HOAs can’t pick and choose which speech to limit. Ban one flag, ban them all | Opinion

A homeowners association is facing a lawsuit and a young Idaho family is considering leaving the state because they felt targeted over complaints about their Black Lives Matter flag.

According to a story by the Idaho Statesman’s Nick Rosenberger, the couple claim in their lawsuit that they were targeted because of the content of their flag. They say other flags, including Trump flags, Thin Blue Line flags and sports flags, were allowed to stay. They said the only other neighbor they could find who was told to remove their flag was someone also flying a Black Lives Matter flag.

Hubble Homes, which controlled the HOA at the time, said the case is being reviewed.

The case raises the sticky issue of whether homeowners associations should — or even can — restrict what could be considered free speech.

A valid argument can be made that it’s a First Amendment issue.

Telling someone what flag they may or may not fly in front of their private property could be considered a violation of freedom of speech.

But we recognize that people move into neighborhoods that have HOAs to protect their investment in their house.

In addition to taking care of public areas within the neighborhood, HOAs prevent neighbors from letting their grass grow into weeds, paint their house hot pink or park a junk car on their front lawn.

That same concept can be extended to the flags and signs that are allowed.

Limiting the flying of a Nazi flag, for example, is simply protecting everyone’s investment in their property. Who would want to buy a house next to someone flying Nazi flags?

But if you limit the Nazi flag, you’re going to have to limit others as well.

Idaho law prevents homeowners associations from prohibiting the display of the American flag, the Idaho flag, the POW/MIA flag or an official or replica flag of any branch of the U.S. armed forces.

But other than a reasonable restriction on size, the law is silent on restrictions of other flags.

This is not to say that the state doesn’t have an interest in limiting the power of some restrictive covenants.

The United States has a shameful history of covenants banning sales of homes to people of color, for example.

Hundreds of Boise-area homes, and likely many more throughout the state, have restrictions in their covenants, conditions and restrictions document that says people of color aren’t allowed to buy or live at that property, according to previous Idaho Statesman reporting. The Fair Housing Act of 1968 outlawed housing discrimination based on race, but the covenants often remained unchanged.

The Idaho Legislature in 2022 passed a bill that allows homeowners to clarify that any racist language is unenforceable and void.

In that case, equal protection outweighs the right to contract.

Some could argue that, similarly, in the case of limiting flags in a neighborhood, the interest in a robust public forum outweighs the right to contract, and that people should generally be able to express themselves however they want, not just by displaying one particular flag that’s protected.

But we think HOAs can and should have rules about flags, that the right of self-expression in this case can infringe on the rights of others.

You can imagine the slippery slope that’s at play here if homeowners associations didn’t place restrictions on flags.

In neighborhoods without an HOA, we can readily see the vigor with which some political supporters fly their flags and announce to the world which candidate they support.

If one political flag is allowed, why not two? Why not three? Why not a dozen? Or more?

It seems pretty clear to us why a resident would want a homeowners association to step in and set limits.

But those limits need to be practiced equally across the board. Any sign or flag regulation should be content-neutral.

If a homeowners association is going to tell residents they can’t have a Black Lives Matter flag, it has to enforce that ban equally throughout the neighborhood to other message-oriented flags.

Otherwise, it’s selective enforcement. And that’s discrimination.

Allowing some forms of speech while banning others is most certainly a First Amendment issue.

Statesman editorials are the unsigned opinion of the Idaho Statesman’s editorial board. Board members are opinion editor Scott McIntosh, opinion writer Bryan Clark, editor Chadd Cripe, newsroom editors Dana Oland and Jim Keyser and community members Mary Rohlfing and Patricia Nilsson.