DO CONDOMINIUM BOARDS HAVE THE RIGHT TO RESTRICT SIGNS?
QUESTION: Our condominium association has a rule barring the display of signs in common areas or in locations visible from common areas.
Some board members say we are required to make an exception for political signs. Is that true?
ANSWER: The key question is whether condominium boards have the authority to restrict the right to freedom of speech, guaranteed by the Constitution.
A decade or so ago, we would have said unequivocally that the answer was yes. The courts had consistently recognized that only governmental entities are required to protect constitutional rights. Because condominiums are private property, not public spaces, because associations are not governmental entities, and because owners choose to live in their communities voluntarily, the courts had reasoned, condo associations could restrict Constitutional freedoms in ways that governmental entities cannot.
That legal consensus has shifted over time, however, and the courts have become more inclined to view condo associations as quasi-governmental actors, required to recognize, at least to some degree, the constitutional rights of their residents, particularly if the condominium relies on state law to support its claims or a portion of them.
Also worth noting, a Massachusetts Superior Court has held that residents of a condominium have free speech rights related to the state’s constitution.
In addition, the Massachusetts Appeals Court has found that condominium associations may, in fact, be viewed as “government actors” in some cases. Specifically, the Massachusetts Appeals Court held that where a condominium seeks to use the state condominium statute to support its claim to recover legal fees against an owner accused of violating a sign prohibition, the condominium’s policy will be subjected to First Amendment scrutiny. And the New Jersey Supreme Court has ruled significantly that a condo association’s ban on all signs was unconstitutional because it prohibited the display of political signs, impinging on political speech which, the court noted, “lies at the core of our Constitutional speech protection…[which] is fundamental to democratic society.”
In considering a policy governing political signs, your board should consider these decisions, the judicial reasoning behind them, and what appears to be clear trend toward curbing the authority of condominium boards to govern their communities. The board should also consider the reaction of owners, many of whom may want to express their political views by displaying political signs. Some owners are likely to challenge a policy banning signs and there is a better than even chance that the courts will side with them.
But “reasonable” restrictions similar to those the courts have accepted for the display of flags are likely to pass muster with both owners and the courts.
Following those guidelines, owners could display political signs but the board could restrict the “time, place and manner” of the displays.
That means you can dictate the size of the signs and where owners place them – on their own property, for example, and not in common areas, or, if in common areas, not on sidewalks or streets where they would create a safety hazard. You can also specify a period before and after an election when the signs can be posted.
And you can restrict the “manner” of the display, prohibiting signs with flashing neon lights or loud noises that would constitute a nuisance to residents.
Any restrictions you impose must be content neutral, however. That is, you can’t dictate what signs can and cannot say, you can’t permit signs supporting one candidate or one position but not others, and enforcement must be consistent and even-handed.
Some owners may challenge any restrictions the board imposes, but reasonable restrictions on signs are less likely to anger owners and more likely to survive a challenge than a policy banning them entirely.
Contact Gary Daddario for the implementation of a sign restriction or for questions about rules pertaining to political sign displays.