Community Associations Institute (CAI) respects the right of citizens to freedom of speech as set forth to varying extents in the constitutions of the United States and various states but recognizes that right is not unlimited. As such, CAI also recognizes and supports the rights of residential community associations reasonably to regulate political and non-commercial signs within their communities in a manner consistent with federal, state, and local laws. CAI supports legislation that recognizes the core principle of self-governance, self-regulation, and co-ownership of common property and the community association housing model balanced with owners' rights of free speech. Because each association is unique, legislation should allow an association to develop reasonable rules and regulations concerning the time, location, materials, size, number, and manner of where political signs or other political displays and/or political activities and noncommercial signs are located within the community, while preserving the freedom of political expression.
About the Community Association Housing Model
While community associations come in many forms and sizes, all associations share three basic characteristics: (1) membership in the association is mandatory and automatic for all property owners; (2) the community association governing documents bind all owners to defined land-use requirements administered by the community association; and (3) all property owners pay mandatory lien-based assessments that fund association operations.
The community association housing model is actively supported by local government as it permits the transfer of many municipal services and costs to the association and homeowners. Today, many community associations deliver services that once were the exclusive province of local government usually funded by local property taxes.
Community associations are governed by a volunteer board of directors or trustees elected by their members. This board guides the association in providing governance and other critical services that benefit the community.
The United States Supreme Court determines the levels of scrutiny each class of speech receives when constitutionally interpreted. Political speech, including speech for or against government policies, political candidates, or officeholders, or relating to “politics, nationalism, religion, or other matters of opinion," receives the highest level of protection. W.Va. State Bd. Of Educ. V. Barnette, 319 U.S. 624, 642 (1943). A political sign is a temporary sign encouraging citizens to vote a particular way or expressing support or opposition for candidate(s) running for elective office, propositions, ballot referendums, or matters of public concerns and therefore is political speech.
The First Amendment of the U.S. Constitution guarantees the right to freedom of speech to American citizens, without restriction by government entities or state actors. It does not apply to private parties, such as community associations. Because a community association is not a state actor, an association is able to adopt and enforce restrictions that reasonably regulate political and noncommercial speech within their community. Some states, however, have constitutions or other law that provides a broader free speech right that does not depend on state action.
Throughout history it's always been a relatively small minority of people who have spoken out regarding sign and flag regulations because they are passionate about a subject. It is important to protect and serve the voice of all residents to allow reasonable expression of speech through signage, while not interfering with the property rights of other residents.
CAI encourages the self-governance and regulation of political and non-commercial signs in community associations. CAI encourages the adoption of reasonable guidelines that allow the use of signs to express political speech that are subject to reasonable time, manner, and place restrictions.
CAI supports legislation that protects residents' free speech rights while permitting the community association in which they reside the ability to adopt and enforce reasonable rules and regulations concerning the time, location, materials, size, number, and manner of where political signs or other political displays and/or political activities, and non-commercial signs can be displayed on a homeowner or resident's property.
CAI supports legislation stating community association may not prohibit the display of political signs but opposes any legislation that requires allowing signs on property not owned by a resident, or which interferes with the association's ability to adopt reasonable rules and regulations concerning time, location, materials, size, number, and manner of where political signs or other political displays.
CAI supports reasonable rules that may restrict the display of a political sign or a sign that advertises support or defeat of any proposition or political candidate in an association's common area. CAI supports reasonable rules that limit the time period during which a sign may be displayed if the jurisdiction does not already do so, including but not limited to, how many days before a primary election, general election, or vote on the proposition a sign may be displayed and within how many days post-election or proposition vote a sign needs to be removed.
“Non-commercial signs" refer to signs which display opinions, points of view, or contain political, civic, public service, religious, or ideological messages. CAI supports legislation which allows a community association to adopt reasonable rules that regulate how such non-commercial signs may be displayed and whether such non-commercial signs may be displayed within the property governed by the community association.
CAI supports legislation that recognizes the core principle of community self-governance and co-ownership of common property and the community association housing model. CAI encourages policymakers to engage industry stakeholders, including community associations, on this issue. Further, CAI believes crafting regulation should always take place in an open and transparent manner, providing the opportunity for comment by all interested parties.
CAI encourages the self-governance and self-regulation political and non-commercial signs in community associations. However, subject to an association's overarching ability to govern itself, CAI will support the following model legislative language if a state is addressing this topic in legislation:
(a) No governing document for a community association shall prohibit the display of a political sign that supports or opposes a candidate for public or association office or a referendum or policy question by a resident on the separate interest of the resident.
(b) Notwithstanding paragraph (a), an association may adopt reasonable rules that regulate the time, location, materials, size, number, and manner of placement of signs on the separate interest within the community association.
(c) This section shall not prohibit or otherwise restrict the association from regulating or prohibiting the placement of signs, flags, banners or other displays of any type, kind, or size in the common areas.