Freedom of speech is the right to state one’s opinions or ideas without suffering punishment or censorship from the government. It is important to remember that associations are not the government; therefore, while many homeowners wish to express their opinions, political or otherwise, through signs, flags, and banners, associations have the absolute right (with a few exceptions) to censor a majority of this type of speech.
Speech Protected by Statute
Unless an association’s declaration allows for certain types of speech in the form of flags or signs, with the exception of the following, this type of personal expression may be banned by an association. Pursuant to the Colorado Common Interest Ownership Act (“CCIOA”) the following flags and signs may not be banned or restricted by an association:
- American Flags: Owners have a statutory right to, at a minimum, display the American Flag on their lot, in the window of their unit, or on a balcony adjoining their unit. The America Flag is defined as a flag which has “thirteen horizontal stripes, [and which] alternate red and white; and the union of the flag shall be forty-eight stars, white in a blue field … on the admission of a new State into the Union one star shall be added to the union of the flag.” No other iteration or variation of the American Flag is protected by statute, this includes the confederate flag, the Betsy Ross flag, and the 3% flag, to name a few. Further, the American Flag must be displayed in compliance with the Federal Flag Code. An association has the right to ban an American Flag which is not displayed in compliance with the Federal Flag Code. Finally, an association has the ability to adopt rules and regulations regarding the placement and manner of display of the American Flag. However, such rules and regulations may not contradict anything provide for in the statute.
- Service Flags: Service flags are also protected by statute and may not be banned by an association. Section 106.5(1)(b) of CCIOA states “a service flag bearing a star denoting the service of the owner or occupant of the unit, or of a member of the unit owner’s or occupant’s immediate family, in the active or reserve military service of the United States during a time of war or armed conflict, [may be displayed] on the inside of a window or door of the unit.” However, the association may adopt rules and regulations regarding services flags, including a maximum size limitation of not less than nine inches by sixteen inches.
- Political Signs: Finally, political signs are protected by CCIOA. One political sign per political office or ballot issue that is contested is permitted on a lot, within the boundaries of a unit, or in the window of a unit. A “political sign” is defined as a sign which includes a message meant to influence the outcome of an election or the passage of a ballot measure. While the Association does not have the power to prohibit political signs, it does have the power to: (1) limit the dimensions of political signs to the lesser of: (a) the maximum size allowed by any applicable city, town, or county ordinance; or (b) thirty-six inches by forty-eight inches; (2) limit the number of political signs to one per ballot measure or political office; and (3) limit the display of political signs earlier than forty-five days before the day of an election and later than seven days after an election day.
If a declaration prohibits any of the above types of speech, creates more restrictive timeframes, more restrictive flag or sign dimensions, or more restrictive display locations, the statute will trump. If a declaration is silent as to flags and signs, anything is permitted unless an association adopts a sign and flag policy which, at a minimum, allows the above types of speech. Any attempt by an association to enforce something in contravention of the above limits will result in liability exposure for the association.
Speech Permitted in the Declaration
In addition to speech protected by statute, individual declarations may protect other forms of speech. For example, a declaration may allow “For Sale” or “For Rent” signs, or may allow holiday signs and banners, or sports flags. Anything permitted in a declaration, unless in contradiction with one of the statutory provisions outlined above, must be permitted. On the other end of the spectrum, a declaration may be completely silent as to flags, signs, and banners. If a declaration is silent, no restrictions exist and any sign, flag, or banner may be displayed in the community unless it violates some other provision of an association’s declaration.
Rules, Regulations, and Policies Restricting Speech
Depending on how an association’s declaration is drafted and what types of flag and sign provisions exist, a board may want to adopt rules, regulations, or policies further clarifying restrictions on flags, signs, and banners. However, before formally adopting any rule, regulation, or policy to restrict such items, an association will need to consult with its legal counsel, and consider the following:
- Does the declaration specifically allow for any signs, flags, or banners? If so, as long as the same is not in violation of the above statutes, these items are specifically permitted in the community.
- Once an association determines what is specifically permitted, an association will need to determine whether or not the declaration speaks to American Flags, service flags, or political signs. If the declaration is silent as to these items, no restrictions exits. Thus, any number and type of America Flags or political sign may be displayed. If an association would like to limit flags and political signs, a policy should be adopted in compliance with CCIOA, as outlined above.
- A board must also determine if it wishes to restrict other types of flags and/or signs. For example, if a declaration is silent to all signs and flags, an association may have the ability to adopt a policy banning certain types of signs and/or flags. An association may also have the flexibility to adopt rules, regulations, or a policy that prohibit or limit some, but not all, flags and/or signs.
- The final thing to consider when dealing with flags and signs is the actual definition of what constitutes a flag and what constitutes a sign. Is a flag with a political message on it deemed to be sign or a flag? Can owners circumvent the rules when signs are prohibited, but flags are not? If an association is going to adopt rules, regulations, or policies regarding flags and signs, these terms need to be defined to avoid enforcement confusion.
Hopefully, the above has clarified the intricacies relating to signs and flags. For more information, please contact one of our attorneys at 303.432.9999 or at [email protected]