Condo Media - January 2016 - 31

If some owners push the
limits in challenging
reasonable regulations,
there are also boards that
sometimes go too far in
restricting the activities
of owners.

ties Inc., AAMC, who says most of the
free-speech conﬂicts he has encountered
have been fairly minor ("putting a lawn
gnome in the front yard") and resolved
easily-usually by asking owners to do or
not do something, or to do it differently.
When boards have asked owners to
remove or relocate an offending object,
Wolf says most people are reasonable.
But some aren't. "Five percent in every
community will push the limits of what
they can and can't do," Shaffer says.
This cuts both ways. If some owners
push the limits in challenging reasonable regulations, there are also boards
that sometimes go too far in restricting
the activities of owners. "When boards
are considering regulations involving
speech, religion, or anything that might
be controversial, they're walking down a
very dangerous road [that could lead to
litigation]," Wolf says.
In these cases, he advises boards to
seek legal advice. He has actually paid
for a legal opinion himself when a board
refused to get one, because he wanted
trustees to hear from an attorney and
not from a manager that the action they
were contemplating might be illegal.
"If the attorney says, 'You can't do
this,' and the board says, 'We don't care,
we're doing it anyway,' we have to ask if
this is the right client for us," Wolf says.
"At that point, it probably isn't."
LESS IS MORE
Association attorneys and managers
generally agree boards should adopt

the least restrictive and intrusive
restrictions necessary to achieve their
goals. This is especially true when
dealing with litigation-prone issues,
such as speech or religious displays.
Apart from the litigation risks, Shaffer
says, heavy-handed restrictions aren't
conducive to neighborly relations or to
building community spirit.
Moriarty agrees: "Just because a
board can legally prohibit something
doesn't mean it's a good idea."
When it comes to restrictions on
religious expression or speech, boards
must tread cautiously and draft
carefully, making sure any rules they
enact will pass the reasonableness
test if challenged in court, Moriarty
emphasizes. To get over the
reasonableness hurdle, any restrictions
on expression (oral or visual) should be
content neutral, targeting their method,
manner, location, and timing, but not
the messages they convey.
For example, a rule prohibiting
notices advertising a meeting of a
Muslim organization but allowing
notices for meetings of other
groups would likely not be deemed
"reasonable" and would be vulnerable
to a religious discrimination charge,
Moriarty says. A rule barring the
posting of disparaging comments about
board members but allowing other
comments might be similarly viewed
as an unconstitutional infringement
on free speech. But a rule barring the
posting of notices or displays of any

kind in common areas, in his view,
would be both content neutral and
consistent with the board's reasonable
interest in protecting the aesthetics of
the community.
DEALING WITH FLAGS
Some issues will be easier to navigate
than others. The display of ﬂags, for
example, is governed by a federal law
that specifically allows residents to
ﬂy the American ﬂag but also allows
condominium associations to adopt
reasonable rules regulating their size
and location. Some boards fear if some
owners display American ﬂags, other
owners will insist on displaying the
ﬂags of other countries or other causes
as well.
A content-neutral rule can address
that concern, Moriarty says. He suggests
something like this: "Flags, banners,
rugs, and all other displays are prohibited in common areas, except as authorized by law." The federal law specifically
authorizes the display of American ﬂags;
it doesn't apply to any others.
Religious displays are more complex, triggering Fair Housing laws
(barring discrimination based on
religion), as well as constitutional
protections. (Political speech is also
complex and something of a special
case. See sidebar.)
Displaying religious symbols isn't
just a cultural expression, Shapiro says.
In many religions, it is a requirement.
Practicing Jews, for example, are
January 2016

Condo Media - January 2016

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