Armstrong: Colorado ACLU gets it wrong on HOAs and property rights

June 1, 2021 By Ari Armstrong

I love the American Civil Liberties Union. I think the state and national ACLU do some great work, even though I often disagree with their policy positions. When in 1988 George H. W. Bush derided Michael Dukakis for being a “card-carrying member of the ACLU,” Dukakis should have retorted, “You’re damn right I am and proud of it. Are you against people’s liberties?” I especially appreciate the work of Mark Silverstein, who has long worked with the state ACLU and whom I interviewed last year about people’s rights when interacting with police.

However, because the ACLU is a Progressive organization without a coherent theory of individual rights, the organization frequently missteps. Such is the case with the state ACLU’s support of House Bill 1310, a legislative effort to bar Homeowners’ Associations (HOAs) from forbidding the posting of certain flags and messages. In other words, HOAs should be legally required to allow most public messages, according to the ACLU.

An incoherent notion of property rights

People with a superficial and incoherent notion of property rights may find my position bizarre. Isn’t this a case where the ACLU is standing up for people’s liberties, whereas I’m endorsing local democracy (within an HOA) and the collective ownership of property? If you think that, in this case, the ACLU is on the side of property rights while I am not, you just don’t have a good conception of what property rights are.

The central question is whether people can own property collectively. Obviously they can. Many married couples jointly own their homes. Two or more friends can purchase a property together. Timeshares are collectively owned vacation properties. All corporations are businesses collectively owned by their shareholders.

People have a right to associate consensually, and that entails the right to collectively own property. And all collectively owned property necessarily is subject to rules–formal or informal–to which the owners choose to subject themselves. If you don’t like the particular rules at hand, then don’t agree to collectively own the property (or business) in question.

The implications for HOAs, which involve aspects of collective ownership, are straightforward. People have a right to (unanimously) form and buy into HOAs, and, by doing so, they agree to be bound by the founding rules. If you don’t like the rules, buy a house somewhere else. After living for several years under an HOA, my wife and I specifically bought a house that is not governed by an HOA.

Does that mean an HOA’s rules always make sense? No. And you have three main recourses if you don’t like an HOA’s practices. You can sue on grounds that the HOA is violating its own rules (or that the rules are contradictory or conflicting and therefore not binding in some way), you can work to take over the HOA to change its practices consistent with its rules, or you can sell out and move.

Yes, I can imagine some scenarios in which an HOA’s actions would violate the rights of some members and therefore not be legally sanctioned. I also can imagine scenarios in which marriage “agreements” would not be legally binding. The freedom to associate is bound by people’s rights. To take the most-obvious example, you can’t sell yourself into slavery.

But clearly an HOA has a right to regulate all sorts of personal choices regarding the collectively owned property. You likely can’t paint your house whatever color you want, build whatever external structures you want, or produce noises or fumes beyond what the association allows.

An HOA could not possibly function without various rules. For example, often an HOA’s grounds are collectively owned and managed. So you could not, for example, just fence off part of the common grounds for your personal garden, unless the association allowed it. Where I used to live, the HOA forbade flame-based grills on decks, which made sense given that the decks were made of wood and built atop each other on different floors.

Flying the flag

This brings us to flags and other personal commentary. Do you have a right to post whatever messages you want where they are visible to the other residents of the HOA? No, you don’t. You have ceded such decisions to your fellow collective property owners. An HOA might decide to allow members to post whatever they want, but an HOA is not morally required to do so. Yes, you have property rights, but, when you enter into an agreement to collectively own some property or aspects thereof, many of your decisions that affect the property as a whole are subject to collective approval. Again, if you don’t like that, move or don’t buy into an HOA in the first place.

Obviously, if you don’t live in an HOA, then you have an absolute right to publish whatever messages you want on your own property, however offensive they might be (with the usual exclusions such as incitements to violence). But that’s just not the topic at hand.

Silverstein and the state ACLU don’t properly recognize the legitimacy of collective ownership (which is ironic given the ACLU’s general leftward biases). Here is what Silverstein recently said regarding HB 1310:

“The First Amendment reflects our country’s strong public policy of free expression. That public policy is even stronger here in Colorado, where our state constitution protects the right to speak out even more broadly than does the First Amendment.

“The current statute is titled ‘Prohibitions contrary to public policy,’ but it takes only baby steps. It protects certain flags and election-related speech, but it allows HOAs to prohibit a pride flag, a black lives matter sign, or a Betsy Ross flag.

“But those HOA prohibitions are also contrary to public policy. Approving HB 1310 will amend that statute, end HOA censorship, and strengthen our strong constitutional traditions of free expression, individual liberty, and the sanctity of the home.”

I can at the same time greatly respect Silverstein and point out that his theories of property rights and of the First Amendment expressed here are absurd. The property rights in question are those jointly held in the HOA, and to prohibit an HOA from setting rules regarding publicly visible messages within the HOA’s boundaries is to violate the First Amendment rights of the individuals who compose the HOA.

Government’s role is to butt out

Silverstein conveniently mentions a pride flag, a BLM sign, and a Betsy Ross flag. But, as I asked via Twitter (without getting a response), “If someone in an HOA decides to fly a Nazi flag, are you saying you’re going to defend that?” Or what about a Confederate flag or a sign that says “Reimpose Slavery” or “I Hate N___s” or “God Hates F___s”? My position is that an HOA properly may prohibit such publicly visible imagery. Silverstein’s position, apparently, is that an HOA must allow it.

Now, if you’re on your own your privately held (non-HOA) property, or if you’re legally protesting in a public (government) space, then you have a First Amendment right to display whatever offensive messages you want. Members of the Westboro Baptist Church have a right to carry around signs that say “God Hates F___s,” however evil the sentiment is. But you don’t have a right to post whatever messages you want on my property, and individual members of an HOA don’t have a right to post whatever publicly visible messages they want within an HOA’s boundaries, if HOA rules restrict postings.

Silverstein is right that existing law obviously violates the First Amendment. What we’re talking about here is a government law dictating to HOAs which messages they may and may not prohibit. Although private parties may discriminate between allowed speech and forbidden speech within their own properties and inside their own events, government (properly) may not so discriminate. If government directly or indirectly dictates what speech is allowed and what isn’t, it thereby violates the right to freedom of speech. But the proper solution is for government to remain totally silent here. The solution is not, as Silverstein has it, to force HOAs to allow both American flags and Nazi flags.

HB 1310 doesn’t even level the playing field. The bill (looking at the May 27 version) says an “association may prohibit flags bearing commercial messages.” This is overt discrimination and a clear violation of the First Amendment. According to the bill, an HOA must not prohibit a Nazi flag but may prohibit a flag that says “I Heart Walmart.” I sincerely hope someone sues over this if it becomes law.

Here is a related issue. Some people argue that government inappropriately advantages or promotes the formation of HOAs, and that, without government intervention, fewer developments would be governed by HOAs. I don’t know the related legal issues well enough to judge. But, if that is the case, then the obvious solution is to stop government from so promoting HOAs, not to violate the speech rights of all HOAs. The solution to an injustice is to remove the injustice, not to pile one injustice atop another.

This is a strange issue in that many conservatives agree with the ACLU on the matter of flags and HOAs, but both groups are wrong. Government’s only proper responsibility here is to butt out. In the delimited case of the public spaces of voluntarily entered HOAs, communalism and democracy are the way to go, and they are perfectly compatible with individualism and rights, properly understood. And even card-carrying members of the ACLU should be able to understand that.