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The First Amendment And Managed Communities

Homeowners associations often look like mini governments. If you ask a lot owner facing a fine or other violation, they will probably tell you that their HOA is an authoritarian regime oppressing the innocent owners in the community or that the Board of Directors is on a power trip. That said, Florida courts have consistently held that HOAs are not governments or “state actors” but are instead private corporations that derive their authority from contracts (as an HOAs Declaration is, at heart, just a contract between the lot owners and the HOA itself to do, or not do, certain things). This distinction is of key importance when it comes to determining what authority an HOA has to limit a lot owner’s Constitutional rights, such as the right to free speech found in the First Amendment to the Constitution. The First Amendment guarantees fundamental rights like freedom of speech, expression, and religion; however, these rights aren't absolute, and private entities like HOAs hold certain legal leeway to restrict them.

The First Amendment, principally, operates to prevent state actors (like local, state, or federal governments) from infringing on an individual’s right to speak – even if what is being said is offensive, hurtful, or even, to some degree, untrue. However, private entities that aren’t state actors are not required to observe First Amendment protections to the same degree. Florida courts have consistently found that HOAs are private creatures of contract and are, therefore, not bound by the First Amendment to the same extent as other authorities. Accordingly, HOAs can pass restrictions that abridge an individual owner’s right to what would otherwise be Constitutionally protected free speech. For example, HOAs can prohibit your expression of support for a local sports team by prohibiting the flying of team flags. (Otherwise, we would all certainly have large “Go Buccaneers” flags in our yards). In the eyes of the state, your right to express your support of a sports team is fundamental and cannot be abridged – but to an HOA, there is a risk of starting a feud between neighbors that could disrupt the peaceful feel of the neighborhood and is therefore subject to restriction.

Florida Statute Chapter 720 sets the baseline for HOA operations. While it emphasizes open meetings and resident participation, it also grants HOAs the authority to enact "reasonable restrictions" on speech that directly interferes with the use and enjoyment of the common areas and facilities. While some items of speech are protected under Chapter 720 (such as the right to display the United States and certain other flags), items that are not specifically listed in Chapter 720 may be subject to restrictions by an HOA. Determining what constitutes a "reasonable" limitation is where things get nuanced. Courts weigh individual expression against the legitimate interests of the HOA. For example, displaying a small political flag on your balcony might be deemed permissible, while an oversized banner blocking residents' balconies might be considered "interfering with their use and enjoyment." (The exact phrasing of the restrictions in your Declaration is going to have a heavy impact on how restrictions are interpreted by the courts and outcomes may vary wildly as a result).

An HOA's ability to limit speech is perhaps never more obvious than when discussing architectural review and approval. Depending on your covenants, your HOA may be able to tell you what color to paint your house specifically to deter individuality. Arguably, your right to paint your house is an act of free expression, something the First Amendment is specifically designed to protect. However, if you purchase a house subject to a Declaration that says houses can only be painted white – you have contractually waived your right to express yourself in that way. House color is only one of several typical restrictions on expression, with others including landscaping restrictions, yard sculptures/ornaments, house decoration, etc.

Since every situation is different, depending on the phrasing of the covenants, the exact act or statement being made by the owner, and the method in which the owner attempts to make a statement, there are no bright-line rules when it comes to determining if a restriction is going to be valid in the eyes of the courts. For the most part, aesthetic restrictions that seek to ensure a common appearance of the community are probably going to be held valid. Restrictions that target a specific idea are going to be harder to justify. For example, a restriction stating that only political signs featuring republican candidates will be permitted would almost certainly be found to be unenforceable. Accordingly, before attempting to amend your documents to include prohibitions on what may be considered free speech, you should consult with an attorney familiar with HOA governance and how the First Amendment applies. We can help ensure that restrictions on expression are content-neutral and are applied to protect the uniformity of the neighborhood.

Florida’s vibrant communities thrive on a delicate balance between individual expression and collective well-being. While HOAs have a certain freedom from First Amendment restrictions as non-state actors, that freedom has to be applied in a fair manner and should err on the side of allowing owners the right to speak freely amongst themselves. By fostering open communication, understanding the legal framework, and the need to involve owners in the restriction amendment process, owners and HOAs can develop a harmonious environment where both sunshine and diverse voices find their place, even within the boundaries set by the HOA itself.