Bill description: House Bill 503 would prohibit homeowner associations from banning the display of political signs and most flags.

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Does it transfer a function of the private sector to the government? Examples include government ownership or control of any providers of goods or services such as the Land Board’s purchase of a self-storage facility, mandatory emissions testing, or pre-kindergarten. Conversely, does it eliminate a function of government or return a function of government to the private sector?

Homeowner associations are private entities capable of making regulations of a fixed scope for residents who give their consent when they purchase their home in a given geographic area. When a bill like HB 503 restricts the activity of private entities, it transfers their regulatory function to the government by allowing the government to say how these private entities may function. If HB 503 is enacted, some of an HOA’s regulatory authority would be transferred to the Legislature.

Specifically, HOAs would not be able to prohibit political signs altogether, but they would be able to create rules about the number, size, and place of the signs. They would also be required to provide 3 days’ written notice to a homeowner before removing any sign from a residence or yard. The association would have to include in such a notice which association rule was violated to warrant such a removal.

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HOAs would retain similar powers over flags.  They could not explicitly prohibit homeowners from flying the American flag, the flag of the state of Idaho, a Prisoner of War flag, or a flag depicting a branch of the armed forces. But they could still make rules about the display of such flags (such as size, location, and the intensity of lighting surrounding the flag) and rules regarding the construction or maintenance of related flagpoles.

In both of these instances, the regulations that should be set by private entities are instead set by the government, though the bill would let the private entity preserve some of its ability to set and enforce rules.

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Does it violate the spirit or the letter of either the US Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the US Constitution or the Idaho Constitution?

Though homeowner associations are private groups, they exercise some powers normally reserved for units of government (e.g., they can impose fines and liens). HB 503 would prevent them from overreach on private property rights. The bill would give residents the ability to decide whether to place political signs on their own private property. Placing a sign on one’s property is consistent with the right to free speech listed in Article I, Section 9 of the Idaho Constitution, which states that “[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty.” 

A portion of this right possessed by all Idahoans is the freedom to use signs and symbols as part of personal expression. And most of all, to be able to use these signs and symbols on one’s own property. 

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This bill further protects freedom of speech and private property rights by ensuring that homeowners are able to fly patriotic symbols, like the American flag, on their property.

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