Markkula Center of Applied Ethics

Where speech isn't so free

By Rob Elder

On the governor's desk, awaiting his signature or veto, is a bill that would significantly increase the free speech rights of thousands of Californians.

Beneficiaries would be people who live in what the law calls "common interest developments," which are those with homeowner associations.

At present, these associations can and often do prohibit members from flying flags or posting signs. In 2002 the Legislature exempted American flags. But this has led to some odd inequalities.

From my home in a private development on the coast, I can see the U.S. flag flying from four houses, and it waves over dozens of others in this community, including mine. Most of us put up our flags just after the
terrorist attacks of Sept. 11, 2001, to express common cause and care for our country.

But early this year, as the Bush administration prepared to invade Iraq, the flag took on more complicated connotations for some Americans. I have friends who felt that by flying the flag they were supporting the Bush administration's decision to invade, occupy and remake Iraq, with or without support of the United Nations.

That's not the message I wanted to send. I feared that the American venture into Iraq would cost more and last longer than President Bush led us to believe, and doubted his rationalizations for acting without broad
international support.

As more American soldiers have died and the occupation has devoured more taxpayer dollars, I have increasingly felt that the cost in lives and money should be shared by many nations, not just the U.S. and U.K. So I bought and began flying a blue and white United Nations flag, as well as my U.S. flag.
But not for long.

A neighbor complained. A security officer from the homeowner association appeared at my door, informing me that regulations did not allow flags. "What about all these American flags?" I asked. I was told about the state law exempting U.S. flags from homeowner association regulations.

I understand the logic of treating the stars and stripes as a special case. But it seems to me unfair that my neighbors could fly flags supporting the war while I could not add a U.N. flag to make a more conditioned statement.

In a similar way, it seems unfair that people who don't live in common interest developments can put up yard signs supporting candidates in the Oct. 7 election, while whose of us subject to homeowner association
restrictions cannot.

I realize that we accepted those restrictions when we bought property in private communities. But did we sign away our freedom of speech? Surely not. I hesitate to say that restrictions on flags are unethical, but one test of whether something is ethical is whether it is fair.

California's Assembly and Senate also are troubled by homeowner association restrictions on political expression. Both have passed AB1525, which provides that homeowner associations may not prohibit members from displaying noncommercial flags or signs that do not jeopardize public safety or violate local, state or federal law.


Associations can, the bill says, limit signs and posters to nine square feet, and flags to 15 square feet. Typically, flags for home use measure three feet by five feet.

Granted, not everyone likes flags in residential neighborhoods and many would gladly forego lawn signs. But American homes already bristle with U.S. flags, and I doubt that other flags and political signs will significantly alter neighborhood aesthetics. I hope the governor signs AB1525.

For more information about AB1525, contact its author, Assemblyman John Longville of San Bernardino, at Assemblymember.Longville@assembly.ca.gov. To urge Gov. Gray Davis to sign or veto the bill, email
governor@governor.ca.gov.

This article originally appeared in the San Jose Mercury News on Friday October 10, 2003.


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