution and Bill of Rights are meant to protect citizens from the government, and not necessarily from private actors?
The best way for a homeowner to defeat an HOA’s attempt to limit or prohibit political speech would be to debate that the association is a “state actor;” that is, a quasi-governmental body. In a series of cases in various jurisdictions, this argument has been somewhat successful, although there remains little precedent on the issue.
The U.S. Court of Appeals for the Eleventh Circuit, in particular, has repeatedly held that HOAs aren’t state actors for purposes of determining whether a constitutional infringement has taken place.
By contrast, the U.S. Supreme Court determined that an association can be a state actor if its activities are pervasively intertwined with the local government.
In any event, the chance to use First Amendment free speech protections would hinge on this idea of whether or not a specific jurisdiction considers the association to be a state actor (sometimes referred to as a “quasi-municipality”).
Factors that could play into that are:
Extent to which the neighborhood or subdivision is open to the general public
Whether the association is engaged with the local municipality
Influence of the association on municipal and local ordinances and regulations
Interrelation between the association as a private entity and the surrounding city or town
Lawful limitations on election signs
If a planned community manages to meet the necessary criteria, the community leadership may restrict political signage, provided the restrictions are implemented fairly and evenly.
Since freedom of speech is a fundamental right, any restrictions are subject to the “strict scrutiny” test of constitutionality. The restrictions must (1) be for a compelling, important interest and (2) advance that interest in the least restrictive way.
Also, any restriction on political speech must be content neutral, meaning the restriction needs to be for some reason other than “we just don’t like that candidate.”
There are a number of compelling interests that would pass constitutional muster, with the most important being traveler safety. An HOA would likely be within the law to apply any of the following restrictions:
Keeping signs away from the side of the street
Regulating the size and dimensions of signs
Prohibiting signs from obstructing the view of motorists, pedestrians, and cyclists
Disallowing any signs that contain blinking lights, mimic traffic signals, or could potentially cause confusion for motorists.
Assuming it implements content-neutral restrictions for legitimate safety reasons like those described above, the HOA really should be in the clear from a constitutional standpoint.
Furthermore, if the community functions as a polling location, the HOA could prohibit political signage within a certain radius of the polling place.
On the other hand, any political signage regulations that single out a specific political party, restrict certain candidates, or prohibit political speech altogether could possibly be an unconstitutional restraint on the freedom of speech – and may be discussed together with the HOA board as soon as possible.
If that doesn’t work, it could be time to consult an attorney.
What happens November 9?
For one thing, we’ll have elected a new president – so anything is quite possible, really.
With regards to political yard signs, however, residents will most likely be forced to get rid of the signage as soon as possible, often within a few days.
For HOAs and municipalities, lingering and stale political signs are an unsightly and unnecessary distraction. Residents should be ready to remove their political signs swiftly after the election, or pesky fines could follow.
Does your community have specific rules regarding yard signs? We would love to hear your feedback. To connect with us simply click here