Posted on 08/19/2004 8:57:41 AM PDT by MikeJ75
One of the bonuses of an election season is the lively debate that takes place on our front lawns. Political signs - some plain, some biting - mark the vitality of our door-to-door democracy.
Yet, for a growing number of Americans, that showcase of democracy is unthinkable. They are among the estimated 50 million people who live in communities governed by some form of homeowner association - gated, planned or retirement communities, cooperatives and condominiums. For the past several years, an estimated four out of five new housing units have fit this category. They are popular for good reason. They include access to shared services and shared property, such as pools and parks, and create a sort of instant community.
But there is a regrettable price to pay - a diminution of free-speech rights. In pursuit of noble-sounding goals such as avoiding visual clutter or keeping property values high, most such communities require residents to abide by rules against lawn signs, posters and banners of all sorts, including flags in many cases. When these communities were isolated enclaves, these private muzzles seemed less worrisome. But now that entire municipalities are beginning to be dominated by such community associations, and many more will soon be, it is time to be alarmed about what this trend is doing to our freedom to express ourselves.
Expression-free zones
Our streetscape is becoming impoverished and homogenized, and free speech is, in effect, being herded into smaller and smaller areas - similar to the ill-conceived fenced-in free-speech zone at the Democratic convention in Boston.
Donald Lamp of Omaha recently ran afoul of this phenomenon. The World War II veteran likes to hang the American flag from the balcony of his apartment in a retirement community. But that violates a policy against exterior hangings, from wind chimes to banners. Lamp, who, no doubt, had signed an agreement to abide by the rule, was told to stop hanging the flag. "I'm not about to take it down," he said. After nationwide publicity, the association backed off, making an exception to the rule for the American flag only.
What made Lamp's saga especially notable is that he is the father-in-law of U.S. Supreme Court (news - web sites) Justice Clarence Thomas (news - web sites), whose pro-First Amendment credentials are strong. In 1994, Thomas was part of a unanimous ruling in Ladue vs. Gilleo, which struck down an anti-sign ordinance in Ladue, Mo. The ordinance was enforced against Margaret Gilleo, who wanted to protest the first Gulf War (news - web sites) with posters on her property.
"Ladue has almost completely foreclosed a venerable means of communication that is both unique and important," the Supreme Court agreed. "Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community."
Little choice for homeowners
Community associations argue that when a government such as Ladue's forbids lawn signs, it is a First Amendment problem, but not when residents voluntarily sign a contract with a homeowner association that accomplishes the same thing. In the eyes of the law, that is indeed an important distinction.
But the growing pervasiveness of these homeowner associations leaves people with little choice but to sign their rights away if they want to buy a new place to live. And, according to Evan McKenzie, a political scientist at the University of Illinois-Chicago, municipalities from Las Vegas to Hilton Head, S.C., are virtually requiring that any new multi-unit housing be governed by associations. Such actions give the government's blessing to the creation of new sign-free, expression-free zones within their boundaries.
What can be done to expand, not contract, free speech in privatized communities? Residents should become more aggressive in forcing their associations, or the courts, to examine whether sign restrictions really serve a purpose.
And if the issue makes its way to the U.S. Supreme Court, the justices - some of whom live in such communities - should remind themselves of what an earlier Supreme Court said in 1946. It ruled in Marsh vs. Alabama that the First Amendment must be respected even on the streets of then-common company-owned towns.
The great First Amendment champion Justice Hugo Black wrote that it was irrelevant that Chickasaw, Ala., the town involved in the case, was owned by a shipbuilding company. Private ownership of the streets and sidewalks, he said, "is not sufficient to justify the state's permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties."
Those are words worthy of putting on a sign on anyone's front lawn, inside or outside a gated community.
Tony Mauro is a U.S. Supreme Court correspondent for American Lawyer Media and Legal Times. He also is a member of USA TODAY's board of contributors.
File this story under: "Somehow forced to consent to the voluntary rules"
Boo hoo. They knew what they were getting into when they voluntary signed the papers. They could have chosen to live somewhere else.
Why people voluntarily choose to cede even more control over their daily lives to other people is completely beyond me.
If homeowner associations are going to have the powers of governments, their powers must be restricted the same as governments are.
"If homeowner associations are going to have the powers of governments, their powers must be restricted the same as governments are."
Not really. Every homeowner in a place that has an association signs a contract with the association as a condition of living there. It's one of those things that is revealed when you decide whether or not to buy the property or rent it.
Not like government at all. Don't like the rules? Don't buy the property.
Personally, I hate homeowner's associations. That's why I would never, ever, purchase any property that was tied to one.
If you do, however, then you voluntarily agreed to the terms. Tough nuts.
I will eat my own size 11s before I live in a condo again.
Yes we knew the basics of the condo association and such, and were aware of needing permisison to plant anything, hang anything, or otherwise make changes.
But the inconsistency of the Assoc enforcement of the rules is what made life so infuriating sometimes.
Best to avoid it altogether in the future. Lesson learned.
You would be absolutely right, except...
"municipalities from Las Vegas to Hilton Head, S.C., are virtually requiring that any new multi-unit housing be governed by associations."
The great First Amendment champion Justice Hugo Black wrote that it was irrelevant that Chickasaw, Ala., the town involved in the case, was owned by a shipbuilding company. Private ownership of the streets and sidewalks, he said, "is not sufficient to justify the state's permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties."
Just in case you missed that part
Not to mention hefty monthly maintenance fees.
If this was really a problem then the market would rectify it. If the ability to have signs in the yard becomes important enough that people will pay for it, then land developers will devote more of their activities to building additions which don't have such restrictive covenants. If there is a need or desire for something in the market, the market will move to fill that need. Ain't capitalism great!
No, it wasn't missed.
But you may have missed where the restrictions in Chickasaw applied to the entire town. It's obviously a different situation when an entire town is privately owned.
Unless you can find any federal court decisions that strike down the ability of homeowners associations to restrict speech using Chickasaw as precedent.
No, they're ruled by their state constitutions.
CONSTITUTION OF THE STATE OF SOUTH CAROLINA ARTICLE I Sec. 2. The General Assembly 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 to peaceably to assemble and petition the government or any department thereof for a redress of grievances.
So SC can't directly ban signs on lawns. Far from satisfied with that restriction on their power, they mandate HOA's be established to do their bidding for them.
A de-facto infringement on free speech is the result. What a neat little loophole. Then again, slimy underhanded tactics are SOP to freedom hating control freaks.
"municipalities from Las Vegas to Hilton Head, S.C., are virtually requiring that any new multi-unit housing be governed by associations."
That's not capitalism. That's fascism.
For clarification, the article used the municipality of Hilton Head as an example, not the entire state of South Carolina.
And where is the evidence (i.e. legislative history) that suggests the reason for the Hilton Head law is to restrict free speech rights?
Their intention is irrelevent. The result is what matters.
Supposedly an extremist would claim yelling "Fire!" in a crowded non-burning theater of psychics is a free speech right, too.
Yelling fire in a crowded theatre =! a political sign on a lawn.
Got any other strawmen to whip?
The intention is absolutely relevant.
You don't think a federal judge would see a difference in a city passing such a law for the sole purpose of restricting speech versus passing a law that has, as a side effect, restricting speech?
"Honest guys, we didn't mean to infringe on free speech. Snicker snicker he he"
You don't think a federal judge would see a difference in a city passing such a law for the sole purpose of restricting speech versus passing a law that has, as a side effect, restricting speech?
After CFR was upheld, its safe to say federal judges are poor choices to consult on issues of free speech.
But I see your point in a way. It's unlikely they're mandating HOA's for the sole purpose of prohibiting lawn signs. Their motivations are likely as numerous as the number of restrictions on HOA covenents. They want dumbed down, bland and tightly controlled McNeighborhoods, the wishes of the market be damned. And if they don't have to bother with passing and defending a host of laws because HOA's will do it for them, all the better.
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