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How Best to Handle Political Speech Issues in a Homeowners Association
By Andrew S. Parslow, Esq.
The Greek politician Pericles said, “Just because you do not take an interest in politics, does not mean politics is not interested in you.” The political divide in the United States is becoming increasingly heated. While many homeowners’ associations would rather avoid this issue, this divisiveness can impact the harmony of an association and potentially lead to liability for member conduct. An association may consider passing restrictions on inflammatory political activity within an association. However, they should be careful not to interfere with members’ right to free speech. This topic will be particularly relevant in 2024 with the upcoming presidential election.
This article discusses what restrictions on political speech an association can impose to preserve harmony in the community, the extent to which certain forms of member speech are protected by law, the extent to which certain forms of nonmember speech are protected by law, as well as how an association can best avoid liability for the consequences of members’ speech. Note: Political speech can refer to internal association politics, such as the election of board members, or external politics, such as state officials. This article focuses on speech regarding external political issues. Speech can include oral statements and political conduct, such as petitioning and canvassing.
Permissible Restrictions By The Association
Contrary to what some might think, the First Amendment and Californian Constitution protections on free speech do not apply to homeowners’ associations in most cases. Generally, constitutional protections for freedom of speech are only applicable to areas open to the public. The California Supreme Court has held that these constitutional protections do not apply to homeowners’ associations when the association “is privately owned, and … the owner restricts the public’s access to the complex.” See Golden Gateway Center v. Golden Gateway Tenants Assn. (2001) 26 Cal. 4th 1013, 1033. While not every association will satisfy this criteria, the lion’s share of homeowners’ associations are privately owned by members and have restricted access to their amenities to the public.
Associations also benefit from a presumption that any provisions in their governing documents are valid and enforceable. See Nahrstedt v. Lakeside Village Condominium. (1994) 8 Cal. 4th 361. This means that if a member files a lawsuit against an association alleging the governing documents violate their right to free speech, the member must prove the rule or restriction is unconstitutional or otherwise unenforceable.
Rights Of Members
Despite not having a constitutional right to free speech in a homeowners’ association, members still have some rights to political speech guaranteed by statute. Civil Code §4515 prohibits an association from restricting members’ rights to gather at reasonable hours to discuss political matters, invite candidates for public office to speak at the association, canvass and petition association members, and distribute or circulate information regarding political issues. While an association cannot prohibit such conduct, it can limit such activity by imposing reasonable restrictions. Reasonable restrictions include requiring that meetings be peaceful, meetings not be excessively noisy, and that political activities be limited to reasonable times of day.
Members’ rights are even stronger when it comes to what they can display on the exterior and yard of their property, even if the area is considered an exclusive-use common area. Civil Code §4710 protects members’ rights to place noncommercial banners and signage in their yard and on the exterior of their property. With some exceptions, an association cannot prohibit noncommercial signs and posters that are nine square feet in size or less and noncommercial flags or banners that are fifteen square feet in size or less. Noncommercial signage below the maximum height can only be prohibited if:
• it is made of certain materials such as lights, roofing, siding, paving materials, flora, or balloons,
• such a prohibition is required for public safety,
• or the display violates a pertinent law.
Rights of Non-Members in the Association
Even if they are not residents of an association, members of the public may, in some instances, have political speech rights within a homeowners’ association. As previously stated, general constitutional protections on speech do not apply to homeowners’ associations due to associations’ public access restrictions. When an association opens its amenities to the public, such as renting out facilities for weddings or allowing nonresidents to use its golf course, nonmembers may have the right to canvas, petition, and distribute political materials.
Further Avoiding Problematic Conduct In The Association
Despite an association’s best efforts, there is always a risk that members will take offense to other members exercising their rights to speech. This could lead to retaliatory conduct between members.
Perhaps the simplest and most effective method an association can employ to curtail problematic speech and reactive actions members may take to political speech is a catch-all prohibition in the governing documents on activity that constitutes a nuisance. This broad restriction allows an association to prohibit members from engaging in harmful or offensive activities without expressly prohibiting any form or content of speech.
