III. First Amendment Rights: Freedom of Expression The statutory language used in the Freedom to Display the American Flag Act of 2005, as applied to homeowners associations, is consistent with the language of First Amendment cases involving government regulation of speech in public and publicly accessible places, including sidewalks, streets, and public parks. This choice of language is significant because it essentially transposes the protections of individuals against government interference under the First Amendment to the protections of individuals against interference from private actors.
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.
1st Amendment, U.S. Bill of Rights, U.S. Constitution
• 1st Amendment Content-Based Restrictions - More Favorable Treatment for the U.S. Flag
Significantly, the Freedom to Display the American Flag Act of 2005 advances the important government interest of patriotism but applies more favorable treatment for the display of the U.S. flag as compared to the display of other flags. This regulation of content-specific speech, specifically favoring the U.S. flag, can be regulated either in the affirmative right to display the flag or in a prohibition, such as the inability to display the flag. Generally, content-based restrictions are subject to strict scrutiny by which the burden would be on the government, or similarly in this case on the homeowners association, to show that any restriction on speech was necessary to achieve the compelling governmental interest. In U.S. v. Eichman, 496 U.S. 310 (1990), the Supreme Court struck down the Flag Protection Act of 1989 prohibiting the destruction of the U.S. flag (flag burning) as unconstitutional because the law contained an implicit content-based limitation on the scope of prohibited conduct and thus unlawfully suppressed speech. The court explained that it violated the First Amendment because the law applied specifically to the U.S. flag, not all flags.
Consider a homeowners association rule that allows only the U.S. flag to be flown. Notably, the Freedom to Display the American Flag Act of 2005 does not address state flags, military flags, P.O.W. flags, foreign flags, etc. Accordingly, open questions include whether homeowners regulations pursuant to federal law can restrict lawfully the flag displays solely to the U.S. flag but not other flags; only the current 50-star U.S. flag but not non-50 stars flags; the U.S. flag and foreign country flags but not state flags; or the U.S. flag and state flags but not military or POW flags, etc. For POW/MIA flags, see the discussion below about what the law means for individuals.
• 1st Amendment Content-Neutral Restrictions - Time, Manner, and Place
In contrast to strict scrutiny analysis applied to content-based restrictions, courts have upheld content-neutral speech regulations under an intermediate scrutiny analysis (similar but distinct from the intermediate analysis used for laws and regulations related to gender and illegitimacy) upon a showing that they advance an important interest unrelated to the suppression of speech, do not burden substantially more speech than necessary to further the important interest, and apply in a nondiscriminatory manner. Even greater leeway is granted to regulations that restrict the "time, place, and manner." Such restrictions generally are found to be valid when they are narrowly tailored to achieve an important interest. The regulation will not be upheld where it is overbroad or overly vague. Thus, the business bears the burden of demonstrating overbreadth or vagueness.
Symbolic Political Speech as "Protected Speech"
Should flying the U.S. flag receive special consideration as protected political speech? In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court upheld the right of public school students to wear black armbands in protest of the Vietnam War because it constituted protected speech and did not substantially interfere with school discipline or the rights of others. Following that analysis, private citizens should be able to fly the flag as long as the flag does not substantially interfere with the use and enjoyment of public areas. Thus, a flag that extends beyond the areas of one's exclusive use and control could be regulated when it substantially interferes with another's use.
What Does This Mean for Individuals
First, you also should check to see if your state has adopted legislation. Several states recently enacted legislation consistent with the federal law.
What about my First Amendment rights and freedom of speech? Historically, the First Amendment protects you against interference from the government. In a 2007 case involving the posting of political signs in a 10,000 member planned community governed by a non-profit homeowners association, the New Jersey Supreme Court held that: (a) Twin Rivers was a private community, (b) the public was not invited to use the property, (c) the plaintiffs voluntarily entered into private contracts granting the association the right to enact rules, and (d) the plaintiffs freedom of expression and expressive activities were not unreasonably restricted by a rule that required one sign per window. Committee for a Better Twin Rivers v. Twin Rivers Homeowners' Ass'n, 929 A.2d 1060 (N.J. 2007). Significantly, the decision in Twin Rivers relied on the "time, manner, and place" analysis and did not preclude a future challenge based on First Amendment rights against the homeowners association: "Our holding does not suggest, however, that residents of a homeowner association may never successfully seek constitutional redress against a governing association that unreasonably infringes their free speech rights." The court also advised that homeowners have other legal protections, such as those under business and agency relationships. Thus, the court suggested that prospective plaintiffs consider claims based on breach of fiduciary duty; arbitrary decision-making; and "fraudulent, self-dealing or unconscionable" actions when adopting restrictions.
Your first line of action should be local. If your town imposes such restrictions, get involved in getting the restrictions overturned or modified. Remember, as a citizen you have a voice in how rules are made, passed, promulgated, and modified. If you would like to test the waters and challenge the restrictions in court, you could argue that your right to political expression cannot be contracted away in areas within your exclusive use and control. You also could lobby your elected state and federal representatives for guidance.
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