The following is the citation of a Florida HOA for Infringement of Resident’s First Amendment Rights
Dear Homeowners of La Cita Inc. and Sentry Management,
We are writing to formally address a serious concern regarding the recent communication we received from the Homeowners of La Cita Inc. (HOA) and Sentry Management, informing us that we are not permitted to display the flag of Sweden on our property. Notice “CM 60 BR9500 BV 1032” cites F.S. 720.304 as justification. Please note that Federal law supersedes Florida statute 720.304 when there is a conflict between the two. In the case of this notice, the First Amendment rights supersede F.S 720.304. The federal law prevails and must be followed over the state statute. This letter is to formally cite the HOA and Sentry Management for gross violations of federally-protected free speech rights.
- Unlawful Restrictions on Flag Displays
The HOA’s attempt to restrict the display of non-US flags on residential properties is a direct violation of the First Amendment of the United States Constitution. The First Amendment guarantees the right to free speech, including symbolic speech such as the display of flags. The Supreme Court has consistently held that restrictions on symbolic speech must meet strict scrutiny and serve a compelling government interest (see Texas v. Johnson, 491 U.S. 397 (1989); Reed v. Town of Gilbert, 576 U.S. 155 (2015)).
- Overstepping Bounds in Political Control
The HOA’s attempts to control the political expression of its residents, including the display of flags representing different nations or political affiliations, overstep the HOA’s legitimate governance functions. Such actions infringe on residents’ constitutionally protected rights to free speech and expression. The restriction of political speech, in particular, is subject to the highest level of protection under the First Amendment (see West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)).
Legal References:
- First Amendment of the United States Constitution: Protects the right to free speech, including symbolic speech.
- Texas v. Johnson, 491 U.S. 397 (1989): Affirmed that flag burning constitutes symbolic speech protected by the First Amendment.
- Reed v. Town of Gilbert, 576 U.S. 155 (2015): Established that content-based regulations of speech are subject to strict scrutiny.
- West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943): Highlighted the high level of protection afforded to political speech.
Actions Required:
- Cease and Desist: The HOA must immediately cease and desist from enforcing any rules or regulations that restrict the display of non-US flags or other forms of protected speech.
- Policy Revision: Review and amend the HOA’s governing documents to ensure compliance with federal and state free speech protections.
- Resident Notification: After the adoption of this change, inform all residents of their rights to display flags and other forms of symbolic speech as protected under federal and state law. This is in accordance to the manner set forth in paragraph 3. of the By-Laws for the delivery of notice.
Furthermore, Florida House Bill 1203, effective July 1, 2024, enforces significant changes to ensure transparency and accountability within homeowners’ associations. This bill explicitly safeguards members’ rights to express themselves through symbolic displays such as flying flags. Any HOA restrictions must be reasonable, non-discriminatory, and comply with federal and state laws, including the First Amendment. By invoking HB 1203, we assert that the HOA’s actions not only infringe upon our First Amendment rights but also potentially violate state law regarding transparency and member participation.
Failure to comply with these requirements may result in arbitration or legal action to protect the constitutional rights of the residents of La Cita, which can be initiated in state or federal court as necessary.
I trust that the HOA and Sentry Management will take the necessary steps to rectify this matter promptly and in accordance with the Florida Homeowners’ Association Act, which requires HOAs to respond to written inquiries from homeowners within 30 days. Thank you for your attention to this critical issue.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The First Amendment
