Political Signs in Community Associations: Balancing Free Speech and Bylaws
As election day nears, it is common for owners in a community association to begin displaying political signs. For unit owners, the erection of a political sign can be seen as an invocation of their freedom to expression guaranteed under the First Amendment to the U.S. Constitution and Article I, Section 4 of the Illinois Constitution. In contrast, community associations often have rules restricting certain types of signs. This article explores the interplay between the constitutional concerns and the ability of community association bylaws or rules and regulations to restrict free speech.
Free Speech under the U.S. Constitution and the Illinois Constitution
The First Amendment to the U.S. Constitution states:
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.
Article I, Section 4 of the Illinois Constitution states:
All persons may speak, write and publish freely, being responsible for the abuse of that liberty.
The First Amendment to the U.S. Constitution protects individuals against state actors but it does not protect individuals’ rights against private entities such as community associations. People v. DiGuida, 152 Ill. 2d 104, 121 (1992). Illinois courts have found that the same is true of Section 4 of Article I of the Illinois constitution. Id. at 124. While a condominium association is considered a private entity, 765 ILCS 605/18.4(h) of the Illinois Condominium Property Act (the “Condominium Act”) protects unit owners’ individual rights against condominium associations. However, the Illinois Common Interest Community Act (the “Community Act”) does not contain a companion provision for community associations that are not organized as condominiums.
765 ILCS 605/18.4(h) of the Illinois Condominium Property Act
Some states have enacted statutes which expressly ban community associations from prohibiting the outdoor display of political yard signs by an owner or resident. By way of example, the Washington state legislature enacted RCW 64.90.510(2) which provides that “[HOAs] may not prohibit display of signs regarding candidates for public or association office, or ballot issues, on or within a unit or limited common element, but the association may adopt rules governing the time, place, size, number, and manner of those displays.”
Although Illinois does not have a similar statute explicitly pertaining to political yard signs, 765 ILCS 605/18.4(h) of the Condominium Act provides that the association may not adopt a rule which “may impair any rights guaranteed by the First Amendment to the Constitution of the United States or Section 4 of Article I of the Illinois Constitution.” As noted above, Section 4 of Article I of the Illinois constitution does not protect individuals’ rights against private entities such as a condominium association. In light of Section 18.4(h) of the Condominium Act, Illinois courts have struggled with whether a condominium association may violate an owner’s First Amendment rights.
Boucher v. 111 E. Chestnut Condo. Ass’n, Inc., 2018 IL App (1st) 162233
Illinois courts have held that Section 18.4 of the Condominium Act forbids an association from impairing any rights guaranteed by the First Amendment, not from violating the First Amendment itself. Boucher v. 111 E. Chestnut Condo. Ass’n, Inc., 2018 IL App (1st) 162233; Goldberg v. 400 E. Ohio Condo. Ass’n, 12 F. Supp. 2d 820, 824 (N.D. Ill. 1998). In Boucher, the circuit court dismissed the plaintiff’s claim because the condominium association was not a state actor. Boucher at ¶ 14. The circuit court believed that Section 18.4(h) could only apply if a government entity controlled the property. Id. Under this interpretation, any private condominium association could forbid any political activity and any religious display in the condominium because the private condominium association would not count as a state actor. Id. at ¶ 18.
To address this issue, the Boucher court looked to the legislative history of Section 18.4(h) of the Condominium Act. According to the 2000 version of the Historical and Practice Notes for section 18.4(h):
“[A] board of managers could not prohibit unit owners or their tenants from knocking on neighbors’ doors for purposes of political campaigning. * * * [The guarantee of constitutional rights was inserted] in response to boards who were attempting to severely restrict first amendment activity of owners and occupants, especially political activity.” Id.at ¶ 16, citing 765 ILCS Ann. 605/18.4, Historical and Practice Notes, at 109 (Smith–Hurd Supp. 2000).
Noting that the court must interpret the statutes in light of the problems the legislature intended to address, the court held that Section 18.4(h) “forbids a board from ‘impairing any rights guaranteed by the First Amendment,’ not from violating the Amendment itself.” Boucher at ¶ 18. The court concluded with the following:
“Looking again to the legislative history, we conclude that a plaintiff can state a statutory cause of action against a condominium association by alleging that he put up an unobtrusive religious symbol on his door as an expression of his religion and the association told him to take it down. The association may have violated the plaintiff’s rights, even if it never adopted any pertinent rule, regulation, or declaration. Similarly, a plaintiff states a cause of action against an association for violation of his right to free speech by alleging that the association precluded him from expressing his political opinion or that the association penalized him for expressing his opinions.” Id. at ¶ 20.
Accordingly, a condominium association may violate a unit owner’s right to free speech by enacting an overly restrictive rule or by completely precluding the unit owner from expressing a political opinion.
What can community associations do?
In light of Boucher, a condominium association should be careful when crafting rules related to political signs. Illinois courts have typically found that there are two categories of cases when a condominium association attempts to enforce rules of restrictive use:
“The first category is that dealing with the validity of restrictions found in the declaration of condominium itself. The second category of cases involves the validity of rules promulgated by the association’s board of directors or the refusal of the board of directors to allow a particular use when the board is invested with the power to grant or deny a particular use.” Apple II Condominium Ass’n v. Worth Bank & Trust Co., 277 Ill.App.3d 345, 213 Ill.Dec. 463, 659 N.E.2d 93, 98 (1995) citing Hidden Harbour Estates, Inc. v. Basso (Fla.App.1981), 393 So.2d 637.
In Apple II, the court, relying on the court’s holding in Basso, found that:
“Category one” restrictions are clothed in a very strong presumption of validity and will not be invalidated absent a showing that they are wholly arbitrary in their application, in violation of public policy, or that they abrogate some fundamental constitutional right. “Category two” restrictions are treated differently. When the discretion of the Board is challenged by a unit owner, the Board must affirmatively show the use it wishes to prohibit or restrict is “antagonistic to the legitimate objectives of the condominium association.” In such cases, courts consider whether the restriction will promote the health, happiness and peace of mind of the unit owners. Apple II at 468.
Accordingly, a condominium association should be wary of promulgating a rule that expressly prohibits political signage in an association. If the condominium association’s declaration and bylaws contain a restriction on political signage, the association may enact certain rules to limit political signage. These rules may seek to limit the size of a political sign, limit where the sign may be erected or limit the number of signs a unit owner may display.
Community associations are not municipalities. Nevertheless, community associations could look to the restrictions municipalities have implemented as a guide when enacting their own rules. In Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984), a city ordinance prohibited the posting of signs on public property. The Supreme Court determined that the ordinance was not aimed at any particular content and was a proper content-neutral time, place and manner restriction. Accordingly, using this logic, community associations likely could enact a prohibition against political signage in any common elements. Additionally, in City of Waterloo v. Markham, 234 Ill. App. 3d 744, 600 N.E.2d 1320 (5th Dist. 1992), a city imposed a 90-day limitation period in their zoning ordinance on all temporary signs. The court determined that the ordinance was not a content-based restriction on protected speech because the ordinance regulated all temporary signs. Accordingly, a community association could enact a rule restricting a time period on temporary signs.
Conclusion
In an era fraught with heightened political discourse, community associations should be careful of promulgating rules related to political signs. While a blanket prohibition against political signs will violate the Condominium Act, both condominium and homeowners associations can enact reasonable rules and regulations regarding the number of signs, the size of signs, location of signs, and duration that signs may be displayed. When drafting rules related to political signs, a community association should seek the advice of a community association attorney as this can often be a hot button issues.
Jeremy Fernando is an Associate Attorney at Hirzel Law, PLC. Mr. Fernando is licensed to practice law in the state of Illinois. He concentrates his practice on community association law, condominium law, homeowners association law, and real estate law. Mr. Fernando’s legal career includes serving in corporate practice where he represented insurance companies and institutional investors in U.S. and cross-border private placements of securities, including transactions in the Netherlands, England, Ireland, Australia, and Germany. Mr. Fernando earned his Juris Doctor from Marquette University Law School, where he graduated with honors and ranked in the top 15% of his class. He also served as an Associate Editor of the Marquette Law Review. Mr. Fernando is committed to providing effective legal representation to his clients and is passionate about helping communities navigate complex legal challenges. He may be reached at 312-552-7669 or jfernando@hirzellaw.com.
