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Flags and Political Signs - William Bradley Mason, Jr.
Flags are symbols. Through out history, they have made people feel proud, hateful, afraid, hopeful and a host of other emotions. They are symbols of who we are. They are symbols of the causes we believe in. Many flags have
led nations into battle in the past. But, the current battle is between
community associations and some of their members. Flags, and the right
to display them, have become symbols of defiance and free speech for some
homeowners. And the First Amendment has become a shield in that battle.
On July 24, 2006, the President signed into law the Freedom to Display the American Flag Act of 2005 (H.R. 42). We then saw headlines like this… 1. All Homeowners
Can Fly the Flag Many property owners focused on the first part of the statute that said community associations could not bar them from displaying the flag of the United States. They ignored they rest of the law that said the associations could make reasonable rules pertaining to the time, place and manner of displaying the flag necessary to protect a substantial interest of the association. This is where things become cloudy—reasonable rules on time, place and manner. What rule is considered necessary to protect a substantial interest of the association and is permitted under the new law? The law is dangerously ambiguous and likely to result in litigation. Let’s just make it somebody else. Trying to draft reasonable and lawful restrictions for your community will be challenging and may need adjustment along the way as this law is interpreted. Download Text
of Legislation:
It is worth noting that the Federal Flag law is generally consistent with the written policy of the Community Associations Institute adopted after “9-11”. To view more
on CAI’s Public Policy please visit:
Time There are really only two categories: the hours of the day and the days of the year. 1. Days of the
Year Also, what substantial interest is being protected by limiting the days that a flag—that is otherwise acceptable—can be displayed? Aesthetics? It’s not enough in my mind. This will be framed as a battle between free speech and architectural harmony—between property values and patriotism. I believe that the courts will hold find that any restrictions limiting the display of flags for a few days a year are not consistent with the overall intent of the Act. Hours of the Day. Of course, you may wonder…what was the intent of placing the word “time” in the statute anyway? It may be referring to the requirement under Federal Flag Code referred to in the new Act that flags flown past sunset must be illuminated. There have been disputes throughout the country on the manner of illuminating the flag. How brilliant? Does it shine in the window and light up the neighbor’s bedroom at night? Rules regarding placement or that limit the amount of light, will fly, so long as the lighting is sufficient to illuminate the flag.
Place Does the federal statute allows the Flag to be placed on the Common Area, in the case of a homeowners association, or the Common Elements of a condominium. Not according to the Act, but look out for the exception. A member may display the U.S. flag on a portion of the Common Elements where the Owner has a “separate ownership interest or a right to exclusive possession or use.” A balcony or patio, may be example where an Owner has the right to exclusive possession or use. But, the fact
that the Owner of a condominium has a 1% ownership interest in the Common
Elements, does not mean that that Owner can display a flag in his 1% interest
in the roof or the lobby, for example? But, remember that it’s not
just exclusive ownership…it may also be the right to exclusive possession
or use. The Act is very similar to the federal law and rules on satellite
dishes. Prior to the
Act, the Circuit Court of Loudoun County disapproved of a free-standing
flag pool because of its location next to the common area paths. The Board
found that the pole was fragile enough as to be a safety concern during
windy days. Even the satellite rules have recognized a safety exception
and believe that association rules relating to safety would prevail over
the right to display the flag. Most governing documents provide that a
purpose of the association is to protect the health, safety and welfare
of its members. I believe that rules genuinely relating to safety are
necessary to protect a substantial interest of the association, which
is the safety of its members, and would survive scrutiny under the Federal
flag law.
This is the most difficult part of the triad…time, place and manner. Poles Size Maintenance Material To view the
Federal Flag Code please visit:
The Virginia General Assembly has debated several flag bills over the past few years. Currently, the Virginia Housing Commission is studying a 2006 proposal that is broader than the Federal statute. It would protect the display of the U.S. flag, the Virginia state flag and flags of the branches of the armed services. It appears that the Housing Study Commission will recommend that the state statute be modeled after the Federal statute, but include more flags, and that the proposed legislation will be continued to the 2007 Session for further action. There is still some concern about the law being made subject to community association rules on time, place and manner so there will be a bit of drama until the final report is filed in December. To view House
Bill No. 1096 please visit:
This is what a former marine said after being told by the Court to take down a U.S. flag and a U.S. Marine Corps flag displayed in his Richmond homeowners association. Is he right? Is the right to fly the U.S. flag in a private community association a right of free speech protected by the First Amendment to the U.S. Constitution? This is the first of four underlying legal issues in this debate…does the U.S. Constitution apply to community associations? The Virginia attorney general, in a written opinion, says, no (Virginia Attorney General Opinion No. 00-035). The U.S. Constitution does not apply to private community associations. A Pennsylvania Court agreed and also ruled that the U.S. Constitution did not apply to community association rules prohibiting the posting of political yard signs. The First Amendment only protects against government restrictions on free speech, said the Court. The First Amendment does not apply to a private associations such as a community association (Midlake on Big Boulder Lake, A Condominium Association v. Capuccio, 512 U.S. 43, 114 S.Ct. 2038, 129 L.Ed. 2d 36 (10004)). In the famous case of Shelley v. Kraemer, the United States Supreme Court said that enforcement of private, but racially discriminatory, restrictive covenants by a state court constituted state action and violated the U.S. Constitution. However, the Supreme Court later refused to extend that logic further involving a community association rule barring “for sale” signs (Loren v. Sasser). There have been suggestions by state Courts that the U.S Constitution might apply, but nothing else from the U.S. Supreme Court, and so the answer remains—no—it does not apply. A related question is our second legal issue. If the U.S. Constitution, and its guarantees of free speech does not apply….what is the constitutional basis for the Federal government’s regulation of private community associations? Where is the state action? Where is the magic clause in the Constitution that allows Federal interference with private covenants? The early response seems to be—don’t worry, there are lots of clauses--the Commerce Clause…the Supremacy Clause—we’ll find one if we have to. And I am sure they will. To view more
on the Virginia Attorney General Opinion No. 00-35 please visit: To view more
on Shelley v. Kraemer please view:
Now granted, this is a New Jersey case involving the New Jersey Constitution. But, our state Constitution—written by George Mason—is deeply rooted in Virginia’s history. This brings us to the third legal issue in this debate…can the state Constitution include broader freedoms of speech than the Federal Constitution? Many legal scholars say, yes. They believe the state Constitutions can include broader freedoms of expression and that the state Courts are able to construe those provisions more broadly. Article I, Section 12 of the Virginia Constitution reads as follows: “That the freedoms of speech and press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; (and here is the kicker) that the General Assembly shall not pass any law abridging the freedom of speech or of the press.” Now, the Circuit Court for Henrico County had a chance to hold that the Virginia Constitution protected Mr. Oulton’s right to display the U.S. flag…and it did not. The Virginia Supreme Court then had an opportunity to comment—but refused the case—as did the U.S. Supreme Court. There will be a new Virginia statute on flag display and I do not believe that we have heard the last on this issue. I could see a case being decided in the home state of George Mason, Patrick Henry and Thomas Jefferson—similar to the New Jersey case and holding that there are certain fundamental rights of free speech. To view the
Virginia State Constitution please visit:
Now, back to the new Federal Flag law and our fourth legal issue. Some members of community associations are angry that the Federal flag law allows any rules to be made by community associations at all, particularly in states that have passed a state law barring any community association rules prohibiting the display of the U.S. flag. In their minds, there is no community association interest greater than the absolute right to display the U.S. flag. The legal issue is whether the Federal Flag law is superior to state law, and therefore preempts state laws, or state law survives the federal law and may state law may prohibit any community association rules, reasonable or not. In short, if Virginia passes a law in 2007 that says, “no flag prohibitions…what happens to “time, place and manner” under the Federal law? Community association lawyers are saying that you should try and comply with both statutes, but how do you that if one says, some rules, and the other says, no rules? I think you adopt reasonable rules that comply with the Federal law, but test the water temperature before diving forward to enforce those rules in Court. Make sure that you really good facts. You don’t just want a flag that’s a little big—you want people pulling off the highway and looking for the car dealership. The debate about flags, the First Amendment and community associations continues to be furious. There are on-going controversies existing about the display of the Australian national flag and the United Nations flag. Ironically, even the proposed Virginia Statute—which only would permit the Virginia State, U.S. and military branch flags—was generated, in part, about a flap involving the display of the South Korean national flag. The Community
Associations Institute is hoping to issue model rules—as they did
with the Federal satellite law—sometime in the future. But, don’t
hold your breath. No dates have been set. In the meantime, the Freedom
to Fly the American Flag Act of 2005 remains part of a passionate debate
in this country about community associations and flags. And Boards are
stuck in the middle of this debate. But, don’t run up the white
flag…we will all figure this out.
Another state bill is also being studied by the Virginia Housing Commission and would prohibit community association restrictions on political candidate signs. The feeling was…it’s my beach and I’ll post any sign I want to…at least prior to the election. This is expected to get the green light for the 2007 Session. It’s hard to convince politicians that there should be a prohibition on political signs. To view information
on the Virginia Housing Commission please visit:
To view House
Bill No. 878 please visit:
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