Articles

Flag Display Controversies Continue

By Steven F. Casey, Esq. - Jones Walker LLP

A recent news story is a reminder that flag display controversies continue to be an issue for community associations to address.  An Alabama woman appeared on “Fox & Friends” recently to complain that her neighborhood homeowner association has demanded that she remove her U.S. flag display.  (Alabama homeowner defies HOA request to remove flag pole: 'Old Glory is still waving' | Fox News).

The homeowner claimed to have sought Association permission to install a stand-alone flagpole in her front yard, but after waiting 3 days for a response, proceeded to have the structure installed without permission.  A few weeks later, a letter from her community association instructed her to remove the flagpole.  She has resisted, saying that she and her family are patriotic and wish to honor her family’s military service by flying the nation’s flag and the U.S. Army flag in this way.

The restrictive covenants for this particular community state very clearly that “[no] flag poles, other than those mounted on the home and no longer than four (4) feet shall be erected on a Residence without the prior written consent of the ARC.”  That particular association seems, therefore, to have a reasonable basis for its position.

In addition to an association’s covenants, of course, there are statutory provisions that must be considered.  The Freedom to Display the American Flag Act, Pub.L. No. 109-243, 120 Stat. 572 (2006), restricts the ability of community associations to prohibit their members from flying the U.S. flag.  Under the Act, however, HOAs are permitted to place reasonable restrictions on the time, place, and manner of the display to protect a “substantial interest of the association.”  Whether an association’s restrictions on the flying of the U. S. flag are “reasonable” or not, and whether those restrictions serve a “substantial interest of the association,” of course, are matters of judgment.  If an association’s statement of policy is challenged in court, it is likely that a local, elected, circuit court judge will be the one to make that determination.

While there is no way to predict the outcome of such litigation with complete accuracy, judicial decisions from a few such cases give us some guidance.  Generally, the courts have viewed restrictions that moderate the size of U. S. flags displayed, as well as their placement on or near homes, have been upheld.  Such approved guidelines for the display of our nation’s flag most often seem to have uniformity of display within a neighborhood as the main goal.

Even if a policy is sound and complies with the law, an owner who believes that the restrictions in the HOA policy are unreasonable could still file suit and cause the Association to spend thousands of dollars litigating the issue.

Earlier this year, a bill providing similar restrictions on an HOA’s ability to prohibit the flying of the Alabama state flag, was introduced in the Alabama legislature.  I have not yet determined whether that legislation was ever passed.  The terms, however, were essentially the same as the federal legislation referenced herein.

Restrictions on the display of other flags (political, seasonal, sports-related, etc.) are easier to support and do not violate any widespread legal principles.  Although some homeowners have challenged such restrictions on free speech grounds, courts have generally held that since HOAs are not governmental entities, they are not subject to such arguments, as long as the display restrictions don’t favor specific political positions over another.

Some associations prohibit sports-related flags, while some allow them.  Some associations allow them with restrictions, such as game day display only, but those kinds of restrictions, while appearing to be reasonable and strike a good balance, often present enforcement challenges.  The same is true with seasonal flags.

In light of the potential controversy over this issue, it is wise to ensure that your association’s governing documents state your flag policy clearly and that you enforce them uniformly.  No matter how hard you try, however, you may attract unwanted media attention.  If that happens, seek legal assistance as needed, early in the process.