What Did That Say?? Political Signs & Free Speech
It is often said that this U.S. presidential election has been the most polarizing election in modern times, if not all time. Because of the strong opinions on every side, more and more community associations are having to address not just the mere existence of these signs, but also the content.
With the presidential and local elections on the horizon (finally), the existence of signs demonstrating support for the candidates have certainly increased. But the particular political climate means that communities are not only having to apply state law and provisions of their governing documents to the political sign issue, but may also have to review their governing documents for provisions relating to offensive or inappropriate displays.
In Washington, non-condominium HOA communities have some guidance in RCW 64.38.034, which provides that communities may not prohibit display of political yard signs “before any primary or general election.” The intent of the statute is to provide a forum for owners to express “core political speech,” which is often touted as the most protected form of free speech under the First Amendment. For this reason, even though the Condominium Acts in Washington and Oregon and the Oregon Planned Communities Act do not contain similar provisions, these communities can find guidance in the Washington HOA Act’s provision to ensure that its regulations regarding signs are not unconstitutional.
Note that the Washington HOA Act also provides that the community can have reasonable rules and regulations regarding the placement and manner of display of political yard signs. This language mirrors the U.S. Supreme Court’s allowance of reasonable “time, place and manner restrictions” on free speech. Generally, these restrictions have to be content-neutral – meaning that an Association cannot ban all Trump signs or all Clinton signs. Many communities have regulations that provide that such signs cannot be posted on common areas, must not exceed certain reasonable sizes, cannot be posted more than a certain number of days before a presidential or local election, and/or must be removed shortly after the election. Many of these are enforceable as reasonable restrictions. Stacked condominiums often prohibit the display of all signs in windows, including political signs, but unless an owner has another appropriate venue to display his or her political preference, the owner may have a legitimate challenge to enforcement of the rule with respect to political signs.
The current political climate appears to have fostered a combination of the most protected type of speech (political), with the utterly unprotected (obscenity). Thus, political signs that contain obscenities or that otherwise violate a community’s offensive language regulations can likely be prohibited. While citizens have a right to political speech, they have no right to the use of obscenities in signs. Thus, if a community member displays a political sign containing obscenities or offensive language, it may be prohibited so long as the prohibition is on the offensive language, not the political content. Given the strength of many citizen’s opinions on the current presidential election, communities should take great care, to ensure that it is regulating the obscenity, not the political viewpoint. Whenever potential First Amendment rights are involved, communities should seek an opinion from counsel regarding enforcement of its governing documents.