By David L. Hudson Jr., First Amendment Scholar
Updated June 2012
Many people like to express their support for a political candidate with a yard sign. Sometimes this form of freedom of expression conflicts with a city law banning or limiting the time in which political signs may be displayed. The question becomes whether such city laws infringe upon citizens’ and perhaps the candidates’ First Amendment rights.
Some city officials claim that putting limits on yard signs furthers a variety of state interests, including aesthetics and traffic safety. However, opponents of such regulations counter that yard signs, unlike perhaps large billboards too close to public streets, do not in any way reduce traffic safety. They also contend that aesthetic interests pale in comparison to the importance of political speech expressed in campaign signs.
In 1994, the U.S. Supreme Court struck down a Missouri city law prohibiting signs at private residences. Margaret Gilleo ran afoul of the law when she placed a 24-by-36-inch sign in her front lawn with the words, “Say No to War in the Persian Gulf, Call Congress Now” and an 8 ½-by-11-inch sign in the second-story window of her home that read, “For Peace in the Gulf.”
A unanimous U.S. Supreme Court rejected the ordinance in City of Ladue v. Gilleo, writing that residential yard signs were “a venerable means of communication that is both unique and important.” The Court explained:
“Displaying a sign from one’s own residence often carries a message quite distinct from placing the sign someplace else, or conveying the same text or picture by other means. … Residential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute. … Even for the affluent, the added costs in money or time of taking out a newspaper advertisement, handing out leaflets on the street, or standing in front of one’s house with a handheld sign may make the difference between participating and not participating in some public debate.”
Lower courts have cited the Gilleo precedent with great success in challenging city bans on political yard signs. In Curry v. Prince George’s County (1999), a federal district court in Maryland invalidated a sign ordinance that limited the posting of political campaign signs in private residences to 45 days before and up to 10 days after an election. “There is no distinction to be made between the political campaign signs in the present case and the ‘cause’ sign in City of Ladue,” the court wrote. “When political campaign signs are posted on private residences, they merit the same special solicitude and protection established for cause signs in City of Ladue.”
In Arlington County Republican Committee v. Arlington County (1993), a three-judge panel of the 4th U.S. Circuit Court of Appeals invalidated a county law that imposed a two-sign limit on temporary signs for each residence. The court noted that “the two-sign limit infringes on this speech by preventing homeowners from expressing support for more than two candidates when there are numerous contested elections.”
Taking another example, the Supreme Court of Ohio ruled in City of Painesville Building Department v. Dworken & Bernstein Co. (2000) that a city law requiring the removal of political signs within 48 hours after an election is unconstitutional as applied to the posting of such signs on private property. “Although the Supreme Court has not considered the issue, the overwhelming majority of courts that have reviewed sign ordinances imposing durational limits for temporary political signs tied to a specific election date have found them to be unconstitutional,” the court wrote.
This does not mean that cities can never legislate in the area of political signs. A city may regulate the size, shape and location of yard signs. Such regulations may very well qualify as content-neutral and reasonable “time, place and manner” restrictions on speech. Similarly, a city may be able to establish a 10-sign limit per residence on yard signs. At some point, the sheer number of signs might realistically impair the aesthetics of a neighborhood.
Homeowner, condo associations: different situation
Although cities and other government entities are constrained by the First Amendment in regulating political yard signs, there is no similar restraint imposed on private homeowner and condominium associations. Seemingly the only free-speech avenue for a resident in a private homeowner association is an argument based on an individual state constitution.
Cities are considered state actors subject to the provisions of the U.S. Constitution. Homeowner associations are private parties that do not qualify as state actors. The First Amendment generally protects people only from government interference with speech.
For example, a Pennsylvania state court ruled in Midlake on Big Boulder Lake, Condominium Association v. Cappuccio (1996) that a condominium association did not violate the First Amendment by removing political yard signs in accordance with a section of the association’s declaration of rules prohibiting the posting of signs at individual units. The court reasoned that there was no state action, because the association was a private party. The court wrote:
“The courts of this 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’s freedom to contractually restrict, or even give up, those rights. The Cappuccios contractually agreed to abide by the provisions in the Declaration at the time of purchase, thereby relinquishing their freedom of speech concerns regarding placing signs on this property.”
Some litigants have sought to satisfy the state-action doctrine by invoking the plight of homeowners in the landmark U.S. Supreme Court case Shelley v. Kraemer (1948). In that case, the U.S. Supreme Court found state action in the enforcement of racially discriminatory restrictive covenants that limited the sale of residential property to a specific race. The Court found that such odious provisions smacked of flagrant racial discrimination, and that judicial enforcement of such restrictive covenants violated the 14th Amendment and its principle of equal protection. The 11th Circuit wrote in a case involving an association’s prohibition on “for sale” signs that “Shelley has not been extended beyond race discrimination” (see Loren v. Sasser (2002)).
This means that government restrictions on political campaign signs are problematical under the First Amendment. However, homeowner/condo-association restrictions on yard or window signs may very well not raise a valid constitutional-law issue unless there is a very close nexus, or connection, to a government entity.
A caveat to this general First Amendment principle is that state courts are free to interpret the free-expression provisions in their state constitutions more broadly than the federal courts interpret the First Amendment to the U.S. Constitution. Some states have done this by finding that large shopping malls are the functional equivalent of the city square for purposes of free-speech issues. (See Assembly on private property section.)
In Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Association, the Superior Court of New Jersey, Appellate Division, ruled that a homeowners association was subject to the free-speech provisions of the New Jersey Constitution.
“The manner and extent to which functions undertaken by community associations have supplanted the role that only towns or villages once played in our polity mirrors the manner and extent to which regional shopping centers have become the functional equivalents of downtown business districts,” the court wrote. “In the exercise of fundamental rights, we discern no principled basis for distinguishing between the general public at large and the members of a community association.”
However, in July 2007, the New Jersey Supreme Court reversed and ruled that the homeowner-association restrictions were reasonable and did not violate the New Jersey Constitution in Committee for a Better Twin Rivers v. Two Rivers Homeowner’s Association.
Yet in June 2012, the New Jersey Supreme Court invalidated a broad homeowner-association rule that prohibited even political signs in the windows of residents’ homes in Mazdabrook Commons Homeowners Association v. Khan. “Political signs advancing a resident’s candidacy are not by their nature incompatible with a private development,” the New Jersey high court wrote.
It remains to be seen whether other courts might apply state constitutional free-speech protections to privately owned homeowner associations. It certainly bears close inspection.
Meanwhile, in 2004 President George W. Bush signed a bill preventing condominium and homeowner associations from restricting display of the United States flag by individual unit owners. Rep. Roscoe Bartlett, R-Md., sponsored H.R. 42, which was passed unanimously by both the House and the Senate. In a statement about the bill, Bush said, “Americans have long flown our flag as an expression of their appreciation for our freedoms and their pride in our nation. As our brave men and women continue to fight to protect our country overseas, Congress has passed an important measure to protect our citizens’ right to express their patriotism here at home without burdensome restrictions.”
Some state legislatures have passed provisions that protect the display of flags and signs on condominium-association property:
New Jersey. The state Legislature passed legislation in 2003 protecting homeowners’ and tenants’ rights to display U.S. flags, yellow ribbons, and signs supporting U.S. troops. Sec. 45:22A-48.1 of the New Jersey Statutes says a homeowners’ association may not adopt or enforce rules prohibiting the display of the U.S. flag, yellow ribbons, or signs unless 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 property manner to display the flag.”
Courtney Holliday contributed to this article.