The First Amendment protects a person’s right to free speech over any conflicting Covenants, Conditions & Restrictions of an HOA when the U.S. flag is involved. The federal Freedom to Display the American Flag Act states that associations cannot prevent flag displays on the residential areas to which an owner has a “separate ownership interest or a right to exclusive possession or use.” This means owners generally can display the flag in their unit and on their limited common elements, like decks.
However, reasonable “time, place and manner” restrictions can be enforced to protect the association’s substantial interests. Substantial interests may include preventing damage to house exteriors or preserving other owners’ views. Therefore, the flag size, flagpole characteristics, and display lighting can be somewhat regulated, even within an owner’s unit. And HOA’s still have complete control over any flag displays in the common areas.
Note that the Act does not cover the flags of U.S. states or other nations. Decorative flags and flags expressing personal opinions or affiliations are also not included. And renters, roughly 33% of U.S. households, don’t have the same protection as owners under this federal law. However, Minnesota law does cover renters and protects both the American flag and Minnesota’s state flag.
When free speech rights are affected, creating and enforcing policies can be challenging. HOA’s should consult an attorney when these types of issues arise.