Q. As election season approaches, I am anticipating—in light of the current divisive nature of our society—that we’re going to see some political battles arising in our condominium community. Over the past year or so, we’ve seen some residents posting flags or signage in their windows related to support for Ukraine, and more recently, Israeli, Palestinian, and/or American flags as a response to the Gaza situation. These have been pretty much ignored by our board. But with the election looming, I feel we may start to see more political signs or posters popping up around the community. I thought our bylaws prohibit signs, and the homeowners could be told to remove them or be fined—but someone told me that the courts have said we can’t limit political speech.

Could you offer an update on where this issue of “free speech” stands in regards to HOA communities today?

                                   —Getting the Message

A. “Massachusetts’ Courts have addressed the issue of free speech and the first amendment rights on a couple of occasions,” says Norman F. Orban, partner at Allcock & Marcus in Braintree, Massachusetts. “In Board of Managers of Old Colony Village Condominium v. Preu, the Massachusetts Appeals Court examined a unit owner’s placing of signs critical of management in the common areas and a request by the board of trustees to prohibit this unit owner from communicating with the board. The Massachusetts Court held that the condominium’s attempt to use the Massachusetts Condominium Act constituted a ‘State Action’ to trigger the application of the First Amendment, thus determining that the First Amendment applies to condominiums.  

“At least one Massachusetts Trial Court has applied the Preu decision in striking down a community association’s efforts to prevent an owner from posting a ‘Black Lives Matter’ sign.  In Jess v. Summer Hill Estates Condominium Trust, a Massachusetts Trial Court judge granted a preliminary injunction preventing a condominium from prohibiting an owner from posting a ‘Black Lives Matter’ sign, where other signs were allowed to be posted without restriction.

“While the cases referenced above place restrictions on an association’s rights to restrict signage at community associations, it does not mean that restrictions cannot be imposed. Restrictions can be imposed so long as they are content neutral—meaning that a restriction can be imposed provided that it is applied the same to all such content. 

“For example, in the Jess case referred to above, the issue was that this particular association allowed certain signs while restricting another. Had the association uniformly applied their sign restrictions, the outcome would have likely been different. Should an association wish to restrict a sign for a political candidate or similar issue, it may be done only if the restriction is applied uniformly to all signs in terms of content, time, manner, and place.”