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Context: A Florida Condominium HOA prohibits signs. UPDATE: Assume that HOA governing law is FS718.

Excluding the flags described in FS718:

(4) Any unit owner may display one portable, removable United States flag in a respectful way and, on Armed Forces Day, Memorial Day, Flag Day, Independence Day, and Veterans Day, may display in a respectful way portable, removable official flags, not larger than 41/2 feet by 6 feet, that represent the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, regardless of any declaration rules or requirements dealing with flags or decorations.

Are political Flags ("Trump 2024") prohibited under the HOA's no signs rule? Why or why not?

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    Your "Trump 2024" flag seems obviously not covered under section 4. It is not a United States flag (i.e. the one with 13 red and white stripes and 50 white stars on a blue background, 4 USC § 1-2) nor is it an official flag representing any of the United States Army, Navy, Air Force, Marine Corps, or Coast Guard. Am I missing something as to why you think section 4 has any relevance here?
    – Nate Eldredge
    Commented Nov 12, 2021 at 15:15
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    @NateEldredge. You are correct, I am indicating that US Flag (potentially excluding the version flown by Blue Lives Matter) is not a political flag and has a set of permissive rules under FS718. It is provided so as to demonstrate some degree of research and to avoid the any distraction case of the official flag of the USA.
    – gatorback
    Commented Nov 12, 2021 at 15:20
  • I think you should be more clear that FS718 is a Florida statute. Also, this statute applies to condominiums. I don't see anything in it saying it applies to HOAs.
    – Acccumulation
    Commented Nov 12, 2021 at 18:38
  • @gatorback that flag is a hell of a lot older than "_ Lives Matter". Its more racist connotations seem recent; prior to that it was more of a symbol of siege mentality of "us few lawful people vs. a lawless horde". Though one leads to the other, I suppose.
    – Harper - Reinstate Monica
    Commented Nov 12, 2021 at 18:52
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    For those that have downvoted the question. Please leave a comment as to why and how I can improve the question?
    – gatorback
    Commented Nov 16, 2021 at 12:54

3 Answers 3

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Are political Flags ("Trump 2024") prohibited under the HOA's no signs rule? Why or why not?

Probably.

The Florida statute seems to imply that a flag is a type of sign and usually a political sign, even in the form of a flag, is still considered to be a sign. The Florida statute, in any case, only excludes the U.S. flag, not any other kind of flag.

The First Amendment doesn't apply to an HOA declaration, although one could argue that FS 718 is a content based restriction of speech by exempting only the U.S. flag on particular days, and not other kinds of flags on other days, but that doesn't make a remedy clear. Allowing political signs isn't an obvious remedy for a 1st Amendment violation in FS 718.

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  • Or, more precisely, a content-based restriction on restriction on speech.
    – Acccumulation
    Commented Nov 12, 2021 at 18:40
  • @ohwilleke: always good to see your thoughtful posts. Please post / cite the passage from the Florida statute that seems to imply that a flag is a type of sign before your final paragraph: HOA membership is voluntary. IMHO, FS718 does not infringe on the First Amendment. Thank you
    – gatorback
    Commented Nov 13, 2021 at 1:23
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    the US flag seems to be on any day and the service flag on special days.
    – Trish
    Commented Nov 13, 2021 at 10:12
  • @gatorback The HOA restriction itself does not infringe on the First Amendment. But, FS718 is a content-based government regulation of speech, even though it is pro-speech, so it might. Then, the question is, what is the proper remedy? One would be to hold that FS718 is invalid and the contrary HOA regulation stands. Another would be the interpret FS718 in some way that treated the specific limitations on HOA power as illustrative and was actually broader so as to make it not content based, or to find that there is an exception to First Amendment that applies for patriotic speech, e.g.
    – ohwilleke
    Commented Nov 15, 2021 at 18:37
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    "The Florida statute only excludes the U.S. flag, not any other kind of flag": the Florida statute doesn't exclude sort of flag; it removes the ability of "declaration rules or requirements dealing with flags or decorations" to prohibit the specified use of the US flag (and military flags on certain days). A condominium can make rules prohibiting other flags, or it can refrain from making those rules.
    – phoog
    Commented Nov 16, 2021 at 14:15
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That is going to depend on just how the bylaws define "sign" (if they include a definition). It will also depend on caselaw. In some states (Including I think NJ) courts have held HOA rules barring political flags and political signs violations of the first amendment rights of unit owners. I don't know if Florida has such a rule.

If there is no relevant caselaw and there is no definition of "sign" in the bylaws, I would expect a rule against "signs" not to include flags, but if the board interprets it to include flags it would take a court case (or perhaps a vote of the HOA membership) to change this, and the outcome would not be assured either way.

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  • Thank you for providing an opinion in the second paragraph. I think you are indicating the rule against signs do not prohibit flags. If this is correct, I would be interested in the "why". As I reread, it would seems the Siegel conclusion is very different from the ohwilleke opinion
    – gatorback
    Commented Nov 16, 2021 at 12:59
  • I would expect that a large flat thing bearing a message for the purpose of display would count as a sign regardless of whether it is made of a stiff material (such as metal or cardboard) or a flexible one (such as woven cloth or a plastic sheet). If you print the stars and stripes on a piece of sheet metal, does it cease to be a flag?
    – phoog
    Commented Nov 16, 2021 at 14:08
  • @phoog I have seen zoning regulations which prohibit "signs" that are not approved interpreted to exempt "corporate flags". A "flag" can mean either the symbol, which can be printed on paper or painted on a building, or an object made of fabric. A "sign" can mean only a rigid object or anything that conveys information. It all depends how the word is being used in the bylaws. Until there is clear caselaw on the matter, it remeains uncertain. On that I think ohwilleke would agree with me.
    – David Siegel
    Commented Nov 16, 2021 at 16:02
  • @gatorback I suspect (not enough info to conclude) that the word "sign" in the bylaws would be read strictly, as an actual physical sign, flat and rigid. This on the ground that rules forbidding something are often read narrowly. But I cannot be sure how a court would treat such a rule, and whether the first amendment issue would be part of such a decision.
    – David Siegel
    Commented Nov 16, 2021 at 16:07
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I have dealt with this situation in the past.

You have a non-governmental entity like a nonprofit Board of Directors (which is what HOA's are; a type of 501(C) organization). They have the legal right to craft rules within a certain purview, i.e. not conflicting with State or Federal law and not conflicting their organizational Bylaws that require a higher approval (e.g. member vote).

Now if you're in court trying to avoid HOA penalties for past actions, arguing the rule was ambiguous, that will be what it is. However...

For future actions, if it is within the purview of the HOA to ban the activity, then they can interpret their rules as having banned it.

Why? Because they could just as easily ban it explicitly with a simple rule change. "Six of one, half dozen of the other".

The common novice blunder is to try to gain an advantage by "mincing the words" of a Bylaw or other rulemaking, when that council has a right to change that rule at any time. Such efforts are misguided.

Because the council simply can change the rule.

Even if you take them to court. A savvy judge is going to recognize that the HOA or Board is the court of first impression for their own rules, especially rules which they have the legal right to change at any time.

The most the homeowner could hope for is the judge calling everyone into chambers and asking "When is the next HOA meeting? If the HOA really wanted to pass a rule explicitly banning non-government flags, could they do it at that meeting? Yes? Good. Then come back to me with recorded minutes of that meeting. I will rule then."

At which point, obviously, the judge will side with the HOA if they pass a ban, and not if they don't. In effect, the judge is kicking the issue back down to the "lower court". (where it belongs).

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    In some US state (I believe in particular NJ) courts have held that using the courts to enforce such HOA rules when those rules would be unconstitutional if imposed by the state is itself forbidden, just as enforcement of private racially restrictive covenants was forbidden. The HOA was treated, for this limited purpose, as a state actor with all the limits that implies. I don't think there has been a US Suprem,e Court case on this issue. and I don't know the FL courts' position on it
    – David Siegel
    Commented Nov 16, 2021 at 21:00
  • @Harper Thank you for the thoughtful answer. I am anticipating a defense that a flag is not a sign. I am not flying any flags, signs etc. I suspect that there is a large number of mediums to communicate: not just traditional signs / flags.
    – gatorback
    Commented Nov 17, 2021 at 13:41

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