Civil Liberties

Let His Freak Flag Fly?

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On the face of it, this looks like one of the cases where the ACLU should be commended for defending the free speech rights of people with whom it does not necessarily agree: Andy McDonel wants to fly the Gadsden ("Don't Tread on Me") flag from the roof of his house in Laveen, Arizona, and the state chapter of the ACLU says he is entitled to do so. The problem: McDonel is not fighting an intrusive local ordinance or boneheaded state law; he is fighting the rules of his own homeowners' association, rules that he accepted when he bought his house. As the lawyer for the Avalon Village Community Association notes, "anyone considering residing in a community association should carefully review the association's governing documents beforehand to ensure that the community is a good fit for them."

In response to disputes like this one, the Arizona legislature passed a law overriding homeowners' associations that ban outdoor flag displays. Although the statute mentions only the American flag, the state flag, Indian nation flags, and flags of the armed services, the ACLU argues that "the Gadsden flag meets the spirit of the law." In other words, the ACLU is defending McDonel's freedom of speech by supporting state interference with the contract and property rights of his neighbors, who have chosen to live in a development with picky aesthetic rules and presumably derive some benefit from that arrangement.

There are similar problems with claims that the First Amendment or similar provisions in state constitutions protect the right to say whatever you want in private shopping malls, an issue I discuss here and here. Likewise with the assertion that the Second Amendment guarantees the right to carry guns on other people's property.

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  1. There’s a whole lot of irony in this.

  2. Off topic, but counting down to the first right-wing tirade about the Discovery gunman’s manifesto in three, two, one…

  3. In other words, the ACLU is defending McDonel’s freedom of speech from discrimination by supporting state interference with the contract and property rights of his neighbors,

    For the ACLU, this is really not a stretch.

    1. How about the homeowners’ association supporting state interference with the rights of freedom of expression?

      1. How about this – the very idea of a busybody’s association exists as a creation of the state?

  4. This also raises the always-interesting issues of whether homeowners’ associations differ from small towns such that libertarians should be concerned about the “laws” of one but not those of the other.

  5. I completely agree, with only one teensy-tiny hesitation:

    In the modern hyper-regulatory environment, it is not uncommon for real estate development to be impossible unless property owners placate tyrannical and expropriatory community boards by promising to shackle homeowners in their developments into these HOAs.

    As a result, the thumb of the state is firmly on the scales limiting the choices home buyers have.

    In that context, not every homeowner is actually completely “free to live outside an HOA”.

    If a government openly announced that no more private construction would be allowed outside of HOAs, would you still shrug your shoulders at the fate of the free-speech rights of the citizens who had to live in those HOAs? At some point rentiers have to be regarded as indistinguishable from the state.

    1. You nailed it.

    2. That’s like when municipalities determined who could lay cable for cable TV. As long as not everyone had access to the right of way, did not those who were granted it have to exist as common carriers?

      The same can be said, to a greater or lesser degree, of those who pursue occupations licensed by the state. If not everybody can be a pharmacist for the say-so, should all pharmacists have to dispense all drugs legally allowed to all those who ask? Or because the number of pharmacists in a state is large and not de jure capped, should they be allowed to exercise their conscience on the matter?

    3. “”If a government openly announced that no more private construction would be allowed outside of HOAs, would you still shrug your shoulders at the fate of the free-speech rights of the citizens who had to live in those HOAs?””

      Kinda like the 2nd amendment and SCOTUS. It’s ok to pass any law you want absent an all out ban, only until then did you cross the line.

      Or jobs that ban off the clock activities. If every job banned that activity, what then?

    4. The HOA covenants are attached to the land deed. Any housing not already bound by an HOA would still be free. This would make those properties more valuable and probably eventually result in the reversal of the HOA law you postulate.

    5. onthecommons.net/2007/04/30/on-the-commons-with-steve-siegel.aspx

      On the Commons with Steve Siegel
      Posted by Shu Bartholomew at 4/28/2007 4:36 PM
      On The Commons with us this week is Steven Siegel. Steve is a lawyer and a doctoral student at Columbia Law School. He wrote an article titled: “The Public Role in Establishing Private Residential Communities: Towards a New Formulation of Local Government Land Use Policies that Eliminates the Legal Requirements to Privatize New Communities in the United States” that was published in the Fall 2006 edition of The Urban Lawyer. Please join us On The Commons. We’ll talk about the ramifications of these trends and find out what he means by Public Service Exaction.

      Download | Duration: 00:48:15

      You can read the article here.

      This article examines the critical and insufficiently understood role that government plays in the widespread and ever-growing establishment of private residential communities (also referred to here as “community associations”) in the United States, particularly in the high-growth Sunbelt states. I argue here that local governments,on a broad scale and independent of market forces, effectively have required developers of new subdivisions to create community associations.

  6. I think his best course of action is to exercise his right of free expression by selling his place in the HOA and moving.

    1. > I think his best course of action is to exercise his right
      > of free expression by selling his place in the HOA and moving.

      Because changing houses is as trivial as changing brands of cereal?

      Or perhaps certain theories of freedom, liberty, and choice don’t scale up very well.

  7. I certainly do agree that if you agree to a home owners’ association contract you are bound to abide by it. But what I don’t understand is why anyone would ever join one. Government is bad enough. Why would you volunteer to have a bunch of busybodies sticking their noses into your business? And pay them an annual fee to do so?

    1. Most of the reasons people have for joining HOAs don’t appeal to me personally, but one does: They can be a way to privately provide community amenities, such as a park or a pool.

      1. Robert Nelson’s article “Collective Private Ownership of American Housing: A Social Revolution in Local Governance” (July 2000) quotes “a Southern California professional woman” who said

        “I thought I’d never live in a planned unit development but then I realized I wanted a single-family detached home with some control over my neighbors.”

        This is supposed to be the libertarian argument for HOAs??!!

        As the libertarian “Houston Lawyer” posted at Volokh.com

        “Why the ragging on HOAs? I have found that they are far more responsive than city government. My one phone call to the HOA stopped a neighbor from parking a Ford Excursion in his front yard.”

    2. Haven’t you ever lived in a high-density suburb? I used to think HOAs were the spawn of Satan until my neighbor decided to give his house to his dipshit kid. The dipshit kid has no fucking clue regarding the upkeep of a house.

      If I ever eat another stupid pill and buy a suburban house, you can bet your HOA dues that it’ll be controlled by the house-paint nazis. And you can bet that I’ll be joining the board if they’re not sufficiently totalitarian.

      1. Then I will buy a unit in that development just to rabble rouse and be thorn in the side of all the nazi board members. Most of all, I will personally inform all of your colleagues on the board that you are really an anarcho-free enterprise-individualist.

      2. No. I would rather die than live in a high density suburb.

    3. Can’t say for everyone, but for me:

      I live in the county in semi-rural Iowa. The home owner’s association owns and maintains the community well system (cheaper that everyone having their own well). It also has some very high level rules that prevent my neighbors from feeding chickens in the front yard and so forth. It provides a sound basis for making sure I can predict the future value of my home.

      The “regulatory” burden of my HOA is far, far less than in any of the cities in the region. However, in the suburban areas around major cities, the HOA can quickly explode in to a mini totalitarian state.

      Still, the dipshit in question needed to read the fucking contract and understand what it said before he signed it.

      1. “”Still, the dipshit in question needed to read the fucking contract and understand what it said before he signed it.””

        Being that the state passed a law to specifically usurp HOA’s guideline on flags, that isn’t relevant as much as it would be without the state law.

        If you can fly your flag, why can’t I fly mine, is a valid position to hold.

        1. The law is clear, and it is limited to certain flags and to political signs at certain times around an election. The Gadsen flag does not meet the law. So the dipshit in question can petition his legislature to update the law to add the Gadsen flag if he desires.

          1. Yes. B/c that is what this site is dedicated to – “the law is the law”. Maybe the stoners can petition the legislature to pass the right law. See how well that works.

            1. The first ammendment says that government cannot abridge the right to free speech. However, the first ammendment does not prohibit private organizations from prohibiting free speech.

              So firstly, the law itself is shit for stomping on the freedom to make a private contract.

              Secondly, the dipshit involved signed a fucking contract and the law (crap though it is) doesn’t override his contract. So he is doubly wrong.

              It is just that simple; there are no other issues involved.

              1. So if I execute a slavery contract tonight – the courts will uphold the contract. It’s simple, right, counselor.

                1. Thanks for clarifying that you are a total dickhead. HOA contract == slavery. Lovely argument. Would you care to throw in the Nazis as well.

                  1. Um no, dickhead. US constitution Amendment 13 – no slavery. Also such agreements are void against public policy.

                    So perhaps your feeble mind didn’t get it – If I and another person agree to do something – that’s an agreement. When the state says it’s enforceable – it’s a contract – a legally enforceable agreement.

                    My point – if the state (through the courts) rules on and enforces agreements, and the same state creates these groups (by statute authorizing their power), and now the state may limit the contract (as unconscionalble – restricting 1st Amendment grounds – as opposed to my example regarding the 13th amendment), the case isn’t as open and shut as you assert, is it? Dickhead.

                    1. How do you survive from day to day?

                    2. Cool comeback. I do more than survive.

          2. Geotpf’s 4:21 post down thread, is along the same lines I was thinking.

    4. My condo was in an HOA, obviously. With condos, its kinda necessary with shared walls and etc.

      When I was house hunting in 2007, I didnt specifically search out a non-HOA house, but the fact that mine isnt in one, was a very nice bonus.

      1. I did specifically seek a HOA-free home, and am glad every second of every day that I did.

    5. My dad bought a house in an HOA-controlled subdivision. This is in a fairly rural area, so the subdivision had several unimproved lots for sale.

      He met some of the residents before buying. After he got a feel for what he wanted to do and what might get OK’d or denied, he then bought 5 lots so he had more votes than anyone else. (All he really wanted to do was put up a 6-car garage because he had 3 classic cars he restored and was thinking of doing a 4th. And then he never bothered anyway because he found something else to do.)

      My old man was the best thing that happened to that subdivision. He volunteered to do things like contact snow removal companies, made sure the burned out street lights were replaced within a week, got the potholes fixed. He had no intention of trying to put more amenities in and neither did anyone else. The old man died a few years ago and nobody stepped up to take his place as afar as the work was concerned; now most of the street lights are burned out and there are far too many potholes; I never go near there during a big snowstorm so I don’t know about the plowing situation (mom still lives there but she complains about everything so she’s not a good gauge).

  8. In the modern hyper-regulatory environment, it is not uncommon for real estate development to be impossible unless property owners placate tyrannical and expropriatory community boards by promising to shackle homeowners in their developments into these HOAs.

    I find this difficult to believe, but I live out in the wilderness.

    1. It is nearly impossible to buy single family dwellings on less than an acre and NOT end up in a HOA.

      1. It is nearly impossible to buy a fairly new single family dwellings on less than an acre in or near a city or large town and NOT end up in a HOA.

        FTFY.

        The SO and I bought a place in Alabama near a major University. No HOA.

        Later we rented a house ever nearer a bigger University in Kansas. That property was also not covered by a HOA.

        Both of those were about 50 years old.

        My Folks bought a place in Everett, WA with no HOA. That building was fairly new, but there had been a house on the site for nearly 40 years.

        And we know several folks who have recently acquired small lots with no HOA in fairly rural areas.

    2. Its true. A friend of mine is president of his HOA (he figured that was better than being abused by it). When the neighborhood was built, lots of stuff, like snow plowing, was pushed on them. Basically, to get approval to build, they had to not burden the city with extra expenses. So, they had to form an HOA to get it built.

  9. Out of curiosity I read the Wikipedia article on HOAs, and the state is there at every stage of their evolution – from ways to get more taxes while providing less services to keeping the Jews out.

  10. Guy needs to move out of there. He signed on for the HOA when he moved in, therefore he accepts their rules. Of course, hre could petition the HOA to change the rules….the rules he agreed to before buying the house.

    Sorry, but he entered into a contractual relationship when her bought the house. If he doesn’t like it now then he has the option of trying to change the terms or of terminating the contract by selling his house.

    An easy solution would be for him to purchase an old truck and park it in his driveway with a flagpole in the bed with the flag flying from it. Most HOA’s do not have rules regarding what kind of vehicle you can have, only that the registration stays current.

    1. Of course, since property values in Laveen have gone down about 70% in the last five years, and most of Laveen didn’t exist even ten years ago, he is probably pretty much screwed as far as being able to sell the place.

      He should just take down the flag and save his money. The association will almost certainly win the fight.

      1. > since property values in Laveen have gone down about 70% in the last five years

        How is this possible?!

        I thought HOAs preserved property values.

    2. > An easy solution would be for him to purchase an old truck
      > and park it in his driveway with a flagpole in
      > the bed with the flag flying from it.
      > Most HOA’s do not have rules regarding what kind of vehicle you can have,
      > only that the registration stays current.

      There are many stories about HOAs fining people for parking in their driveway instead of their garage.

  11. Any first year law student knows that freedom of contract is not absolute. No contract may made for something illegal or against public policy in general. If the Arizona legislature believes people have the right to fly a flag on their property, that’s the HOA’s problem.

    1. You’re right. We need to piss on contracts.

      1. ok. So if the HOA allowed for slavery or child porn – that is allowed b/c the bylaws say so.

        1. Just a thought. Some contracts are unconscionable. Courts often determine some provisions (and even the whole contract) as void. These boards are a state creation. They use the state courts to enforce their dues and bylaws. If the same state now says their going too far (violating fundamental rights) then too bad.

          1. You keep using this word “unconscionable.” I do not think it means what you think it means.

        2. Nice strawman you’ve built yourself there.

          A contract that is illegal or otherwise against state public policy will be unenforceable.

          What is illegal or against public policy about a contract under which two parties agree not to engage in specified activities upon a piece of private property?

          It happens all the time, and the concept has been around for centuries – it’s known as a restrictive covenant. I agree to not add on to my house unless the association approves. I agree not to install a swimming pool without HOA approval. I agree not to install a flagpole or fly a flag without approval.

          There is nothing illegal or against public policy there – i.e., nothing that makes the contract unenforceable.

          1. There is nothing illegal or against public policy there – i.e., nothing that makes the contract unenforceable.

            Except that the contract does say I no longer can exercise political speech.

            Pools and additions are not speech. Flags are. So if I sign an agreement that says I am giving up a fundamental freedom (Speech, Voting, prayer meetings) those contracts are void.

            What if the HOA says no guns, no meetings (b/c of traffic), no voting in federal elections… I am using these examples b/c they, along with speech, are fundamental rights. Contracts which restrict such fundamental rights are never open and shut cases.

            1. “Pools and additions are not speech. Flags are. So if I sign an agreement that says I am giving up a fundamental freedom (Speech, Voting, prayer meetings) those contracts are void.”

              Flagpoles are not speech, and if this were an unenforceable contract, why did he not pursue that when he signed it?

              “What if the HOA says no guns, no meetings (b/c of traffic), no voting in federal elections… I am using these examples b/c they, along with speech, are fundamental rights. Contracts which restrict such fundamental rights are never open and shut cases.”

              Nice strawman. You are comparing apples and orangutans. Are they prohibiting him from putting up a political sign? From having a church prayer meeting? From keeping a gun for protection?

              Seriously, perhaps this is not a cut and dried case, but it should be. This man entered into a contractual agreement, and if they invade upon his freedoms, then he should have addressed that in the courts before he signed it.

              1. Nice strawman. You are comparing apples and orangutans. Are they prohibiting him from putting up a political sign? From having a church prayer meeting? From keeping a gun for protection?

                Yeah they said they were going to ban smoking on flights. That is how it is with these types – Clever lawyering – how can we ban something that we previously thought couldn’t be banned.

                Seriously, perhaps this is not a cut and dried case, but it should be. This man entered into a contractual agreement, and if they invade upon his freedoms, then he should have addressed that in the courts before he signed it.

                Wrong. No standing to sue.
                reply to this

                1. “Wrong. No standing to sue.
                  reply to this.”

                  Why not? If you say because he has to suffer actual damages, I would refer you to the perceived potential for discrimination in the Arizona immigration law. There were no actual damages suffered yet, but they had legal standing to sue (and won, BTW).

                  Look. The guy could have sued in state or federal court before he signed the contract. It would fall under the “chilling of free speech” designation, which does not require actual damages to sue under.

                  Perhaps if the AZ flag law was enacted after his HOA contract was signed, he would be able to bring this up….but only to amend the HOA contract to include the specific type of flags addressed in the subsequent law. Any other addendum would be at the discretion of his HOA and I would suggest he bring it up at their next meeting. Otherwise, he should just sit on his thumb and spin.

            2. So if I sign an agreement that says I am giving up a fundamental freedom (Speech, Voting, prayer meetings) those contracts are void.

              No, they are not.

              1. If you are a real attorney, attorney, am I correct that he can sue before he suffers actual damages? I’ve always understood that in contract law one does not have to suffer actual damages to sue for a correction of the law (even if they have to suffer actual damages to sue for compensation).

                Either way, the HOA is enforceable even if it contradicts existing law. If new laws are passed, the HOA needs to be addended to address the new law. I’m not sure if they require unanimous consent from their members or some type of a majority. I would assume that is addressed in it’s by-laws.

                1. Well, you could try to bring a declaratory judgment action, in which you ask the court to rule on what the parties’ obligations are under the contract. Different jurisdictions have different standards for what you have to show to bring a dec-j action. This flag thing would appear to be a good candidate.

                  You could also bring an action seeking only specific performance, rather than damages. There are different standards for that as well. Specific performance is usually a long shot.

                  1. “You could also bring an action seeking only specific performance, rather than damages. There are different standards for that as well. Specific performance is usually a long shot.”

                    That’s a shame because specific performance would pretty much limit bullshit suits brought to line lawyers pockets. A certain attorney in San Francisco lawyer named Frankovich and empanadas (muffins???) come to mind…..

              2. Are you serious? You and I agree that you will be my slave. Enforceable y/n

                Contract to sell children? y/n
                Contract to prohibit free speech? y/n

                Secondly, if he didn’t own the property on the development, he can’t sue. He is not a party – courts do not consider academic questions.

                1. People enter into contracts in which they prohibit free speech all the time. E.g., if two businesses settle a lawsuit, they will often agree not to discuss the settlement and not to disparage each other. Likewise, when someone is thinking of buying a company and wants to examine its books, he will first enter into a confidentiality agreement with the target company.

                2. “Are you serious? You and I agree that you will be my slave. Enforceable y/n

                  Contract to sell children? y/n
                  Contract to prohibit free speech? y/n”

                  I was thinking more along the lines of taking specific action to correct compliance as opposed to suing the piss out of someone to accomplish the same goal. Am example I would use would be suing a business to build a ramp as opposed to suing them for $1.000.000 because they didn’t.

                  Of course, you are looking at it through the prism of a lawyer and I am looking at it through the prism of a private citizen who thinks most lawyers are out primarily for financial gain.

                  1. Sorry, attorney. I thought you posted that last comment about selling children, etc. I just realized it was james j b.

                    I still stand behind my feelings about most attorneys, though.

                3. “Secondly, if he didn’t own the property on the development, he can’t sue. He is not a party – courts do not consider academic questions.”

                  Courts consider academic questions all the time. AZ Immigration is a perfect example of that.

                  Also, you imply no tenant could sue a landlord or contractor for damage to his private property within his rented property. By your logic, if a property owner hired someone to build a deck, the tenant could not sue for damages if the contractor damaged the swingset he put in (but is not permanently anchored), or could not sue the landlord for installing a deck that was not within the terms of the lease.

                  1. I implied nothing. If he owns no property in a development, he can’t sue the development on what might happen if he did, nor will any court give him an advance on what might happen if he bought a property and then wanted to errect a flag pole.

                    The az immigration is not academic – the constitutionally of an actual law is questioned. Show the court case where the courts rule on a proposed law that might be passed. You are wrong

              3. But if the state enforces that contract, isn’t the state the entity actually depriving you of that freedom?

      2. > You’re right. We need to piss on contracts.

        Why not?

        Pissing on a contract worked for Pam Geller, the editor of AtlasShrugs.com, who is hailed as a heroine by the Ayn Randians.

        I could not find a single conservative or libertarian pundit who was critical of her blatant hypocrisy.

    2. See below. The law is very specific about what flags can not be outlawed by HOAs. The Gadsden flag is not one of those flags.

  12. The actual law in question:

    Arizona Revised Statutes ?33-1808 Flag display; political signs

    A. Notwithstanding any provision in the community documents, an association shall not prohibit the outdoor display of any of the following:

    1. The American flag or an official or replica of a flag of the United States army, navy, air force, marine corps or coast guard by an association member on that member’s property if the American flag or military flag is displayed in a manner consistent with the federal flag code (P.L. 94-344; 90 Stat. 810; 4 United States Code sections 4 through 10).

    2. The POW/MIA flag.

    3. the Arizona state flag.

    4. An Arizona Indian nations flag.

    B. The association shall adopt reasonable rules and regulations regarding the placement and manner of display of the American flag, the military flag, the POW/MIA flag, the Arizona state flag or an Arizona Indian nations flag. The association rules may regulate the location and size of flagpoles but shall not prohibit the installation of a flagpole.

    C. Notwithstanding any provision in the community documents, an association shall not prohibit the indoor or outdoor display of a political sign by an association member on that member’s property, except that an association may prohibit the display of political signs earlier than forty-five days before the day of an election and later than seven days after an election day. An association may regulate the size and number of political signs that may be placed on a member’s property if the association’s regulation is no more restrictive than any applicable city, town or county ordinance that regulates the size and number of political signs on residential property. If the city, town or county in which the property is located does not regulate the size and number of political signs on residential property, the association shall permit at least one political sign with the maximum dimensions of twenty-four inches by twenty-four inches on a member’s property. For the purposes of this paragraph, “political sign” means a sign that attempts to influence the outcome of an election, including supporting or opposing the recall of a public officer or supporting or opposing the circulation of a petition for a ballot measure, question or proposition or the recall of a public officer.

    If the ACLU is arguing that a Gadsden flag is a de facto political sign, a statement that one broadly agrees with Tea Party candidates, then I’m OK with their actions. It probably won’t hold up in court, but it is a legitimate issue to challenge the law’s application.

    If the ACLU is arguing that, damn the actual language of the law, they want to force homeowner’s associations to let people fly whatever the fuck kind of flag they want in defiance of the association rules agreed upon by the homeowners when they bought the house, not so much in agreement. Is the ACLU going to stand up for those who want to fly Nazi flags, commie flags, NAMBLA flags, and so on?

    1. I can see a free speech issue here. There might be a first amendment argument against allowing some flags but not others. That is, you could pass a law requiring HOAs to allow some flags, but there might be legitimate first amendment/free speech claims if the law only applies to certain types of flags (as it does here), especially a banned flag is non-commercial or political in nature.

      I suspect if the two sides want to push it, the Supreme Court will have to make a final decision here.

      1. Edit:

        I can see a free speech issue here. There might be a first amendment argument against allowing some flags but not others. That is, you could pass a law requiring HOAs to allow all flags, but there might be legitimate first amendment/free speech claims if the law only applies to certain types of flags (as it does here), especially a banned flag is non-commercial or political in nature.

        I suspect if the two sides want to push it, the Supreme Court will have to make a final decision here.

      2. Huh. That law is definitely viewpoint discrimination. I’d wedge that statute into my suit.

    2. Since the Gadsden Flag was the first recognized flag as the standard of the commander in chief of the US Navy, it would probably fall under the military flags designation. Certainly, the Navy Jack red and white striped “Don’t Tread On Me” flag meets the qualification. Perhaps a compromise is in order?

      1. Correction: After reading the law, he would have to be a member of the US Navy to fly the Navy Jack.

        I wonder if someone could fly a service branch flag if their spouse was serving overseas. Technically, they are not members of the service.

        Also, could a renter of the property fly a flag if they did not agree with the HOA, yet their landlord did? Also, what if the renter was in the Marines but the owner was not? Would they have to let him or her fly a marine corp flag? The law reads “on his property,” but that would give no rights to renters.

        I know this sounds like devil’s advocate, but these issues should have been addressed more clearly when the law was written. Guess AZ can pass pretty vague laws in areas other than immigration enforcement.

        1. 1. The American flag or an official or replica of a flag of the United States army, navy, air force, marine corps or coast guard by an association member on that member’s property if the American flag or military flag is displayed in a manner consistent with the federal flag code (P.L. 94-344; 90 Stat. 810; 4 United States Code sections 4 through 10).

          Actually sloopy, I think they’re talking about the Homeowners association member, not the US Marine Corp or US Naval association member.

          As long as the flag is displayed properly (according to federal standards), then by the definition of the law, he should be able to fly the Gadsden Flag because it is officially one of the US Marine Corps and US Navy’s historical flags.

    3. Around here, UVA and Virginia Tech banners are very popular – you see them on mailboxes and front porches all the damn time. Under a Virginia version of this law, the HOA could prohibit that, but not the VA State flag.

  13. Yeah that is pretty crazy when you think about it.

    be-anonymous.at.tc

  14. BTW, federal law prevents an HOA from banning satellite dishes from your property.

    My ex-condo assoc banned them, but if I had wanted one and could attach it to my deck, federal law would have supported me. However, I couldnt attach it to common property (roof, etc). One person in my complex had one and they didnt do anything about it.

  15. In the HOA’s defense, the Gadsden flag is pretty damn ugly. It probably made a nice battle flag, but that’s about it.

    1. I like it and fly it from my house from time to time. Technically in violation of my stupid HOA rules, too. My HOA is so fucked up, and the rules are so poorly written though, they would have a very hard time taking any enforcement action against me for it.

      1. I prefer the so-called Bennington flag, myself.

  16. He just needs to switch from the Gadsden to the similar Navy Jack. It’s flown on all US Navy ships.

    http://en.wikipedia.org/wiki/Gadsden_flag

  17. This is a tough one since I disagree that the state of Arizona should be able to override the HOA rules that were voluntarily agreed upon by residents. However, if Arizona is going to muddle in this issue, it should protect all flags equally…sort of like marriage.

    1. The state pretty much mandates that all new development have an HOA. It is impossible to buy a house that is not ancient in Arizona that has no HOA. Since most of the old housing stock is in central Phoenix, and is quite a bit more expensive, a lot of people with fairly modest means (and most Laveen residents would qualify for that designation) will be hard pressed to find a house they can afford that does not have an HOA.

      That said, the statute seems pretty clear that the gadsden flag does not qualify, and the statute expresses which flags public policy believes that private contract cannot ban. The Gadsden flag not being one of those flags, I don’t see much argument here.

      1. The argument is that the State of Arizona is discriminating against the gadsden flag. The principled position is to get rid of the law altogether since it’s a violation of property rights. However, if they’re going to keep the law around, they should not be able to pick and choose what flags are more equal than others.

  18. This already has played out in my part of Virginia twice in the past several years. First was a wealthy lawyer in one of the more expensive “desirable” neighborhoods west of Richmond. He had a big fancy house and acquired the lot next to his and erected a massive flagpole, complete with floodlights for night display, and flew the American flag. He had asked for permission from the HOA, who turned him down, then went ahead and built it anyhow. The rules prohibited any “structure” without approval. He argued it was not a “structure,” but a flagpole, and if they had meant to include “flagpole” in the word “structure,” they should have said so. Litigation ensued; he lost. He appealed and lost. As I recall, he petitioned SCOTUS, which denied cert, and IIRC, he spent well over $100,000. Pretty silly.

    And of course, those supporting him made it all about the right to fly the American flag, when in fact, it was not about that at all – it was instead about whether he violated the HOA rules that he had agreed to by erecting a structure after having been denied permission.

    As a result of that guy, the Virginia General Assembly passed a law saying that if an HOA wanted to ban flagpoles, the HOA rules had to explicitly use the word “flagpole”. You can betch your sweet bippy that every HOA quickly amended their rules to add “flagpole.”

    Just about 2 years ago, a very similar thing occurred in a neighborhood right down the road from mine – a old WWII medal of honor winner stuck a flag on his house, and a predictable shitstorm ensued. Same bullshit – “They’re trying to prevent me from flying an American flag!!!” Bullshit – they’re trying to get you to follow the rules you promised you would follow when you moved in. And their rules explicitly prohibited flagpoles.

    Of course, the HOA in that case acted like jackasses, because they could easily have made an exception for a 92 year-old medal of honor winner. But they dug in their heels and refused, saying that if they let him do it, they would have to let everyone, to which I say BS – just say you’ll let anyone do it who is a WWI vet and medal of honor winner. That should pretty much limit it.

    I find it hard to get worked up over these suits anyhow. You voluntarily move into a neighborhood with an HOA and regs; you agree to abide by them. Don’t like it? Live somewhere else.

    1. Okay, just don’t confiscate my wealth in enforcing your stinkin’ rules.

    2. Yeah! And if there is nowhere else because every place is under an HOA, then live under an overpass with all the sex offenders.

  19. You voluntarily move into a neighborhood with an HOA and regs; you agree to abide by them. Don’t like it? Live somewhere else.

    I’d be perfectly willing to abide by my HOA rules if they weren’t a) arbitrary and b) selectively enforced.

    Two examples. We got a letter informing us that we could not have anything over three feet tall (besides plants) in our front yard. This was news to us, since the guy 6 houses down from the clubhouse has a garden fountain in his front walkway that’s taller than I am.

    Another one they don’t enforce unless they don’t like your plant choices: no more than 7 species of plant in the front. Since you have grass, and 2 different kinds of trees (by deed restriction) you’re down to 4. Do they enforce that? Not unless our tight-assed bitch of a property manager doesn’t like your landscaping.

    So, yeah, fuck HOAs. I’m not doing this again.

    1. They made you remove the refrigerator?

      LOL. Sorry, not meant to offend.

      1. How else am I supposed to drink beer in the front yard? You don’t expect to go into the house for another one, do you? Savage.

        More seriously, they objected to our gargoyle. Fuck ’em. If they’re gonna let people have ceramic pigs in the front yard, I’m keeping my gargoyle.

        1. You need 3 gargoyles. Try adding 2 more gargoyles then putting the fridge back and see if they ward off the evil HOA.

    2. This is exactly the problem. Many comments cite “the agreement” that is supposedly signed by anyone purchasing a house controlled by a HOA as though it’s some sacred, unchanging entity.

      However, every time the HOA board changes, (and some people live in a house longer than 5 or 6 years) there are often corresponding changes to the rules, which are often coincidentally aligned with whatever social factions the new boardmembers bring to the “agreement”.

      Approval votes? HA!

      Guess again.

      HOA’s defend challenges in court with (wait for it) the same dues money that is supposed to be spent on upkeep and maintenance.

      Oh, and I even know of one specific case where the ‘lawyers’ tasked with representing these HOA’s against challenges happen to be HOA members themselves aligned with the board.

      How’s that feel, huh? Paying dues to people scamming you out of your property and finances?

      I guess the only alternative is to then spend your entire productive life, away from your business and family, fighting off every idiot scam artist in your neighborhood looking to line their pockets. Or you can just uproot your family and take a loss on your house in a down market – all because some group of authoritarian pricks decided to ‘take over’ your neighborhood.

      And don’t think about retiring or falling ill, asshole, because that’s really when they get you.

      HOA’s are bullshit, and should be severely limited in scope, and absolutely restricted from any ability to fine or impose liens.

      It’s quite surprising that many in agreement with the HOA’s cannot see the fundamental similarity to an unaccountable government – something not entirely popular on this site. Exactly what part of power corrupting absolutely do people not understand?

  20. The only legitimate purpose of a HOA is to deal with common property… open space, stormwater controls, common recreational facilities, etc. Everything else is essentially zoning, which is a government function, and ought to be considered in that light.

    1. When was the last time you were in California? HOAs passed that threshold way back in the 70’s.

      1. When was the last time you were in Maryland? The cops there declared photography illegal long ago.

    2. http://www.justnews.com/news/22141699/detail.html

      Resident: HOA Threatens To Break Into Home
      Homeowners’ Association Wants Couple To Remove Sign

      POSTED: Tuesday, January 5, 2010

      Bill Elliot and Mary Ann Frye have hung this sign in the window of their home.

      HOMESTEAD, Fla. — A South Florida couple said their homeowners’ association has threatened to break into their home to remove a sign posted in a window.Bill Elliot and his girlfriend, Mary Ann Frye, bought a single-family home in Aruba at the Oasis in Homestead in 2007. The couple said the house is infested with Chinese drywall, and they want Lennar to buy them out so they can move on.

      The couple has posted two signs on their property — one on the front lawn, another in a window.

      The signs read, “For Sale: Shoddy construction, Lennar toxic Chinese drywall.”

      “We have had appliances just stop working, computers, television sets. Even my electric toothbrush has stopped functioning. Both of us have had a lot of sore throats and a lot of headaches. That’s pretty much a regular occurrence,” said Elliot.

      At first Elliot’s neighborhood association sent a friendly reminder saying he could have no signs, displays, advertisements or lettering without approval. Then, he received a lawyer’s letter warning if the signs don’t come down, the association will come and remove them.

      A letter from Association Law Group said, “Should no one be home at the time the Association comes, the services of a locksmith will be utilized and you will be responsible for the cost.”

      “How would you feel if someone said they were going to come with a locksmith and open your door?” said Elliot. “They’re threatening to break into our home.”

      “We have a right to tell people how we feel. This is what America is all about,” said Frye.

      But Local 10 has discovered something Elliot and Frye didn’t know. According to the by-laws that govern the neighborhood, which Elliot signed when he bought the house, the association does have the right to enter his property and remove any violations after a written notice.

  21. So, from a libertarian perspective, what exactly is the definitive difference between an HOA and a government? The fact that you willingly placed yourself under its rule? If everyone had to explicitly sign a bona fide social contract to live in a certain country, does that mean its government no longer counts as a “state” for libertarian purposes?

    1. That is essentially my point from above. I favor liberty. It matters not whether the busybodies use the state or the state ( via contract enforcement). Individual Freedom still takes a hit.

    2. According to some people around here, you already have signed social contracts just by being alive, and that makes just about any violation of your individual rights ok. See Choad re: social security.

      My libertarian perspective is that homeowners associations are bullshit. The shittiest thing about covenants is that they are basically permanently attached to the ownership of the land, which I believe should be unenforceable. Condos are a scam.

  22. Fucking weird, I had to drive down to Laveen today, a town that I never even heard of or had no idea where it was until yesterday. On top of that I have a Gadsden flag tattoo. So great Reason oracles, which random town am I going to be in tomorrow?

    1. Bumfuck Egypt

  23. You know what you never read about in cases like this? Attempts at or suggestions of compromises. Wouldn’t it be amazing if we could broker one from here? Think of how we’d be salvaging liberty on all sides because nobody would have to lose!

  24. Before we all go around supporting this guy and making him out to be a hero, let me tell you a little about the “TRUE” Andy McDonel. He is spending all this time and effort fighting over a flag on his house, he read and signed the bylaws from the CC&R’s when he bought this house. I wish he would spend this type of effort on his daughter. The one that he has only seen 2 times since last December. Also the same one that he has not paid any child support for in almost a year. The New York Times says Andy is a a logistics operation manager, which is not true he is currently unemployed. Which brings the point if the ACLU is helping him out, why is it he is asking for donations on his personal blog site. To me that just doesn’t add up me. He needs to step up and take responsibility as a man and a father and take care of his daughter. I think his time would be better spent trying to take care of his daughter and so the burden wasn’t completely her mother that is raising her. I just think his priorities are just all in the wrong place. All these head lines need to read “DEAD BEAT DAD FLYS FLAG”

    1. Love those anonymous commenters, so courageous.

  25. OK, I realize this thread has already gone stale, and Evan McKenzie has a book coming out that will probably say what I’m about to so much better than I can, but I figure that this is as good a place as any to write the first draft of some thoughts that have been going through my mind regarding this issue.

    > The problem: McDonel is not fighting an intrusive local
    > ordinance or boneheaded state law; he is fighting the rules
    > of his own homeowners’ association, rules that he accepted
    > when he bought his house. As the lawyer for the Avalon Village
    > Community Association notes, “anyone considering residing in a
    > community association should carefully review the association’s
    > governing documents beforehand to ensure that the community is a good
    > fit for them.”

    It’s nice to see that there is one set of parasitic tort lawyers that Reason can support, but there is so much wrong with the assertion that homeowners voluntarily signed a contract with their HOAs that it discredits libertarian ideals.

    In “Terms of Use” (Minnesota Law Review, 2006), Mark Lemely wrote

    Ten years ago, courts required affirmative evidence of agreement to form a contract. No court had enforced a shrinkwrap license, much less treated a unilateral statement of preferences as a binding agreement. Today, by contrast, it seems widely (though not universally) accepted that if you write a document and call it a contract, courts will enforce it as a contract even if no one agrees to it.

    As is often the case — based solely on a non-scientific sampling of anecdotal evidence — homeowners don’t actually sign a contract with the HOA. The developer merely files the CC&Rs; — an HOA union’s governing documents — with the county. Since they have been “publicly posted,” even if the developer or the seller

    hadn’t exactly gone out of your way to call attention to them had you? I mean like actually telling anyone or anything?On display? I eventually had to go down to the cellar to find them?With a torch…It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying “Beware of The Leopard”.

    the courts will enforce the CC&Rs; as a binding contract.

    HOA adhesion contracts violate several requirements of Rational Choice Theory, including fully informed consent and fully mobile “consumer voters.”

    Megan McArdle, who is probably more sophisticated than most consumers, recently wrote about her experience of getting a mortgage (“No Such Thing as a Simple Mortgage” August 3, 2010. emphasis added):

    Actually going through the mortgage process is a reminder of one of the reasons that things went so badly wrong during the housing bubble; we are inundated with paper. There are disclosures about the Mortgage Disclosure Improvement Act telling us we have seven days to review any change in our APR; disclosures about the Home Valuation Code of Conduct, even a disclosure solemnly informing us that the bank intends to check credit scores and may not loan us money if there’s a bad payment history of too much debt.

    I’m pretty good with paperwork, and I understand all the terms being used (not to mention the laws being referenced), and I find it impossible to keep track of it all mentally–especially when you add in the tax returns, the W-2s, the bank statments and sworn certifications that all the money being used was legitimately earned or received as gifts. In fairness, we’re going through our credit union, which is apparently especially bureaucratic, but still–it’s very easy to develop a sort of attentional blindness and keep signing things. I requires heroic effort to read every document.

    This illustrates, I think, the limits of transparency.

    Is it realistic to expect consumers to “carefully review the association’s governing documents beforehand to ensure that the community is a good fit for them>”? And what would be the point? The terms of the adhesion contract can often be unilaterally amended by one party (the HOA corporation) without the consent of the home owners. Contrary to the beautiful theories of privatized corporate government, HOAs are not town-hall style mini-democracies.

    And how many homeowners (or even Reason readers) have no idea that the HOA corporation can — and do — foreclose on their home for trivial amounts and reasons. That doesn’t sound like “informed consent” to me.

    Without any type of “Bill of Rights” protection for homeowners, that can only come from legislation and/or government regulation, 2 -3 board members, in cooperation with the professional property management companies and HOA law firms, can (and do) devolve into banana republics that represent one of the biggest threats to individual private property rights in America today.

    And it’s not as though conservatives, and a large fraction of libertarians, aren’t opposed to government intervention of private contracts. Consider the support for

    * “right to work” laws, which prohibit mandatory membership in a labor union as a condition of employment

    * “paycheck protection laws,” which prohibit labor unions from using union dues for political purposes.

    Yet conservatives and libertarians have no objection to mandatory membership in an HOA union as a condition of home ownership, or the HOA union dues being used for political purposes by members of the Communisty Associations Institute.

    If HOAs are a manifestation of the free market (and I don’t believe they are, see my comment at 9.2.10 @ 8:32AM above), then the free market is about using fine print and legal loopholes to extract as much as possible from consumers, while taking away their rights. It’s what Evan McKenzie calls (August 25, 2008):

    “repressive libertarianism,” where certain people who call themselves libertarians invariably side with property owners who want to limit other people’s liberties through the use of contract law. Property rights (usually held by somebody with a whole lot of economic clout) trump every other liberty. The libertarian defense of HOAs is the perfect example. The developer writes covenants and leaves. Everybody who lives there has to obey them forever, even if they lose due process of law and expressive liberties.

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