What type of flag can I display on the outside of my house?
The First Amendment prohibits the government from interfering with a citizen’s right to free speech, but homeowners associations are not government entities. Their ability to censor expression is much broader. “For a constitutional violation to occur, you need a state actor,” Rovinsky said. “Yes, you have free speech, but while the government can’t violate that, your HOA can say you can’t put up a Black Lives Matter sign. “
Residents who challenged the HOAs have been more successful in arguing violations of the Fair Housing Act or the Civil Rights Act, both of which prevent discrimination based on race, religion, or gender. “A court would want to look for discriminatory intent,” Rovinsky said.
Mr. Pendery was told he would have to seek approval to fly his flag, which he chose not to do. Instead, he filed an Open Case Request to see if there were any irregularities in how and when his district applied his flag guidelines. He read 500 pages of emails from district committee members and then contacted the American Civil Liberties Union of Colorado, which sued the district on his behalf.
“I believe it was a selective application,” Mr. Pendery said. “My flag was clearly so blatant that within 48 hours of being installed I received a letter about it. I have not seen this kind of hasty action taken against their other directives. “
The Colorado ACLU won an injunction on March 4, and the district is currently developing new language that removes the requirement that residents submit flags for approval before they are flown. “I put my flag up the same day,” Pendery said. The incident, he said, was a lesson for his children, ages 2 and 8.
“We have argued this cause because it is important to stand up for what you believe in and what is right,” he said. “The most important thing I want them to know is that there are people who have been marginalized or taken advantage of, and you have to stand up for the little guy. You have to stand up for your family.