An unwelcome mat for free speech

Article Courtesy of USA Today

By Tony Mauro
Posted August 18, 2004

One of the bonuses of an election season is the lively debate that takes place on our front lawns. Political signs some plain, some biting mark the vitality of our door-to-door democracy.

Yet, for a growing number of Americans, that showcase of democracy is unthinkable. They are among the estimated 50 million people who live in communities governed by some form of homeowner association gated, planned or retirement communities, cooperatives and condominiums. For the past several years, an estimated four out of five new housing units have fit this category. They are popular for good reason. They include access to shared services and shared property, such as pools and parks, and create a sort of instant community.

But there is a regrettable price to pay a diminution of free-speech rights. In pursuit of noble-sounding goals such as avoiding visual clutter or keeping property values high, most such communities require residents to abide by rules against lawn signs, posters and banners of all sorts, including flags in many cases. When these communities were isolated enclaves, these private muzzles seemed less worrisome. But now that entire municipalities are beginning to be dominated by such community associations, and many more will soon be, it is time to be alarmed about what this trend is doing to our freedom to express ourselves.

Expression-free zones

Our streetscape is becoming impoverished and homogenized, and free speech is, in effect, being herded into smaller and smaller areas similar to the ill-conceived fenced-in free-speech zone at the Democratic convention in Boston.

Donald Lamp of Omaha recently ran afoul of this phenomenon. The World War II veteran likes to hang the American flag from the balcony of his apartment in a retirement community. But that violates a policy against exterior hangings, from wind chimes to banners. Lamp, who, no doubt, had signed an agreement to abide by the rule, was told to stop hanging the flag. "I'm not about to take it down," he said. After nationwide publicity, the association backed off, making an exception to the rule for the American flag only.

What made Lamp's saga especially notable is that he is the father-in-law of U.S. Supreme Court Justice Clarence Thomas, whose pro-First Amendment credentials are strong. In 1994, Thomas was part of a unanimous ruling in Ladue vs. Gilleo, which struck down an anti-sign ordinance in Ladue, Mo. The ordinance was enforced against Margaret Gilleo, who wanted to protest the first Gulf War with posters on her property.

"Ladue has almost completely foreclosed a venerable means of communication that is both unique and important," the Supreme Court agreed. "Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community."

Little choice for homeowners

Community associations argue that when a government such as Ladue's forbids lawn signs, it is a First Amendment problem, but not when residents voluntarily sign a contract with a homeowner association that accomplishes the same thing. In the eyes of the law, that is indeed an important distinction.

But the growing pervasiveness of these homeowner associations leaves people with little choice but to sign their rights away if they want to buy a new place to live. And, according to Evan McKenzie, a political scientist at the University of Illinois-Chicago, municipalities from Las Vegas to Hilton Head, S.C., are virtually requiring that any new multi-unit housing be governed by associations. Such actions give the government's blessing to the creation of new sign-free, expression-free zones within their boundaries.

What can be done to expand, not contract, free speech in privatized communities? Residents should become more aggressive in forcing their associations, or the courts, to examine whether sign restrictions really serve a purpose.

And if the issue makes its way to the U.S. Supreme Court, the justices some of whom live in such communities should remind themselves of what an earlier Supreme Court said in 1946. It ruled in Marsh vs. Alabama that the First Amendment must be respected even on the streets of then-common company-owned towns.

The great First Amendment champion Justice Hugo Black wrote that it was irrelevant that Chickasaw, Ala., the town involved in the case, was owned by a shipbuilding company. Private ownership of the streets and sidewalks, he said, "is not sufficient to justify the state's permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties."

Those are words worthy of putting on a sign on anyone's front lawn, inside or outside a gated community.

Tony Mauro is a U.S. Supreme Court correspondent for American Lawyer Media and Legal Times. He also is a member of USA TODAY's board of contributors.