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Subject: Political Flags
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Author Messages
EdwardL3
(Florida)

Posts:5


06/12/2020 6:59 AM  
There is nothing in rules at our condo about political flags but someone is flying one now that I find offensive is there anything I can do? I am in Florida
AugustinD


Posts:3495


06/12/2020 7:17 AM  
Posted By EdwardL3 on 06/12/2020 6:59 AM
There is nothing in rules at our condo about political flags but someone is flying one now that I find offensive is there anything I can do? I am in Florida
No. Without a HOA covenant that, say, prohibits flags, the First Amendment protects this person's right to speak his or her mind with a flag.
EdwardL3
(Florida)

Posts:5


06/12/2020 7:25 AM  
UGH
CathyA3
(Ohio)

Posts:1077


06/12/2020 7:50 AM  
I agree with Augustin's comment about needing to have language in your CC&Rs prohibiting flags.

One quibble about the First Amendment: the amendment says that the *federal government* may not interfere with a person's right to speak, but it says nothing about what an HOA may or may not do. As far as I know, court opinions have been mixed. Some say that HOAs are private property and may regulate speech - others have said that HOAs are quasi-governmental which may possibly subject them to "free speech" regulations.

Condos have an easier time since signs would probably be placed on common area, giving boards the right to regulate them. That said, our attorney recommended that we limit the length of time that the signs may be displayed but not get into any discussions about content unless the sign could violate Fair Housing laws.
AugustinD


Posts:3495


06/12/2020 8:03 AM  
Posted By CathyA3 on 06/12/2020 7:50 AM
Some say that HOAs are private property and may regulate speech -
But for the archives, and as I believe CathyA3 knows, only when there is a covenant that applies and applies well. Said covenants are pretty rare. Some have been thrown out. E.g. a covenant prohibiting all flags now must permit people to fly the U. S. flag, though pursuant to HOA guidelines.

A HOA member habitually uttering, say, racist remarks at a neighbor, may result in a Fair Housing Act claim of a hostile environment on the basis of race. HUD says said claim under some circumstances may place a burden on the HOA to take action.
MelissaP1
(Alabama)

Posts:9413


06/12/2020 8:14 AM  
I don't believe a flag is "offensive". It is the thoughts/feelings someone has about a flag is. If you get offended by a flag then it is within you. Get over it or rise above it.

My opinion on flying flags in a HOA should not be an individual thing. It should be for the whole HOA. That is why had a HOA buy a pole/flag and put it at the front entrance. We ALL fly under the same flag. Plus the fact there are "rules" of flying a flag on it's own. The HOA would need to incorporate that into their violations. How offended would that be to be told you need to take the flag in at night or put a light on it?

It is a flag. It will wear out on it's own.

Former HOA President
KerryL1
(California)

Posts:7333


06/12/2020 8:41 AM  
We really need to know where this flag is, Edward. Is it attached to a flagpole? Is the flagpole installed on the person's balcony? Or in your condo's common area?

When you write "flying" it doesn't sound like it's in the window of the person's separate interest condo. Our condo rules permit such a flag, but we limit the size.

Our balconies are exclusive use ("limited use") common area. We must permit the US flag (on them) on them but it may not be permanently attached to any part of the balcony's structure, e.g., railing ceiling, etc.

Please describe the location of this political flag and how it is attached.
FredS7
(Arizona)

Posts:926


06/12/2020 1:01 PM  
Some things might be best to stay out of, because they may go away if ignored. And if not ignored, turn into a federal court case.

By the way, I saw an amusing political sign recently.

ANY FUNCTIONING ADULT 2020

I suppose some might find it offensive.

MarkW18


Posts:1195


06/12/2020 1:06 PM  
I would bet a year salary the flag is a Trump 2020. It doesn't have the same rights as a US or State flag.
GeorgeS21
(Florida)

Posts:2816


06/12/2020 4:04 PM  
Not for profit corporations can limit pretty much anything ... it’s easy with specific language in governing docs, but some general provisions are sufficient to do so.

This has zero to do with First Amendment rights.
KerryL1
(California)

Posts:7333


06/12/2020 6:43 PM  
I think you're probably right, George. But we don't know where this "flag" is, common area ? Exclusive use common area? Separate interest yard? In our condo HOA, residents may post any non-comercial sign, flag or banner in their separate interest windows -- not to exceed a certain size--that they wish.
LetA
(Nevada)

Posts:989


06/13/2020 6:04 PM  
Posted By EdwardL3 on 06/12/2020 7:25 AM
UGH




Do you want to be explaining to your local ombudsman why you want to abridge someones Constitutional Rights? Do you want to write that check from your HOA for the fine you HOA will be assessed?
LetA
(Nevada)

Posts:989


06/13/2020 6:12 PM  
Our documents limit political signs to 24'x36" kind of mum on flags, refers to the US Flag code.
GeorgeS21
(Florida)

Posts:2816


06/14/2020 5:04 AM  
Smiling ... again, corporations can restrict many things, even some guaranteed by the US Constitution.
AugustinD


Posts:3495


06/14/2020 5:53 AM  
Posted By GeorgeS21 on 06/14/2020 5:04 AM
corporations can restrict many things, even some guaranteed by the US Constitution.
Yup, but covenants are what restrict things in HOAs. Even if the membership voted to create a covenant that prohibited, say, criticism of the HOA posted on a web site, a court would find this unconstitutional.
MelissaP1
(Alabama)

Posts:9413


06/14/2020 6:04 AM  
Wouldn't a flag that supports a political candidate just be considered "Decoration"? Seems to me there are dedicated and recognized "flags" like the Federal, State, and Local. I think those flags with "Don't tread on me" are more decoration than recognized as a real flag. Most sold in Tourist gift shops. They are historic but not necessarily official.

So would flying a flag with a candidate or slogan just fall under décor?

Former HOA President
CathyA3
(Ohio)

Posts:1077


06/14/2020 6:28 AM  
Posted By AugustinD on 06/14/2020 5:53 AM
Posted By GeorgeS21 on 06/14/2020 5:04 AM
corporations can restrict many things, even some guaranteed by the US Constitution.
Yup, but covenants are what restrict things in HOAs. Even if the membership voted to create a covenant that prohibited, say, criticism of the HOA posted on a web site, a court would find this unconstitutional.




You may be correct about what a court would do, but in a case like this it would be the Terms of Service of the particular web site that would limit the person's speech, not the HOA itself (no matter what the HOA would like to do - and I agree that a covenant like that would be useless).

For instance, this web site's rules forbid/discourage posting identifiable information about specific HOAs, so I imagine if someone here repeatedly posted criticism about their HOA or the board members by name, something would be done about it.

And even in the places where the First Amendment applies, it still has limitations (eg. laws against defamation or the inciting of violence). Similarly, even if a condo association's CC&Rs are silent about signs and flags, Fair Housing laws would require the board to do something about ones that create a hostile environment for protected classes. And you always have the "nuisance" restrictions, although they're vague enough to make them hard to enforce.
CathyA3
(Ohio)

Posts:1077


06/14/2020 6:34 AM  
Posted By MelissaP1 on 06/14/2020 6:04 AM
Wouldn't a flag that supports a political candidate just be considered "Decoration"? Seems to me there are dedicated and recognized "flags" like the Federal, State, and Local. I think those flags with "Don't tread on me" are more decoration than recognized as a real flag. Most sold in Tourist gift shops. They are historic but not necessarily official.

So would flying a flag with a candidate or slogan just fall under décor?




Maybe. But my condo association restricts even things like that since they would be displayed on common area. The only positive thing about political signs is that they tend to be self-limiting - they disappear after the election.
AugustinD


Posts:3495


06/14/2020 7:11 AM  
Posted By CathyA3 on 06/14/2020 6:28 AM
Posted By AugustinD on 06/14/2020 5:53 AM
Posted By GeorgeS21 on 06/14/2020 5:04 AM
corporations can restrict many things, even some guaranteed by the US Constitution.
Yup, but covenants are what restrict things in HOAs. Even if the membership voted to create a covenant that prohibited, say, criticism of the HOA posted on a web site, a court would find this unconstitutional.


You may be correct about what a court would do, but in a case like this it would be the Terms of Service of the particular web site that would limit the person's speech,
Sure, but we are talking about what expression a HOA may lawfully prohibit. Of course this issue has become particularly interesting (and loaded, IMO) in the last couple of years, as the Trumpster has used media to disseminate nonsense, some of it indeed inciting violence or likely to cause people "harm." (In quotations because I am talking about the many exacting legal permutations of what "harm" is.) Twitter, Facebook et al. have been taken to task for publishing (via its users' posts) non-facts. It is a loaded issue to me (to say the least), because when it comes to ideas well-debated in public forums, the response to non-facts should be to point out that this is nonsense. (On the third hand and to totally digress, I am one of those people who resents the ACLU spending donors' money to defend, for example, the Ku Klux Klan's right to effin' "peaceably" protest. The Klan can afford to pay its own d-mn lawyer.)

I agree that, when someone posts something to a web site, a HOA has the option to sue for defamation or possibly inciting violence when someone posts something to a web site. The person who posted the alleged defamatory or violence-promoting statements can then counter-sue using (in some states) SLAPP laws or the usual defenses to defamation.

I think it's important for HOA members to be able to start their own online forums that are constructively critical of a board. I think that, when a board is breaking the law in egregious ways that cause property damage; jeopardize people's safety; and the like, having the right to speak out against this (yes, quasi-governmental) conduct goes to the core of why the First Amendment exists.



CathyA3
(Ohio)

Posts:1077


06/14/2020 8:36 AM  
Posted By AugustinD on 06/14/2020 7:11 AM


I think it's important for HOA members to be able to start their own online forums that are constructively critical of a board. I think that, when a board is breaking the law in egregious ways that cause property damage; jeopardize people's safety; and the like, having the right to speak out against this (yes, quasi-governmental) conduct goes to the core of why the First Amendment exists.




The operative phrase here is "constructively critical" and I agree with you. Unfortunately online forums provide a platform for the vocational dissidents, and discussion can quickly devolve into false accusations, sniping and gripe sessions. So you would still need to have effective terms of service that are enforced and probably a moderator (which will require time and energy to police the posts and will lead to accusations of censorship and whatnot, I guarantee it). I wish I weren't so cynical (realistic?) about this stuff, but there is a reason social media can be such a cesspit. And people seem to be extra cranky these days (I blame stress from the pandemic).
AugustinD


Posts:3495


06/14/2020 11:17 AM  
Posted By CathyA3 on 06/14/2020 8:36 AM
Posted By AugustinD on 06/14/2020 7:11 AM


I think it's important for HOA members to be able to start their own online forums that are constructively critical of a board. I think that, when a board is breaking the law in egregious ways that cause property damage; jeopardize people's safety; and the like, having the right to speak out against this (yes, quasi-governmental) conduct goes to the core of why the First Amendment exists.


The operative phrase here is "constructively critical" and I agree with you. Unfortunately online forums provide a platform for the vocational dissidents, and discussion can quickly devolve into false accusations, sniping and gripe sessions.
The "constructively critical" is the goal. As I think you know, the legal truth is that posts to an unmoderated forum where people lie, but do not know they are lying, is generally lawful. It's the price of the marketplace of ideas when it comes to important issues.

Posted By CathyA3 on 06/14/2020 8:36 AM
So you would still need to have effective terms of service that are enforced and probably a moderator
I think the need for T.O.S. and a moderator depends on how seriously the sponsor of the online forum wants to be taken.

I know many boards do not like criticism posted to online forums. Some of these boards are genuinely breaking the law and jeopardizing property. Other boards are doing everything right and facing an ignorant member. E.g. I saw a HOA member claim, pro se in his lawsuit's brief, that the imposition of the covenant-authorized monthly assessment was a violation of the 13th amendment to the Constitution (the amendment prohibiting slavery).

Of course I do not want good people driven off boards because some ignorant bad apples are spreading falsehoods. Nor do I want boards getting away with embezzlement, not maintaining common areas such that sewage is backing up into people's homes, harassment and the like. Then there is the important reality that boards can use members' money to put out the boards' own lies, via the attorney and manager publications. Do you know that the typical ignorant member thinks that the HOA attorney is always Thee Authority on the law? When in fact the HOA attorney is a paid mouthpiece for a board, whose duty is to defend the board under nearly all circumstances.

Members do not have these same, important advantages.

Just saying, for the archives.
CathyA3
(Ohio)

Posts:1077


06/14/2020 12:30 PM  
I hear what you're saying about HOA attorneys. We must have unusually good ones - they will tell us, unsolicited, if they think we're barking up the wrong tree and need to rethink our position, or that we'd be wasting association money pursuing something that would be better let go. They consider it their job to keep us out of court ("communicate, don't litigate" is one of their favorite sayings). I'm pretty sure they would not knowingly support a board's lies, if for no other reason than lies are often uncovered and create even bigger messes.
GenoS
(Florida)

Posts:3867


06/14/2020 1:49 PM  
Posted By AugustinD on 06/14/2020 11:17 AM
... I know many boards do not like criticism posted to online forums.

Amen to that. I may have slipped up a few times over the years, but that's precisely why I assiduously avoid posting too many details about my HOA or my person on here. I don't believe anyone that lives (or has lived) in my HOA has ever heard of HOATalk, and I'd like to keep it that way.

There's still talk in the neighborhood about the last time a major project was completed and how numerous people believe that a board member at the time was arranging for kickbacks that ended up paying for his and his wife's 14-day Caribbean cruise. One homeowner wrote an anonymous letter to the editor of the local newspaper that got published. It named the HOA and many thought it did harm to the community by publicizing the dirty laundry.
CathyA3
(Ohio)

Posts:1077


06/14/2020 2:51 PM  
Posted By GenoS on 06/14/2020 1:49 PM
... snippage...
There's still talk in the neighborhood about the last time a major project was completed and how numerous people believe that a board member at the time was arranging for kickbacks that ended up paying for his and his wife's 14-day Caribbean cruise. One homeowner wrote an anonymous letter to the editor of the local newspaper that got published. It named the HOA and many thought it did harm to the community by publicizing the dirty laundry.




Wow, I'm surprised the newspaper published an anonymous letter that was basically hearsay and potentially defamatory as well. Aren't they liable for what is published in their paper?

This illustrates what can happen if an HOA hosts an online forum. One person's constructive criticism is another person's dirty laundry, and anything online can damage a community's reputation even if it's only seen by owners in that community. At the very least it has to sour their opinions. This is one reason our attorney strongly discourages use of social media or any online platform that allows owners unfettered spouting. Because spout they will, and the association is legally responsible for any content appearing on that platform (think defamatory statements, copyright violations, harassment of other owners, etc.).)
GenoS
(Florida)

Posts:3867


06/14/2020 4:47 PM  
Posted By CathyA3 on 06/14/2020 2:51 PM
Wow, I'm surprised the newspaper published an anonymous letter that was basically hearsay and potentially defamatory as well. Aren't they liable for what is published in their paper?

I've never seen it myself, and it happened several years before I moved in. I think, from what I've heard (and that is indeed hearsay), it mentioned the name of the HOA, the allegation that someone was getting kickbacks, and that there were those who believed the allegation was true.

I don't think news media are liable for what people say in Letters to the Editor (with a proper disclaimer?), but I'm not sure. I do know there's plenty of malarky that appears in print daily.
MichaelS56
(Minnesota)

Posts:2


06/20/2020 4:28 PM  
Please keep in mind the federal law that allows the American flag, however a Board can adopt a rule in your Rules and Regulations that could determine type and size of flag. Our Association allows for American and armed services only.
EricB13
(Illinois)

Posts:11


06/22/2020 9:02 PM  
The only way a board can legally get away with prohibiting flags is if they ban ALL flags (except the American flag). I don't know about military flag case law, but I would have to think that falls into the first bucket of banning all flags.
JerryD5
(Colorado)

Posts:210


07/08/2020 7:27 PM  
There is an ongoing case in the Denver CO metro area where a police chaplain is displaying a Blue Lives Matter flag (a US Flag with a blue stripe). His HOA is demanding that he removes it all the while they are allowing other flags such as the rainbow pride flag, various sport teams flags, Black Lives Matter flag and various military flags. He is fighting back saying he is being singled out. I suspect that he will win against the HOA only because they haven't said anything in the past about the other flags. The final results will either be: all flags (except for the US flag) will be removed/prohibited or they will back down and let him fly his flag. He has a high-powered lawyer representing him (paid for by a national law enforcement organization).

I don't get why HOAs get on this tangent of singling out flags. I get it if they are on common property but who cares if they are on the owner's property?
JohnT38
(South Carolina)

Posts:337


07/09/2020 3:45 AM  
Posted By JerryD5 on 07/08/2020 7:27 PM
There is an ongoing case in the Denver CO metro area where a police chaplain is displaying a Blue Lives Matter flag (a US Flag with a blue stripe). His HOA is demanding that he removes it all the while they are allowing other flags such as the rainbow pride flag, various sport teams flags, Black Lives Matter flag and various military flags. He is fighting back saying he is being singled out. I suspect that he will win against the HOA only because they haven't said anything in the past about the other flags. The final results will either be: all flags (except for the US flag) will be removed/prohibited or they will back down and let him fly his flag. He has a high-powered lawyer representing him (paid for by a national law enforcement organization).

I don't get why HOAs get on this tangent of singling out flags. I get it if they are on common property but who cares if they are on the owner's property?




Here's a link to the story: https://kdvr.com/news/local/hoa-tells-local-police-chaplain-to-remove-thin-blue-line-flag/

CathyA3
(Ohio)

Posts:1077


07/09/2020 5:02 AM  
Posted By JerryD5 on 07/08/2020 7:27 PM
...
I don't get why HOAs get on this tangent of singling out flags. I get it if they are on common property but who cares if they are on the owner's property?



I imagine it has to do with the current tense political climate and the possibility of neighbors deliberately trying to offend or create a "hostile environment" that may make an HOA the target of a Fair Housing complaint. There is a reason many CC&Rs regulate the display of these items - not to mention the fact that after a while the neighborhood begins to resemble the side of a highway with a thicket of signs.

When I was on the board, I *hated* stuff like this. But we had no choice about dealing with it since our CC&Rs have a sign restriction and anything that flirts with a possible Fair Housing violation needs attention. I agree that it's a lot harder to deal with signs in an HOA with privately owned lots vs. a condo where everything outside in common area.
JerryD5
(Colorado)

Posts:210


07/10/2020 6:16 AM  
I get that it might be in their CCRs. It is the supposed selective enforcement that I have an issue with it. I am glad we never really had to deal with this in our HOA when I was on the board. Though the HOA up the street made national news with their attempt to prohibit sidewalk chalk by kids.
CathyA3
(Ohio)

Posts:1077


07/10/2020 7:24 AM  
Posted By JerryD5 on 07/10/2020 6:16 AM
I get that it might be in their CCRs. It is the supposed selective enforcement that I have an issue with it. I am glad we never really had to deal with this in our HOA when I was on the board. Though the HOA up the street made national news with their attempt to prohibit sidewalk chalk by kids.



The issue with these flags is that some can be considered harmless or "decoration", while others could be viewed as creating a hostile environment by a court. A condo community with a restriction on all yard junk aside from one (1) "for sale" or "for rent" sign has it easy. But in an HOA without any explicit restriction, a board that is trying to balance being reasonable vs. taking a responsible approach to possible Fair Housing violations is really stuck. How do they not enforce selectively?

JerryD5
(Colorado)

Posts:210


07/10/2020 11:11 AM  
A good example is if they allow BLM flags and not the Thin Blue Line flag, that is selective enforcement. Right? If they only allow the US Flag and not others, fine. I don't live in this HOA and only know what the news reported. I am glad we don't have any issues in our HOA. I think common sense governs our HOA. We haven't had any issues with political signs, yard sale signs, etc. The only thing we have some slight issues are real estate signs. We just ensure the realtor watches out for our sprinkler lines when they are placed. And that the sign is promptly removed after the sale is finalized.
JohnC46
(South Carolina)

Posts:9577


07/10/2020 12:35 PM  
Our Covenants allow only For Sale signs no larger than 6 square feet. As for political signs, we would only say not allowed upon a complaint but we do not go looking for violations.
TimB4
(Virginia)

Posts:16808


07/10/2020 2:33 PM  
Keep in mind that many States have adopted laws the allow political signs, regardless of what covenants say.
KerryL1
(California)

Posts:7333


07/10/2020 5:19 PM  
Tim's right to point this out. In our Calif. condos, for instance, we must allow any non-commercial signs or banners in units' windows. (the only commercial signs are for sale or lease). This opposes our old CC&Rs.

We can & do restrict the size and umber of these items. WE'll see what might emerge as we get loser to the election. Our building is about 1/3 democrats, 1/3 republicans an 1/3 independents.
KerryL1
(California)

Posts:7333


07/10/2020 5:20 PM  
Tim's right to point this out. In our Calif. condos, for instance, we must allow any non-commercial signs or banners in units' windows. (the only commercial signs are for sale or lease). This opposes our old CC&Rs.

We can & do restrict the size and umber of these items. WE'll see what might emerge as we get loser to the election. Our building is about 1/3 democrats, 1/3 republicans an 1/3 independents.
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