Is There a Line Between Free Speech and HOA Regulations?

INTRODUCTION

In the United States, the right to political expression is a cornerstone of democracy, protected under the First Amendment of the Constitution. Yet, for millions of homeowners living in communities governed by homeowners associations (HOAs), this fundamental right can clash with HOA rules designed to maintain uniformity and order. This tension is particularly pronounced in California, where diverse political views and high levels of civic engagement often bring these issues to the forefront.

This article explores the intersection of political expression and HOA regulations and how many HOAs in California frequently overreach in their attempts to regulate political signage, flags, and other forms of expression. It also provides practical advice for homeowners seeking to assert their rights.

THE IMPORTANCE OF POLITICAL EXPRESSION IN RESIDENTIAL NEIGHBORHOODS

Political expression in residential neighborhoods is not just about yard signs or flags. It’s about homeowners participating in public discourse and engaging with their neighbors on matters of shared importance. Political signs, for instance, often serve as catalysts for community discussions and can even foster greater civic participation.

In California, where issues such as housing affordability, environmental regulation, and social justice often dominate public debates, political expression of all kinds can be particularly important. And yet, HOAs frequently impose restrictive rules under the guise of maintaining community aesthetics or preventing conflicts among neighbors. While such concerns may be legitimate to some extent, they cannot justify infringing on fundamental rights.

COMMON HOA RESTRICTIONS ON POLITICAL EXPRESSION

HOAs often adopt rules that limit or outright prohibit political signs, flags, and similar displays, and those rules can take several forms—whether legal or not—including:

1. Size and Placement Limits. HOAs often pass rules restricting the size of political signs or attempt to dictate where they can be placed on a homeowner’s property (often relegating them, for example, to less visible areas).
2. Content Restrictions. Some HOAs attempt to regulate the content of political signs, prohibiting messages they deem controversial or divisive.
3. Time Limitations. HOAs often impose time restrictions, such as banning signs outside of election seasons or requiring their removal within days after an election.
4. Flag Restrictions. Many HOAs impose rules limiting the display of flags, including political flags or those representing social movements, under the pretext of maintaining uniformity.

HOAs CANNOT IGNORE YOUR FREE SPEECH RIGHTS

Fortunately for homeowners, the law actually provides some robust protections for political expression in HOA-governed communities. Take the Davis-Stirling Act—the set of statutes found in the Civil Code that govern California HOAs. It contains a myriad of protections for homeowners to exercise their non-commercial free speech rights, such as:

1. Civil Code § 4710. Subject to a couple of reasonable exceptions, this law expressly prohibits HOAs from interfering with a homeowner’s right to post or display “noncommercial signs, posters, flags, or banners on or in a member’s separate interest.” Civil Code section 4710 goes on to specify that the applicable signs, posters, et al. can be made of a variety of materials (e.g., paper, cardboard, cloth, plastic, etc.) and may be displayed from the “yard, window, door, balcony, or outside wall of the separate interest.” Civil Code section 4710 does allow HOAs to limit the size of signs/posters and flags/banners. HOAs may ban any (a) signs/posters larger than 9 square feet and (b) flags/banners larger than 15 square feet. Although this law is silent as to whether an HOA can limit the number of signs, posters, et al., because of the size limitations set forth in the statute, some argue that it implies an HOA’s right to control the number of such postings/displays. The issue has not, however, been addressed by the courts. What has, however, been addressed, is the fact that HOAs cannot limit an HOA member’s right to post political signs outside of a particular election season.
2. Civil Code § 4515. To protect HOA members’ rights to “exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes,” this law protects the rights of HOA members to peacefully assemble and meet with other members, residents, and guests for purposes related to (a) living in a community interest development, (b) association elections, (c) elections to public office, or (d) the initiative, referendum, or recall process. This statute also protects HOA members’ rights to invite public officials and political candidates to a member’s home or an appropriate common area amenity (e.g., a clubhouse) to speak about matters of “public interest.” HOAs are also prohibited from banning members/residents from canvassing or petitioning other members (provided that such activities are done in a reasonable manner and during reasonable hours), or from preventing HOA members from using social media for such purposes. The statute has teeth too because it contains a $500 penalty for HOAs that violate a member’s right granted under this particular statute).
3. Civil Code § 4705. This law ensures that HOA members can display United States flags on their property (or in the common area designated for their exclusive use, such as a balcony). The law limits protected flags to those made of fabric, cloth, or paper “displayed from a staff or pole or in a window,” and specifically excludes flags made of lights, paint roofing, siding, paving materials, plants, or balloons (or of any similar building, landscaping, or decorative components). Whether a flag made of wood is protected under this statute is an issue that we’re currently investigating on behalf of a client. HOAs can, however, impose reasonable restrictions, such as hours of display, height limitations, lighting, etc.
4. Civil Code § 4706. This statute prohibits HOAs from preventing members/residents from displaying or affixing religious items to their doors or door frames (e.g., Mezuzahs, crosses, wreaths, and maybe even Christmas lights).

HOA OVERREACH MATTERS

HOA overreach on political expression is not just a matter of inconvenience because it has broader implications for democracy and community cohesion. When homeowners are silenced, it stifles local discourse and creates a culture of conformity. It also alienates homeowners, erodes trust between homeowners and boards, and triggers lawsuits, which cost HOAs a lot of money and time.

PRACTICAL TIPS FOR HOMEOWNERS

If you’re a California homeowner facing restrictive HOA rules on political expression, there are several steps that you can take to protect your rights:

1. Know Your Rights. Familiarize yourself with the laws discussed above, as well as your HOA’s governing documents. Understanding the relevant rules is crucial to your successfully navigating the applicable legal framework within which you will assert your rights.
2. Be Willing to Challenge Your HOA. If your HOA sends you a letter demanding that you take down something that you know that you have a right to display, respond and explain why you’re correct and they’re wrong. Educate your board on the legal requirements.
3. Be Willing to Demand Legal Compliance From Your HOA. As a close corollary to the prior tip, if your HOA’s governing documents, for example, contain free speech-related prohibitions that you know to be illegal, inform them, and request that the governing documents be amended to conform to the law.
4. Document Everything in Writing. Keep records of all communications with your HOA, including emails, letters, and meeting minutes. Documentation can be invaluable if you need to escalate the issue.
5. Seek Legal Assistance. If your HOA refuses to comply with state laws, consult with an attorney specializing in HOA disputes—such as the attorneys at MBK Chapman. A strongly worded demand letter or legal action may be necessary to resolve the issue.

CONCLUDING THOUGHTS

The right to political expression is too important to be curtailed by overzealous HOA regulations. While maintaining community harmony is a legitimate goal, it should not come at the expense of homeowners’ fundamental rights. California’s Davis-Stirling Act provides strong protections for political expression, but enforcement often depends on homeowners standing up for their rights.

By staying informed, engaging constructively with HOA boards, and seeking legal recourse when necessary, homeowners can ensure that their voices are heard and that their rights are protected.