Early voting is underway and, as expected, we have received calls complaining about political signs. You may be getting questions or comments about sign regulation in your communities, so we thought it would be a good idea to let you know what goes, and what does not, in community associations with regard to political signs. Some people assume that there is no way that community associations can regulate political signs because prohibiting signs would violate a resident's right of free speech under the First Amendment to the Constitution. While there is some validity to this assumption, it is not entirely correct in the community association context.
It is common to have sign regulation in community associations, particularly with respect to “For Sale” signs. Civil Code sections 712 and 713 make any blanket prohibitions void. While owners can have these signs on their property, they are not entitled, for example, to post these signs on the common area.
The question, then, is whether there is a distinction between “For Sale” signs and political signs, considering the fact that political signs seem to have more to do with free speech than "For Sale" signs. When analyzing government regulation of speech, the courts often distinguish between "commercial speech" and other types of speech, and find that commercial speech is not entitled to the same level of protection as other types of speech. But does that matter in a community association?
The answer is that pursuant to Civil Code Section 1353.6: The governing documents, including the operating rules,
may not prohibit posting or displaying of noncommercial signs,
posters, flags, or banners on or in an owner's separate interest,
except as required for the protection of public health or safety or
if the posting or display would violate a local, state, or federal
Follow this link to see the entire code section, including what constitutes a sign.
While there are no court decisions in California on this issue, it is interesting to see what court decisions have come down in other states.
In Kansas, the legislature passed legislation which makes it illegal for neighborhoods to adopt restrictive covenants prohibiting political yard signs. David Hudson, a First Amendment scholar at Vanderbilt University, has done research to cast doubt on the legitimacy of such laws. He states: “The First Amendment generally protects people only from government interference with speech.” Mr Hudson cited a Pennsylvania court ruling which stated that an association did not violate the First Amendment by removing political signs in accordance with the association’s declaration prohibiting the posting of signs at the individual units. The judge included the following statement in the ruling:
“The courts of the Commonwealth have vigorously defended the rights which are guaranteed to our citizens by both the Federal and our Commonwealth’s constitutions. One of the fundamental precepts which we recognize, however, is the individual freedom to contractually restrict, or even give up those rights. The homeowners challenging the sign prohibition contractually agreed by the provisions in the Declaration at the time of purchase, thereby relinquishing their freedom of speech concerns regarding placing signs on their property.”
Another significant case was decided in New Jersey. In a ruling that could have implications beyond New Jersey, in 2007 the New Jersey Supreme Court upheld the right of homeowners’ associations to restrict the posting of political signs and other forms of constitutionally protected speech, as long as the restrictions are not “unreasonable or oppressive.”
In a unanimous decision, the Court ruled:
“We conclude that in balancing plaintiffs’ expressional rights against he association’s private property rights, the association’s policies do not violate the free-speech and right-of-assembly clauses of the New Jersey Constitution.”
So, what’s the best way to deal with the issue?
We advise that when dealing with any signs, consider the Civil Code as to size, etc. and location, and if the sign is placed in their window or on their property, then it must likely be permitted.
On the other hand, a mannequin dressed to look like a political candidate hanging from a noose (as was the case in West Hollywood until governmental pressure convinced the owner that it should be removed) is not a “sign” that must be permitted.
In the meantime, we urge you all to exercise your right to vote and let your preferences be known in order to fully participate in the electoral process.