Stars and Stripes and Sleepless Nights
Flag disputes in community associations can quickly fly in the wrong direction. Pledge your allegiance to federal and state laws, your attorney’s advice, and common sense.
By Edward Hoffman Jr., Esq.
©2020 Community Associations Institute
IT'S HARD TO FATHOM how much litigation has ensued over the seemingly simple issue of the ability of a community association resident to fly an American flag, but there are disputes involving the size of the flag, the size of the pole, the location of the flag, the location of the pole, a flag being flown with no pole, multiple flags being flown instead of one, and innumerable others.
Federal law—the Freedom to Display the American Flag Act of 2005—states that community associations “may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property." The law allows associations to place reasonable restrictions pertaining to the time, place, or manner of displaying the American flag necessary to protect a substantial interest of the association. Many states also have their own statutes regarding flags.
Disputes about flags in community associations usually begin when there is some type of overreach—either by a resident or by the association, and sometimes by both. In most cases, after some back and forth, the association and the resident find an acceptable middle ground, an American flag stays up, and everyone goes their separate ways. But it's not always that easy.
In October 2019, after a rejection by the association and many months of legal wrangling, a Vietnam War veteran resident of the Equestra at Colts Neck Crossing active adult community in Howell, N.J., was finally granted permission to install a nonpermanent, staked flagpole to keep his American flag hanging in his garden bed.
The association only allowed flags attached to the home, but the resident contended that it was difficult for him to climb ladders to reach the flags, that the brackets on the pole connected to the home frequently break, and that the pole didn't allow him to fly the flag at half-staff.
While an amicable resolution was eventually achieved, it came at the expense of time, money, and energy of both parties, and it also resulted in local news media covering a dispute between a Vietnam War veteran and an association about an American flag.
Another fairly well-known legal battle that garnered national attention involves Air Force veteran Larry Murphree and the Tides Condominium at Sweetwater by Del Webb Master Homeowners' Association in Jacksonville, Fla. The battle over flying the American flag started in 2011, when Murphree placed a small flag in a flowerpot by his front door.
The association asked him to remove the flag, so Murphree sued. The association eventually settled, allowing him to keep the flag so long as it was in compliance with association rules and the law.
However, by 2013, the association revised its rules to prohibit anything but the actual plant from being allowed inside a flowerpot. The association subsequently began fining Murphree for the violation, so the owner sued once again. The case ultimately ended up in state court with each side making claims against the other, and the matter went to trial in February. As of the writing of this article, to the author's knowledge, no verdict has been handed down, likely due to the outbreak of COVID-19 delaying the judicial process.
Disputes about flags in community associations usually begin when there is some type of overreach—either by a resident or by the association, and sometimes by both.
These examples raise several questions. Why are community associations fighting over flags with veterans—of all people? What is reasonable? What battles should actually be fought? And why are people even fighting over these issues to begin with?
The American flag means a lot of things to a lot of people. It's not just an issue of American pride or patriotism, but it also is an emotional issue that simply cannot be explained. That's why people are willing to dig in their heels, and associations will similarly do so to enforce their covenants.
The end result is that these disputes will never go away in community associations. Perhaps the lesson to be learned is that sometimes seeking an early solution by way of alternative dispute resolution, such as through nonbinding mediation, may allow for a reasonable discussion to occur and for a third party with no vested interest to make reasonable recommendations for each party to consider.
And let's not forget common sense, which can be foreign to some. It can, and should, be used when issues like these develop.
But how should community associations handle other flags?
Old Glory, but modified. It's important to note that the federal law on American flags is only applicable to the flag as defined by the U.S. Flag Code: 13 horizontal stripes, alternating red and white, with 50 white stars on a blue field.
Despite any arguments to the contrary, Americans flags that have other embellishments such as the Marine Corps' Semper Fi logo, an Army star, or a “thin blue line" to support law enforcement are not protected by federal law. Community associations can prohibit these flags.
State flags. Many states also have passed their own statutes that prohibit associations from completely prohibiting the display of the American flag as well as state flags. In all my years of practicing law and representing associations in Pennsylvania and New Jersey, I have never received a question about someone being allowed to fly a state flag. My guess is that this is a bigger issue in Texas, South Carolina, and other states where there is immense pride in their flag.
Decorative flags. I've fielded plenty of inquiries relating to residents displaying other flags in the community, including but not limited to those representing colleges, professional sports teams, seasons, holidays, Bible verses, and charitable foundations or issues. I am not aware of any federal, state, or local laws that would prevent an association from prohibiting or restricting residents from flying or displaying these types of flags so long as the recorded, private covenants that run with the land specifically allow for it.
Where there is no specific covenant relating to flags, the association must ensure that some other language exists that would support a prohibition or restriction. This is typically in the form of an outright ban on displays or decorative items placed outside the home or unit or a restriction (such as size and location) that would encompass and include other flags by its nature.
If no language is present in the covenants, and the association decides to handle the issue through the rulemaking process rather than a covenant amendment, there is risk that such a rule may be unenforceable if challenged. Finally, if there is no prohibition or restriction present, and residents are happily displaying other flags in the community, an amendment project to prohibit or restrict these flags would likely fail before it even starts.
Military branch and support flags. Another recurrent issue involves flying military branch and prisoner-of-war or missing-in-action flags. There appears to be no federal protection for these in community associations, but various states, such as Illinois, Texas, and Florida, have included them in their statutes. The advice here is: Check with association counsel before making any decision on these flags. Your state may have a law that deals with them.
Cause-based flags. What about “Hate Has No Home Here" flags? During the 2016 election season, they popped up with increasing frequency as residents in associations attempted to assert their First Amendment right to freedom of speech.
Now, as the 2020 election approaches and as the U.S. deals with the COVID-19 pandemic and racial equality protests, “Hate Has No Home Here" flags have been joined by “Stay Home, Save Lives" and “Black Lives Matter" flags.
The freedom of speech argument doesn't necessarily apply in these situations. In very general terms, and as related solely to the discussion of the issues in this article, the First Amendment of the Constitution provides that the government (which now includes local and state governments) cannot make laws that abridge freedom of speech:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The emphasis on “the government" in the First Amendment is an important one. There must be “state action" by a “state actor" in order to trigger application of First Amendment rights. In other words, the government must be seeking to curtail or otherwise limit someone's First Amendment rights for protections to apply.
Community associations are private entities and can enact restrictions or covenants that limit speech. Most states don't consider communities “state actors" and won't overturn private association covenants, but a few state courts have found in favor of homeowners in freedom of speech cases.
Pennsylvania isn't one of these states, at least according to two important cases.
In Midlake on Big Boulder Lake Condominium Association v. Cappuccio, the Pennsylvania Superior Court in 1996 upheld an association restriction that prohibited owners from posting any type of sign on or in a unit or a common element that would be visible from the outdoors.
The court held that the association was a private, not governmental, organization. As a result, the association was entitled to enforce its restrictions without violating the First Amendment. In reaching its decision, the court also found that the owners contractually agreed to abide by the restrictions in the covenants at the time they purchased the home, thereby relinquishing their freedom of speech.
In Anelli v. Arrowhead Lakes Community Association, Inc., a restriction on “For Sale" signs was contained in the association covenants. Homeowners who could not sell their home posted a sign in front of it. The Pennsylvania Commonwealth Court held in 1997 that the association restriction on “For Sale" signs was enforceable since the association is not a governmental entity and is permitted to restrict “speech."
Thus, at least in Pennsylvania, “Hate Has No Home Here" and other cause-based flags would not be afforded protection under the First Amendment. The association's private covenants, if applicable and restrictive, would be determinative.
Once again, though, contact the association counsel if this issue manifests. Your state may have differing protections that would alter the outcome.
Political flags. Community association residents have divergent political leanings and opinions on various issues, and many want to support their preferred political party and its candidates. They often do so by putting a sign or flag in the lawn or window of their home.
But since they live in a community association, can they be displayed if the association's covenants and restrictions say they can't? Can communities limit where they can be placed? In the state of New Jersey, the answer appears to be: It depends.
Remember, a little common sense goes a long way. Often, flag issues should, and can, be resolved before they end up in court or are plastered across social media and cable news networks.
In Committee for a Better Twin Rivers v. Twin Rivers Homeowners' Ass'n, the New Jersey Supreme Court upheld in 2007 an association's ability to enforce sign restrictions, including “political" signs, as the contractual (association) restrictions still reasonably allowed for the placement of such signs in a window and in an identified area of the lawn.
Five years later, the New Jersey Supreme Court issued another opinion in Mazdabrook Commons Homeowners' Ass'n v. Khan. This time, the court ruled in favor of the homeowner.
In Mazdabrook, a homeowner was running for local political office and posted two of his campaign signs inside of a window and a glass door of his home. The distinction between this case and Twin Rivers was that the association's restrictions in Mazdabrook essentially banned almost all types of signs, except for one “For Sale" sign.
The court held that the sign restriction violated the New Jersey Constitution, which provides that “… [e]very person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right." In coming to its decision, the court concluded that an owner's right to post a political sign outweighed the impact on the association's private property interests.
It appears that the distinction between the cases was that the Twin Rivers restrictions permitted political signs but restricted their location, while Mazdabrook did not permit political signs in any manner, stifling the homeowner's right to assert political speech in accord with the state constitution.
The same analysis likely would occur if, instead of a lawn or window sign, residents displayed a flag with their preferred candidate's name emblazoned across it. In my eyes, these flags are merely political campaign signs, and they may be permitted by vague covenants when other types of exterior signs or displays may otherwise be prohibited. (Read more about political signs in “Signs of the Times.")
Flag issues will always be present in community associations, so association boards and community managers must be educated on the topic and handle them correctly before they go the wrong way. The cogent advice of association counsel should be sought.
Remember, a little common sense goes a long way. Often, flag issues should, and can, be resolved before they end up in court or are plastered across social media and cable news networks.
Edward Hoffman Jr. is the founder of Hoffman Law LLC, a community association law firm with offices in Pennsylvania. He is a fellow in CAI's College of Community Association Lawyers, the current chair of the CAI Keystone Chapter's Legislative Action Committee, and is a member of the Chapter's Poconos Regional Council. He is licensed to practice law in Pennsylvania and New Jersey. ed@hoffmanhoalaw.com.