Q: I live in a large community governed by a Home Owners’ Association (HOA). It recently passed a regulation that restricts political signs to 6 days prior to an election and 15 days after. This violates the recent Supreme Court ruling in Reed vs Gilbert, but it is unclear if this applies to an HOA. I’d like to resist this regulation if there are reasonable grounds.
A: HOAs may generally restrict certain forms of expression because they are not “state actors,” but are instead private associations created by contract. Because the enforcement of HOA covenants does not implicate action by the state, the free-speech clauses of the federal and state constitutions generally will not apply to HOAs. Golden Gateway Ctr. v. Golden Gateway Tenants Assn., 26 Cal. 4th 1013, 1028 (2001). In that case, a divided California Supreme Court found that a restriction on distributing unsolicited newsletters in an HOA-governed apartment complex did not implicate state action, and therefore the restriction was permissible.
However, the court was careful to emphasize that “our decision today does not give apartment owners carte blanche to stifle tenant speech. Tenants may still have remedies under conventional property law principles. Moreover, many statutes and ordinances serve to protect tenants against unreasonable lease provisions and restrictions.” Id. at 1035. Note also that Golden Gateway involved the unsolicited distribution of pamphlets in privately-owned areas—which is sometimes but not always constitutionally protected activity—not the posting of signs on private property, which may receive heightened constitutional protection.
As such, though it may be an uphill struggle to argue the free speech clauses of the state and federal constitutions apply in full force to your HOA, you may have remedies based on the unique facts of your situation, or under other provisions of law. A local lawyer may be able to provide you with more in-depth analysis of your situation.
Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.