By Stephanie Reid

Whether you’re a die-hard Trump fan, proudly tout #ImWithHer, or are taking the third-party approach, chances are you haven’t kept your presidential preference a secret.

While some folks limit the political discourse to the dinner table, others are a bit more outspoken. But what are the private homeowners’ rights when it comes to yard signs and political affiliation?

There’s a delicate balance between free speech and front yard aesthetics, and some recent, well-publicized clashes between homeowners and homeowners’ associations (HOAs) tasked with maintaining neighborhood uniformity have threatened to upset that balance.

First Amendment rights

Political speech, of course, is protected as a fundamental right under the First Amendment.

In fact, the U.S. Supreme Court has specifically taken up the issue of political signage on more than one occasion, emphatically describing political signage as a “decidedly unique and historical medium” that may have “no practical substitute.”

However, those Court rulings have involved private homeowners versus towns, municipalities, villages, and cities. In other words, private citizen versus the government.

Can the same political speech protections be applied in cases involving a private homeowner versus a private HOA or condominium association, since the Constitution and Bill of Rights are designed to protect citizens from the government, and not necessarily from private actors?

The best way for a homeowner to defeat an HOA’s attempt to limit or prohibit political speech is to argue that the association is a “state actor;” that is, a quasi-governmental body. In a series of cases in different jurisdictions, this argument has been somewhat successful, although there remains little precedent on the issue.

The U.S. Court of Appeals for the Eleventh Circuit, for instance, has repeatedly held that HOAs are not state actors for purposes of determining whether a constitutional infringement has taken place.

By contrast, the U.S. Supreme Court concluded that an association can be a state actor if its activities are pervasively intertwined with the local government.

In any event, the ability to use First Amendment free speech protections would hinge on this idea of whether or not a particular jurisdiction considers the association to be a state actor (sometimes referred to as a “quasi-municipality”).

Factors that may play into that are:

• Extent to which the neighborhood or subdivision is open to the public
• Whether the association is engaged with the local municipality
• Influence of the association on municipal and local ordinances and regulations
• Interrelation between the association as a private entity and the surrounding town or city

Lawful limitations on election signs

If a planned community manages to meet the necessary criteria, the community leadership may restrict political signage, provided the restrictions are implemented fairly and evenly.

Since freedom of speech is a fundamental right, any restrictions are subject to the “strict scrutiny” test of constitutionality. The restrictions must (1) be for a compelling, important interest and (2) advance that interest in the least restrictive way.

Also, any restriction on political speech must be content neutral, meaning the restriction must be for some reason other than “we just don’t like that candidate.”

There are a number of compelling interests that would pass constitutional muster, with the most important being traveler safety. An HOA would likely be within the law to implement any of the following restrictions:

• Keeping signs away from the edge of the road
• Regulating the size and dimensions of signs
• Prohibiting signs from obstructing the view of motorists, pedestrians, and cyclists
• Disallowing any signs that have blinking lights, mimic traffic signals, or could cause confusion for motorists.

Assuming it implements content-neutral restrictions for legitimate safety reasons like those described above, the HOA should be in the clear from a constitutional standpoint.

Furthermore, if the community serves as a polling location, the HOA could prohibit political signage within a certain radius of the polling place.

On the other hand, any political signage regulations that single out a certain political party, restrict certain candidates, or prohibit political speech altogether may be an unconstitutional restraint on the freedom of speech – and should be discussed with the HOA board as soon as possible.

If that doesn’t work, it may be time to consult an attorney.

What happens November 9?

For one thing, we’ll have elected a new president – so anything is possible, really.

When it comes to political yard signs, however, residents will likely be required to remove the signage as quickly as possible, often within a few days.

For HOAs and municipalities, lingering and stale political signs are an unsightly and unnecessary distraction. Residents should be prepared to remove their political signs swiftly after the election, or pesky fines could follow.

Related:

• ‘What Do You Mean My Home Isn’t Legal?’
• So You Want to be President of Your HOA?
• How an Easement Can Make for Lousy Neighbors

Note: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinion or position of Zillow.

Stephanie Reid obtained her J.D. from Regent University School of Law and her Bachelor of Arts degree from Florida State University. After two years in private practice, Stephanie opened her own law firm, Stephanie Reid Law. Her practice offers innovative web-based legal services for estate planning, family law and business clients. Stephanie also writes for AvvoStories.