Flags, Heroes and the Rest of Us

By Dave A

So, to be clear right from the start, I like the result. Actually, I love the result. What's not to love about a highly decorated veteran winning the right to fly the flag for which he fought, in front of his own home, against the preferences of a bureaucratic homeowners association? (http://www.washingtonpost.com/wp-dyn/content/article/2009/12/09/AR2009120904393.html). That's a great story that people of all backgrounds and political persuasions can support.

What I worry about is: What happens to someone who hasn't won the Medal of Honor when his or her homeowners association tells them to take the flag down? What if the facts were a little different and a decorated veteran wanted to protest the troop surge in Afghanistan by flying an American flag upside down? What if it was a non-veteran flying an anti-war flag? What if was me flying a Chicago Bears flag (Packer fans can keep their comments to themselves)?

Those of you in-the-know will respond (partially) correctly that the First Amendment doesn't apply to homeowners associations because they aren't state actors. To be precise, Congress passed legislation which allows homeowners in associations to fly the American Flag provided they follow the guidelines of the association (presumably the association must have reasonable regulations permitting American flag flying). Furthermore, the State of Illinois (and perhaps other states) has explicitly incorporated First Amendment protections in its public act which governs condominium associations. It's fair to point out that these are exceptions and, generally speaking, when one buys into a homeowners association, that person freely enters into a contract which subjects him or her to non-governmental oversight. I don't dispute this and in fact, I regularly argue in favor of personal property rights (an association of homeowners has vested property rights which they openly protect with rules, bylaws and declarations). I also believe that people are free to buy into these associations - or not - and to participate in the governance process which can establish & repeal rules, etc.

So, what's the problem? Well, I'm on the board of an association, elected just last week, and I served on another in the early 90s so I have a sense for how they act. Simply put, they act like what they are...governments. There's really no getting around it. They are obligated to tax, spend, legislate and enforce rules, all for the common good. So, if they are a government in fact, without respect to what we call them, then I believe they should be held to the most fundamental principles to which our governing bodies are held. Among these are the five freedoms protected in the First Amendment to the US Constitution. With a nod toward reality, I'd even accept the compromise of enforcing First Amendment protections on political speech, press, petition, assembly and religious freedoms rather than the broader protections of commercial speech, press, etc (enabling associations to regulate the truly important issues like paint color and grass height, perhaps even Chicago Bear flags).

When I ran for my condo board, I was a bit embarrassed by the atrocious quality of my own handwriting on the candidate form that the association distributed, so I drafted my own letter and distributed it door-to-door along with a proxy form. I signed my name, provided contact information and tried to be a good candidate - provide my qualifications without slighting other candidates or making promises I couldn't keep. I was proud of my work and my commitment to participate in the governing body that would, as a practical matter, have the greatest impact on my life. My moment of civic pride was dashed upon receiving an admonishing e-mail from the building manager who, at the direction of the board (my guess is just one or two board members) that my distribution of election material was in violation of the association rules requiring prior board review and approval (known as prior restraint, which is typically severely limited in its usage in the real world). One of the board members who would have had an opportunity to pass judgment on my material was one of my opponents. After my research and overcoming my extreme frustration and because there was no meaningful warning of a fine or other repercussions, I simply reminded the manager (a smart, courteous professional with whom I'm happy to now be working) that Illinois condominium law protects my First Amendment rights and went about my business.

I'm an attorney by training, I used to run a museum dedicated to the First Amendment and I stay abreast of First Amendment issues, and even I had to pause to do some research to determine the board had - likely - overstepped it's authority in light of state law. However, even I wasn't sure. What would non-lawyer do? Similarly, how much support would I have had in my fight should it have gotten that far? What support would a non-hero or non-veteran have had in their battle to express their political beliefs - popular or not - whether with a flag or a candidate letter to their neighbors?

It's time to eliminate the distinction, for First Amendment purposes, on governing bodies of homeowners associations and public legislative bodies. Some rights are fundamental and should be applied equally so that the law supports even those among us who haven't won the Medal of Honor.