Community Association Restrictions on Political Signs

Date: October 27, 2016

With the presidential election fast approaching, political signs featuring names of candidates have covered lawns across Virginia. The placement of political signs on private property within community associations raises competing interests. On the one hand, signs are a form of speech that some residents believe should garner the protection of the First Amendment to the U.S. Constitution. On the other hand, signs may detract from the appearance of a community, invite negative community connotations and detrimentally impact property values. Accordingly, many community associations have governing documents that restrict signage. Some of these restrictions prohibit all signs other than “for sale” or “for lease” signs, while other merely limit the size, number, and placement of signs generally.

How should an association balance the interests of allowing certain speech with the ability to restrict signage?

Generally, when owners buy into a community association they contractually agree to abide by the provisions in the community's governing documents. In doing so, residents often agree to relinquish some general rights. Although cities and other government entities are constrained by the First Amendment in regulating political yard signs, there is no similar restraint imposed on community associations. While cities are state actors subject to the provisions of the U.S. Constitution, community associations are private parties that do not qualify as state actors. Accordingly, a community association that restricts the placement of signs is not impermissibly infringing on the free speech rights of its residents in violation of the United States Constitution.  

A caveat to this general First Amendment principle is that state courts are free to interpret the free-expression provisions in their state constitutions more broadly than the federal courts interpret the First Amendment to the U.S. Constitution. For example, in 2012, the New Jersey Supreme Court ruled that an association's policy banning all signs, including political signs, violated the free speech clause of the New Jersey State Constitution. Notably, the Supreme Court of Virginia has not yet addressed this issue with respect to Virginia's constitutional free speech provisions.

Although Virginia courts have not placed free speech limits on the ability of community associations to regulate signs, the Virginia legislative branch has attempted to do so. In 2012, a Virginia Delegate proposed HB 1008. This legislation would have invalidated any community association prohibition against an owner exercising his or her constitutional right to free speech on his or her own property. Ultimately, however, that piece of legislation was continued to the 2013 session of the General Assembly and, subsequently, died without getting passed.

This means that until the Virginia courts or the General Assembly rule or legislate to the contrary, associations remain authorized to enforce their covenants, rules and regulations, including restrictions that reasonably limit or prohibit signs on properties in their respective communities. As always, the specific provisions of your own governing documents will control your actions. Before restricting political signs, ensure the documents in place give the association the right to regulate signs to begin with. If there is no prohibition on signs in the covenants, community associations may be able to make rules regulating rather than prohibiting political signs, but communities without express authority to restrict signage should proceed with caution.

Also, although community associations may have the ability to restrict the presence of political signs, a global restriction may not be in the practical best interests of the community.  The more prudent course is to impose reasonable restrictions on the number of signs (1 or 2) , the location of the signs (back far enough to avoid impacting traffic), the size of the signs and the duration of the signs (e.g., three weeks prior to election to put up/two weeks after the election) be enacted. 

We reach this conclusion for a couple of reasons.  First, most people's knee jerk reaction to outright prohibiting political signs is that it violates a person's right to freedom of speech—and perhaps the proximity to Washington, DC only heightens one's belief in his/her freedom of speech. While this is not technically correct, it is a common perception. Second, in the event political signs are outright banned, there is a strong potential for inflaming owners to file and pursue suit against the Association, which may result in potentially-explosive legal fees the Association would incur in defending such a suit. As such, we advise that instead of outright banning political signs, that the community associations adopt reasonable rules regarding the size, placement, and timing of such political signs. 

The state of the law concerning sign restrictions continues to evolve and each association must pay close attention to its own governing documents, so associations should contact legal counsel to discuss potential issues and for advice on navigating the best course forward for your community.