Political Signs and Free Speech

With election season upon us, the topic of political signs is bound to come up at your association.  This time of year, political signs start popping up in the yards on individual lots and on common and limited common elements as well as in owner’s windows.

Many homeowner and condominium associations have deed restrictions on the display of signs.  For example, some association Declarations prohibit all signs, while others prohibit all signs except for “FOR SALE” signs. In both cases, political signs are prohibited.  But, owners sometimes claim that the association cannot enforce these deed restrictions because of federal rights to free speech.

Although the United States Supreme Court has held that a sign is a form of expression that is protected by the First Amendment, the Free Speech Clause of the First Amendment applies to a government entity’s attempts to limit free speech. In a community association, however, owners have contractually agreed to be bound by the community association deed restrictions and, therefore, have voluntarily given up some rights they would otherwise have, including the right to display signs in their yards and windows.

If an association wants to allow political signs in a community that has deed restrictions that specifically prohibit signs, the association must first pass an amendment to the governing documents to permit political signs.  An amendment could limit the size, number, and location of political signs and also provide a time frame for display (e.g. no more than 2 weeks prior to and no longer than 48 hours after the applicable election).  This type of amendment must be voted on and approved by the owners.

For associations that do not have a restriction expressly prohibiting signs, a board may make rules prohibiting political signs in the common elements but, depending on the governing documents, the board may or may not have broad enough rule making authority to prohibit political signs from being displayed on individual owner lots, in a homeowner association, or from being displayed in the owner’s windows.

Before your association takes enforcement action or adopts rules against political signs, the board should review the Declaration and Bylaws to determine if signs are prohibited and consult with the association’s legal counsel to discuss the restrictions and board rule making authority.