Old Glory
I can’t recall exactly how many times I’ve received a call or an email from a Board Member or Community Manager and the question being posed from the other end of the phone related to flags in some manner. As it relates to the American flag, it must have come up dozens, if not a hundred times, and usually as follows:
Q: Must the association allow an owner/member/resident to fly an American flag?
A: Yes, the association generally must (or at least should, what’s the real problem here?), but federal law (the Freedom to Display the American Flag Act of 2005) allows the association to place reasonable restrictions pertaining to the time, place, or manner of displaying the American flag necessary to protect a substantial interest of the association. (It is noted that many states also have enacted their own statutes that deal with the issue as well).
It’s hard to fathom how much litigation has actually ensued over this seemingly simple issue, but generally it’s all due to some type of overreach – either by the owner/member/resident or by the association, and sometimes by both. In my personal experience, I have dealt with issues involving the size of the flag, the size of the pole, the location of the flag, the location of the pole, a flag being flown with no pole, multiple flags being flown instead of one, and innumerable other issues. Usually, after some back and forth, the association and the owner/member/resident find an acceptable middle ground, an American flag stays up, and everyone goes their separate ways.
But sometimes it’s not that easy. In October of 2019, after a rejection by the association and many months of legal wrangling, a Vietnam veteran resident of the Equestra at Colts Neck Crossing active adult community in Howell, New Jersey was finally granted permission to install a non-permanent, staked flagpole to keep his flag hanging in his garden bed. Though the association only allowed flags attached to the home, in support of his request for an upright flag on a pole, the resident contended that it was difficult for him to climb ladders to reach the flags that attach to the siding on the home and that the brackets frequently break, and also that as a veteran he wished to fly the flag at half staff/mast at times. While an amicable resolution was eventually achieved, it came at the expense of time, money and energy of both parties, and it also resulted in local news media covering a dispute between a Vietnam veteran and an association about an American flag.
As recently as January of 2020, some military veteran residents in the Craft Farms North HOA in Gulf Shores, Alabama erected flag poles in their front yards, which the HOA believed was prohibited as the covenants provide that the flag must be attached to the home. So why is an association fighting with veterans out of all people? Because it’s a balancing test: while the veterans clearly are legally permitted to fly the American flag, the private covenants restricted the physical location to being attached to the home, which is also permitted by federal law.
Another fairly well-known legal battle that garnered national attention involves Air Force veteran Larry Murphree and the Tides Condominium at Sweetwater by Del Webb Master Homeowners’ Association in Jacksonville, Florida. The battle over flying the flag started in 2011, when Mr. Murphree put a small flag in a flower pot by his front door. The association asked him to remove the flag, so Mr. Murphree sued. The association eventually settled allowing him to keep the flag so long as it was in compliance with association rules and the law. However, by 2013 the association revised its rules to prohibit anything but the actual plant from being allowed inside a flower pot. The association subsequently began fining Mr. Murphree for the violation, so Murphree sued once again. The case ultimately ended up in state court with each side making claims against the other, and the matter went to trial the last week of February of 2020. The two sides were given another month to present their final arguments in writing. As of the writing of this article, to the author’s knowledge, no verdict has been handed down, likely due to the outbreak of COVID-19 delaying the judicial system on a national basis.
These examples raise the following questions: what is reasonable, what battles should actually be fought, and why are people even fighting over these issues to begin with? From what I have concluded the American flag means a lot of things to a lot of Americans, and it is not just an issue of American pride or some sort or patriotism, but it is also an emotional issue that simply cannot be explained. People are therefore willing to dig in their heels to prove their point as to flying the flag and associations will similarly do so in order to enforce their covenants. The end result is that these disputes will never go away in associations. Perhaps the lesson to be learned is that sometimes seeking an early resolution by way of alternative dispute resolution (ADR), such as through non-binding mediation, may allow for a reasonable discussion to occur and for a third party with “no skin in the game” to make reasonable recommendations for each party to consider. And lest we forget, that foreign to some concept called “common sense” can, and should, be used when issues like these come up in associations.
Old Glory – But Modified
I have also received questions about American flags with other “embellishments” added to the flag (i.e., USMC Semper Fi logo, Army star, a “thin blue line” to support law enforcement, firefighter axes, etc.) and owners/members/residents have argued that these flags are still American flags that the Association can not completely prohibit. However, modified American flags do not qualify as American flags under federal law. To wit, 4 U.S. Code, Chapter 1- The Flag – at Section 1, “Flag; stripes and stars on”, succinctly and unambiguously provides that “[t]he flag of the United States shall be thirteen horizontal stripes, alternate red and white; and the union of the flag shall be forty-eight stars, white in a blue field.” 4 U.S. Code, Chapter 1- The Flag – at Section 2 further provides that “[o]n the admission of a new State into the Union one star shall be added to the union of the flag; and such addition shall take effect on the fourth day of July then next succeeding such admission.” (In 1959, Alaska and Hawaii were the last two States admitted into the Union and represent the 49th and 50th stars added to the flag). Accordingly, any modified version of the American flag is not really the American flag, and as a result the Freedom to Display the American Flag Act of 2005 does not apply. Period.
State Flags
Many states have also passed their own statutes that prohibit associations from completely prohibiting the display of the American flag as well as state flags. This being said, I can honestly say that in all of my years of law practice and in my many years of representing associations, I have never received a question about someone being allowed to fly a state flag. In fact, I can’t recall if I have ever actually seen the flag of the Commonwealth of Pennsylvania or the State of New Jersey (the two states where I am licensed to practice law) being flown in front of a private residence or anywhere other than in front of a courthouse or a state office building of some sort. I will let you all know if this ever changes, but I wouldn’t hold my breath if I were you. (However, my guess is that in Texas the lone star state flag means much more to Texas residents than the Pennsylvania flag does to Pennsylvania residents, so this has probably been an issue in Texas).
“Other” Flags
While I have never encountered a question about flying a state flag, there have been plenty of inquiries relating to owners/members/residents flying or displaying “other” flags in the community, including but not limited to college/alumni flags, professional sports team flags (around these here parts, it’s Flyers, Sixers, Eagles and Phillies flags), decorative/seasonal/holiday flags, Bible verse flags and charitable foundation/issue flags. I am not aware of any federal, state or local laws that would prohibit an association from prohibiting or restricting association owners/members/residents from flying or displaying these types of flags so long as the recorded, private covenants that run with the land specifically allow for such a prohibition or restriction.
Where there is no specific language in a covenants relating to flags, the association must ensure that some other language exists which would support a prohibition or restriction on flying or displaying “other” flags – this is typically in the form of an outright ban on displays or decorative items being placed outside the unit or in some other form of restriction (such as size and location) which would encompass and include “other” flags by its nature. If no language is present in the covenants and the association decides to handle the issue through rulemaking process rather than seeking a covenant amendment, there is risk that such a rule may be deemed to be unenforceable if challenged. Finally, if there is no prohibition or restriction present, and residents are happily flying or displaying “other” flags in the community, an amendment project to prohibit or restrict these flags would likely fail before it even started.
Military Branch and/or POW/MIA Flags
Another recurrent flag issue involves flying military branch (i.e., Army, Navy, Air Force, USMC, Coast Guard (and soon to be Space Force!)) and/or POW/MIA flags. There appears to be no federal protection (though these flags may be flown at federal sites and facilities), but various states including Pennsylvania, Illinois, Texas and Florida have included military branch and/or POW/MIA flags in their state statutes. The advice here is therefore: check with association counsel before making any decision(s) on these flags as your state may actually have a law in place which deals with them.
Flags that People Believe Implicate “Freedom of Speech”
What about those “Hate Has No Home Here” flags? During the 2016 election season, these flags popped up with increasing frequency between owners/members/residents in associations who attempted to assert their “First Amendment freedom of speech rights” in support of the notion that they could fly or display the Hate Has No Home Here flag based upon their “First Amendment constitutional right to freedom of speech” (a battle over this issue actually ensued local to the author in a Philadelphia suburb between an owner and an association, but it appears to have resolved prior to litigation). Are the owners/members/residents correct? To give a definitive legal opinion: probably not.
In very general terms, and as related solely to the discussion of the issues in this article, the First Amendment to the United States Constitution provides that the government (which now includes local and state governments) cannot make laws that abridge freedom of speech:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The emphasis on the government in the First Amendment is an important one – there must be “state action” by a “state actor” in order to trigger application of First Amendment rights; in other words, the government must be seeking to curtail or otherwise limit someone’s First Amendment rights in order for the First Amendment protections to apply.
Since a community association is private, and is not an official form of “government”, federal First Amendment freedom of speech protections would not apply to private association restrictions or covenants that may limit such rights. But what about the individual states – how do they apply freedom of speech protections to community associations? While most states do not consider a community association a “state actor” and will therefore not interfere or overturn private association restrictions or covenants that may limit speech, there are states that have actually found in favor of homeowners in matters concerning freedom of speech in a community association. However, Pennsylvania does not appear to be one of these states, at least as it relates to owners/members/residents that have argued that “for sale” signs must be allowed because it is a “freedom of speech” issue.
In Midlake on Big Boulder Lake Condominium Association v. Cappuccio, 673 A.2d 340 (Pa. Superior 1996), the Pennsylvania Superior Court upheld an association restriction which prohibited owners from posting any type of sign on or in a unit or a common element which would be visible from the outdoors. The court held that the association was a private, not governmental, organization and as a result the association was entitled to enforce its restrictions without violating the First Amendment of the United States Constitution. In reaching its decision, the court also found that the owners contractually agreed to abide by the restrictions in the covenants at the time they purchased the home, thereby relinquishing their freedom of speech concerns.
In Anelli v. Arrowhead Lakes Community Association, Inc. (Pa. Cmwlth. 1997), a restriction on “For Sale” signs was contained in the association covenants and homeowners that could not sell their home posted a “For Sale” sign in front of their home. The Pennsylvania Commonwealth Court held the association restriction on “For Sale” signs to be enforceable as the Association is not a governmental entity and was therefore permitted to restrict “free speech” in the nature of posting “For Sale” signs.
Thus, at least in Pennsylvania, it appears that the current trend is that Hate Has No Home Here and similar “flags” would not be afforded protection under First Amendment to the United States Constitution as Associations are not state actors, and the private covenants, if applicable and restrictive, would be determinative. The lesson to be learned here is, contact association counsel if this issue manifests before acting in any manner as your state may have differing state protections that would alter the outcome.
Political Candidate “Flags”
Community association residents have divergent political leanings and opinions on various issues. They are politically active outside of their association. They vote. They want to support their preferred political party and/or its candidates. One way to do so is to support their candidate by putting a sign in the lawn or window of their unit. But since they live in a community association, can they display these political signs if the association’s covenants and restrictions say they can’t, or limit where the signs can be placed? In the state of New Jersey, the answer appears to be “it depends”.
In Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 192 N.J. 344 (2007), the New Jersey Supreme Court upheld an association’s ability to enforce sign restrictions, including “political” signs, as the contractual (association) restrictions still reasonably allowed for the placement of such signs in a window and in an identified area of the lawn.
Five years later, the New Jersey Supreme Court issued another opinion in Mazdabrook Commons Homeowners’ Ass’n v Khan, 210 N.J. 482 (2012), again on a political sign issue, but in favor of the homeowner this time. In Mazdabrook, a homeowner was running for local political office and posted two of his campaign signs inside of a window and inside of a [glass] door of his home. The distinction between this case and Twin Rivers was that the association’s restrictions in Mazdabrook essentially banned almost all types of signs, except for one “For Sale” sign. The Court held that the association sign restriction violated Article I, Section 6 of the New Jersey Constitution, which provides that “…[e]very person may freely speak, right and publish his sentiments on all subjects, being responsible for the abuse of that right.” In coming to its decision, the Mazdabrook Court compared Twin Rivers and concluded that an owner’s right to post a political sign outweighed the impact on the association’s private property interests.
It appears that the distinction between the Twin Rivers and Mazdabrook cases was that the Twin Rivers restrictions permitted political signs but restricted their location, while the Mazdabrook restrictions did not permit political signs in any manner whatsoever, stifling the homeowner’s right to assert political speech in accord with the New Jersey Constitution.
I would envision that the same analysis would occur if instead of a lawn or window sign, owners/members/residents flew or displayed a “flag” with their preferred candidate’s name emblazoned across the flag – and the following question begs to be asked: is this even really a “flag” or is it merely a political campaign sign or endorsement? In my eyes, it is the latter. I foresee a situation in the not so distant future where owners/members/residents will fly or display a candidate’s political campaign “flag” as “flags” may be permitted by vague covenants when other types of exterior signs or displays may otherwise be prohibited in the community. In Pennsylvania, based upon current precedential appellate case law, such a flag would not be protected, but in New Jersey, it *may* be protected based upon how restrictive the covenants in a community may be as it relates to protections afforded by the New Jersey constitution.
Your state might be different, so please seek the cogent advice of association counsel BEFORE making any decisions that might be contrary to state law and/or your state constitution.
In Closing
Flag issues will always be present in community associations, so Association Boards and community managers must be educated on flag issues and handle them correctly before they go the wrong way. Remember, a little common sense goes a long way – often times, flag issues should, and can, be resolved instead of ending up in court and/or being plastered across social media and cable news networks.
– Edward Hoffman, Jr., Esq., CCAL
A condensed version of the content in this Blog Post was originally published in the September/October 2020 issue of Common Ground magazine in an article entitled “Stars and Stripes and Sleepless Nights”.