As the nation inches closer to the 2016 presidential election, differences of opinion emerge in the form of political signs scattered across neighborhood lawns all over America. Occasionally, these signs lead to differences of opinions between community associations and residents as well.
Displaying signs is a form of speech, and the Missouri Constitution, just like the federal Constitution, has protections in place for speech. In fact, the protections offered by the Missouri Constitution, as interpreted by the Supreme Court of Missouri, are even more expansive than the protections offered by the federal Constitution.
However, many condominiums and subdivisions have adopted covenants in their governing documents to restrict signs in residents’ yards or windows. Many of these covenants are well intentioned and aimed at reducing clutter in the community, maintaining aesthetics, and generally preserving the nature and value of living in such a community. Yet these covenants may present a difficulty to residents, because by purchasing the property, they agreed to abide by the covenants laid out in the governing documents. The United States Supreme Court and the Supreme Court of Missouri have strongly upheld the right to display political signs in the face of municipal restrictions but have never directly ruled on signs restricted under private contract. So this leads to the question: When there is a conflict between a resident’s freedom of expression and the restrictions embodied in covenants in a subdivision or condominium, who wins? One recent Missouri case gives an overview of the issues involved in this murky area and some guidance, though it is not precedential.
The 23rd Judicial Circuit Court of Missouri (Jefferson County) decided Lamprecht v. Tiara at the Abbey Homeowners Association, a 2013 case in which a property owner in a subdivision had displayed political signs in violation of the covenants present in the subdivision’s indentures. Although no Missouri court had previously ruled directly on this issue, the circuit court looked to the Missouri Constitution and its interpretations in previous case law as well as how other states have ruled on the issue.
Freedom of Speech in the Missouri Constitution
The Supreme Court of Missouri has held that provisions of the Missouri Constitution may be construed to provide more expansive protections than comparable federal provisions. More specifically, Missouri recognizes free speech and voting rights as fundamental rights. The circuit court in Lamprecht held that, given those protections, political speech receives similarly expansive protection, which comports with recent cases in which the Supreme Court of Missouri has noted that Missouri’s free speech provision has been interpreted expansively, especially when addressing content-based restrictions on speech.
A content-based restriction is one in which the message conveyed by the speech determines whether the speech is allowed or restricted. The Lamprecht court noted that:
“The right of free speech under our constitution is not only secure from interference by governmental or public bodies, but under certain circumstances from interference by private actors as well. On the other hand, because the restriction is imposed by covenant, analysis is less-strict than the standard that would apply if a government entity had imposed the restriction directly.”
It is important to bear in mind that, despite added protections for free speech, the covenants an owner agrees to when purchasing a property still have effect. The covenants are superseded only when they restrict speech in a way that is unconstitutional. In order to determine whether the restriction is unconstitutional, the circuit court examined the plaintiff’s two arguments individually. First, the court used a test from a string of New Jersey cases dealing with balancing the rights of speech in a private property context. Second, the court examined the restrictions using an equal protection analysis.
1. Balancing Test
As is often the case when a court has no body of law from its own jurisdiction, the Lamprecht court looked to how courts in other states ruled on this issue. New Jersey has developed a legal test “to be applied to ascertain the parameters of the rights of speech and assembly upon privately-owned property and the extent to which such property reasonably can be restricted to accommodate these rights,” a test the court followed in Lamprecht.
In order to determine whether a covenant restricting signs in a community association is violating rights protected under the state constitution, the court considers four factors and attempts to balance the owner’s expressional rights with the private property rights impacted by covenant restrictions in the community. Using the New Jersey test, the court considered three factors:
i. The nature, purposes and primary use of such property.
Generally, individuals have a right to engage in expressive activity of their choosing on their own private property. The court in Lamprecht noted that the primary use of the property in the case was for the owner’s private and residential purposes. If the owner had been using the property for commercial purposes, the court’s analysis would take this into account as well.
ii. The extent and nature of the public’s invitation to use that property.
Closely related to the first factor, the extent and nature of the public’s invitation to use the subject property considers who is using the property. Here, as in the case of most property, the public is excluded and the property is generally reserved for private purposes by the owner and his or her guests and invitees. The law has traditionally protected owners’ abilities to use their properties as they see fit and has broadly upheld rights to privacy on such property.
iii. The purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property.
Essentially, the purpose of the expressional activity factor looks at the compatibility of the free speech the owner seeks to exercise with the current uses of the property described in the previous factors. In the Lamprecht case, the covenants completely prohibited political signs but allowed some other signs, such as “for sale” signs, builder and remodeler signs, and security company signs.
Recognizing that the covenant prohibiting political signs has the effect of “restrict[ing] political speech, which lies, at the core of our constitutional free speech protections,” the Lamprecht court quoted a U.S. Supreme Court decision originating in Missouri that residential political “signs are important for the additional reason that ‘[p]recisely because of their location’ they connect the message directly to the speaker and thus add to the words on display.” (Quoting City of Ladue v. Gilleo, 512 U.S. 43, 54-55 (1994).)
iv. The general balancing of expressional rights and private property rights.
The benefit of utilizing the final factor of the New Jersey test, to wit, general balancing of expressional rights and private property rights, was recognized in Lamprecht as having particular advantage “because that test does not pit one person’s property rights against another person’s right to free speech. Instead, it allows for consideration of three relevant interests: the Association’s property interest in managing a private development; the homeowner’s property rights in his own unit; and the homeowner’s free speech rights in his home.”
Weighing all four factors of the New Jersey test, the Lamprecht court held that the restrictive covenant prohibiting political signs in the yards of residents was unreasonable, and the defendant homeowners’ association’s enforcement of such restrictive covenant was unconstitutional.
2. Equal Protection Analysis
The Circuit Court also considered whether, aside from the analysis and test above, having the courts enforce a restriction on political signs in this manner violated the principles of equal protection afforded under Article I, Section 2, of the Missouri Constitution. In an equal protection inquiry, the court first looks to see whether the classification works to the disadvantage of a suspect class or infringes upon a fundamental right explicitly or implicitly granted by the Missouri Constitution. If so, the court must apply strict judicial scrutiny to decide whether the classification and differential treatment serves a compelling state interest.
In Lamprecht, the court noted that the right to free speech is a fundamental right, and the restriction of that free speech is an infringement upon that fundamental right. As a result, the inquiry turns to whether there is a compelling state interest in having the court enforce the covenant that restricts such speech. The court found that the homeowners’ association had no evidence of a compelling state interest that would lead a state court to enforce a content-based restrictive covenant against a member of that association. As a result, the court refused to enforce the restrictive covenant on equal protection grounds as well.
Conclusion
As the Lamprecht court noted, political signs are not incompatible with a residential neighborhood. While community associations may adopt and enforce restrictions on signs, those restrictions must be reasonable as to time, place and manner. However, the restriction on political signs in this instance applied simply because the signs were political signs. The covenants allowed residents to display other types of signs, which implied that signage in general was not the issue. Rather, the signs were restricted solely because of what they were expressing. Given these facts, the court refused to uphold the restriction against political signs.
Community associations and their governing boards are charged with the enforcement of covenants and restrictions that are imposed by prior deed upon the subject real property. For many residents, the presence of certain restrictions and conformities are precisely the reason they chose to live in such communities. However, when enforcing those restrictions, an association must consider whether the covenant is overly restrictive and encroaches on the constitutional rights of one or more of its residents. Restrictions that are reasonable as to time (such as the duration in which political signs may be placed in yards prior to or after an election), the location of signage (e.g., not closer than so many feet from the front lot line) or manner (e.g., total square footage of any sign not to exceed a certain size) are enforceable by a homeowners’ association, but the regulation must be content-neutral, meaning that the message conveyed by the speech cannot determine whether the speech is allowed or restricted.