10/08/2020

Client Alert

Written by: Michael S. Karpoff

Signs always have been a hot button issue for community associations. But in the current political climate, they have become an even greater source of concern. May boards restrict signs to prevent aesthetic clutter throughout the community? Must boards allow their communities to become billboards for their residents’ personal opinions? May a board prohibit messages that appear to be racially, ethnically or religiously insensitive or discriminatory?  

Contrary to what some believe, the U.S. Constitution’s First Amendment does not protect speech in private communities because they are not government agencies. However, state constitutional speech provisions may apply. In Pennsylvania, the general rule is that the state constitution’s speech protections do not apply to a private community unless the community has made itself a public forum for speech. The New Jersey Supreme Court, though, has broadened its protection of speech, and particularly signs, in common interest communities. This article therefore focuses on the standards in New Jersey.

No Blanket Prohibition on Political Signs

In dealing with signs, there are generally two types – commercial and political. Commercial signs promote business and commercial transactions and have less protection than political signs. Associations have a greater ability to restrict them. Political signs on the other hand are any expressive messages that are not commercial. Restrictions of political signs are subject to greater scrutiny.   

Under New Jersey Supreme Court holdings, each resident retains a right of speech within his or her unit or home and so may post political signs in windows. Nevertheless, an association may impose reasonable time, place, and manner (including size and number) restrictions on signs. Thus, an association may reasonably limit the size of signs in windows, may limit the number of signs, may prevent lights and sounds that create distractions or nuisances, and may establish reasonable periods for display of various types of signs. 

There is no obligation to allow signs on association or common property, and the association may bar signs that interfere with others’ property rights or create safety hazards. No case has definitively determined if an association may prevent an owner from placing a sign on the exterior of a home when the exterior wall is owned by the homeowner, but we believe that a board may justify such a restriction by the need to preserve community aesthetics.

Does Content Make a Difference?

Regardless of what, if any, limitations a community imposes on signs, it generally may not regulate content. That is, a board may not determine that messages promoting one point of view are permitted but opposing or different messages are not. (It is unclear at this time whether the courts will allow an association to prohibit socially unacceptable signs or posters such as hate speech or obscenity, but we believe that there are legal justifications for preventing messages intending to demean or threaten neighbors in a private community.) 

The timing, placement, manner and size of signs that are permitted may, however, depend on the type of message. For example, a board may establish a reasonable period before an election to post a campaign sign and a deadline after the election by which the sign must be removed and may also allow the use of particular locations for campaign signs that are not available for other types.

Flags Treated as Signs

Flags are essentially a type of signs. Therefore, flags generally should be treated in the same manner as signs. They should be permitted in residents’ windows, subject to the same limitations applied to signs, and may be restricted in other locations. The time, place, manner of display and the size and number may be reasonably restricted. On the other hand, just as with signs, the association should not regulate the content of flags.

There are, however, two notable exceptions to the rules regarding flags, created by statute. The Federal Freedom to Display the American Flag Act of 2005 prohibits a private community from preventing a member from displaying a United States flag on residential property owned by the member or of which the member has exclusive use. However, an association may impose reasonable time, place and manner restrictions that are necessary to protect a substantial interest of the community, such as the size and location of the flag pole. 

In addition, a New Jersey statute bars a community from preventing the display of the United States flag and yellow ribbons, as well as signs supporting United States troops. It permits reasonable time, place and manner restrictions and authorizes removal if the display threatens public safety, restricts necessary maintenance activities, interferes with the property rights of another, or is conducted in a manner inconsistent with the rules and customs deemed the proper manner to display the flag. 

Adopt Reasonable Rules

The key for associations is to reasonably allow members to express themselves while preventing excessive displays that significantly impact aesthetics or the rights of other members. We recommend that each board adopt a written policy regarding the display of signs and flags to educate the residents and assure equitable enforcement.  In formulating that policy, the board should discuss with the homeowners the reasons for and limitations of proposed sign and flag regulations and consult with legal counsel to assure their propriety.  

If you have questions about this or any other issues with your community association, please contact one of our community association attorneys.

©2020 Hill Wallack LLP. All rights reserved. Please contact Hill Wallack for permission to reprint. Notice: The purpose of this Client Alert is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, accuracy and completeness of which cannot be assured. This Client Alert should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.