The flagpole isn't in front of the home in unincorporated Jefferson County. Instead, the pole is mounted in the backyard, where it's visible to commuters on Bowles Avenue, one of the major east-west routes in the area. As a result, thousands of people passing by every day see the display: an American flag flying upside down, in the international symbol of distress, over a "Don't Tread on Me" banner.
In a neighborhood a mile or two away, a Trump 2020 flag flew alongside the traditional stars and stripes outside a house for more than a month after the homeowners' association for the community sent out a letter reminding residents that the election was over and all political displays needed to be removed. The Trump flag finally vanished following last week's big snowstorm, but multiple pro-police Thin Blue Line flags, which some people criticize as racially insensitive (a blue stripe is laid out between two black stripes, with white stripes beyond), continue to wave in the area.
Such displays have drawn far less attention in metro Denver than flags and signs saluting the Black Lives Matter movement or gay pride. But ACLU of Colorado legal director Mark Silverstein believes all of them should be protected. "The situation we're in now is that there are probably hundreds of thousands of Coloradans who are silenced because they live in HOAs or metropolitan districts with restrictions," he says. "And I just don't think it's worth silencing them because of the risk of putting up a potentially offensive symbol."
Homeowners in Littleton and Lafayette are currently at odds with their HOAs over BLM-related messaging, while Arapahoe County's David Pendery is suing Whispering Pines Metropolitan District #1 over restrictions regarding both a Pride flag and a sign that reads, "We Believe Black Lives Matter, No Human Is Illegal, Love Is Love, Women's Rights Are Human Rights, Science Is Real, Water Is Life, Injustice Anywhere Is a Threat to Justice Everywhere."
Colorado's ACLU branch is representing Pendery in the court action, and Silverstein says the fact that his neighborhood is part of a metropolitan district, a quasi-governmental agency, rather than an HOA, is important. "The First Amendment clearly applies to a governmental organization like towns and cities and also metropolitan districts," he says. "In contrast, HOAs will say they are not the government and they're not bound by the First Amendment. So there are additional complications in raising these issues in court with an HOA."
Nonetheless, a page on the ACLU of Colorado's website is actively seeking information on issues related to signage and homeowners' associations in the state. "The ACLU of Colorado believes that the right of free speech includes your right, at your own home, to post a sign or fly a flag that expresses your views," its introduction states. "We are investigating complaints that HOAs have objected when residents have displayed pride flags or Black Lives Matter yard signs." The page then poses a pointed question — "Has your homeowners association (HOA) or Metro District sent you a recent violation letter or threatened a fine because you were flying a certain flag or posted a certain sign in your yard?" — and encourages those who answer "Yes" to contact the organization.
Silverstein confirms that the number of people visiting this page has gone up substantially since the Pendery lawsuit was filed in late February— and although no legislator has introduced a bill to limit an HOAs' ability to restrict the speech rights of residents, he's hopeful that one will do so during the 2021 session. He notes that several states have laws that deal with HOA bans on certain flags and signs, including California. Here's an excerpt from that state's statute on the subject:
(a) The governing documents may not prohibit posting or displaying of noncommercial signs, posters, flags, or banners on or in a member's separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law.
(b) For purposes of this section, a noncommercial sign, poster, flag, or banner may be made of paper, cardboard, cloth, plastic, or fabric, and may be posted or displayed from the yard, window, door, balcony, or outside wall of the separate interest, but may not be made of lights, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component, or include the painting of architectural surfaces.
(c) An association may prohibit noncommercial signs and posters that are more than nine square feet in size and noncommercial flags or banners that are more than 15 square feet in size.
In Silverstein's view, legislation that would allow Black Lives Matter signs would naturally encompass the Thin Blue Line flag and more. "I don't know how to draw a distinction that would be upheld in court," he notes.
Still, his personal experience suggests that dueling messages are perfectly fine. "I don't live in a neighborhood with an HOA, so I'm free to put up a 'We Believe' sign, and my neighbors are also free to put up their own signs or fly flags," he says. "And it works."
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