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HOAs often restrict freedom of expression which would not be legal if done by a city government. The first amendment, however, only protects against government

HOAs often restrict freedom of expression which would not be legal if done by a city government. The first amendment, however, only protects against government censorship, not private organization censorship so an HOA can force you to paint over the mural on your garage whereas a city government could not*. Some of this depends on state of course. California, for instance, recognizes HOAs as quasigovernments which imposes some restrictions on an HOAs power to censor speech, but many other states do not. * Case law on this is actually quite minimal. Local governments do try to ban free speech of course and almost certainly overstep their bounds, but no one has gotten a case to the Supreme Court.

MichaelZuo 2y ago
For free association to be meaningful the association has to be able to restrict freedom of expression, or kick out those who refuse the restrictions. Otherwise someone could just shout down any meeting the association decides to have. So the pertinent question would be, are HOAs legitimate associations in that sense?
- otterley 2y ago
  HOAs are a creature of state law and only have power to the extent state law confers it. They are not voluntary associations of the sort contemplated by the First Amendment. You can't choose to join an HOA unless you own land that belongs to it, and you can't choose not to be a member when you acquire a property.
  - MichaelZuo 2y ago
    Has a court ever ruled on that distinction? HOAs seem to have withstood legal scrutiny…
    - otterley 2y ago
      Not yet, but I look forward to the day a sensible court does.
otterley 2y ago
> an HOA can force you to paint over the mural on your garage whereas a city government could not*. Zoning ordinances (which are the closest analogy to HOA CC&Rs) restrict all sorts of expression but have been held lawful as long as they can be characterized as a time/place/manner restriction. See https://firstamendment.mtsu.edu/article/zoning-laws/ https://firstamendment.mtsu.edu/article/zoning-laws/ for a pretty good case law overview.
- kmeisthax 2y ago
  So, dumb question / political hobby horse riding in: if neighborhood restrictions on political speech are considered a time/place/manner restriction, why doesn't that logic also foreclose the majority opinion in McCutcheon v. FEC[0]? How are campaign contribution limits not a time/place/manner restriction? If money is speech, then me giving a million dollars to a Senator should be analogous to me with a megaphone shouting down anyone who disagrees with me until their eardrums bleed. [0] The Supreme Court case that invalidated campaign contribution limits and foisted SuperPACs upon us.
  - otterley 2y ago
    Giving money to a person, by itself, doesn’t raise the same sort of immediate quality of life concerns (“quiet enjoyment”) as having someone shout through a megaphone into your ear. Also, core political speech (and its financing, subject to concerns over corruption) such as electoral or issue advocacy is considered sacrosanct by the American legal system and so government prohibitions on it will receive significantly stricter scrutiny.

MichaelZuo 2y ago

For free association to be meaningful the association has to be able to restrict freedom of expression, or kick out those who refuse the restrictions. Otherwise someone could just shout down any meeting the association decides to have. So the pertinent question would be, are HOAs legitimate associations in that sense?

otterley 2y ago
HOAs are a creature of state law and only have power to the extent state law confers it. They are not voluntary associations of the sort contemplated by the First Amendment. You can't choose to join an HOA unless you own land that belongs to it, and you can't choose not to be a member when you acquire a property.
- MichaelZuo 2y ago
  Has a court ever ruled on that distinction? HOAs seem to have withstood legal scrutiny…
  - otterley 2y ago
    Not yet, but I look forward to the day a sensible court does.

otterley 2y ago

> an HOA can force you to paint over the mural on your garage whereas a city government could not*. Zoning ordinances (which are the closest analogy to HOA CC&Rs) restrict all sorts of expression but have been held lawful as long as they can be characterized as a time/place/manner restriction. See https://firstamendment.mtsu.edu/article/zoning-laws/ https://firstamendment.mtsu.edu/article/zoning-laws/ for a pretty good case law overview.

kmeisthax 2y ago
So, dumb question / political hobby horse riding in: if neighborhood restrictions on political speech are considered a time/place/manner restriction, why doesn't that logic also foreclose the majority opinion in McCutcheon v. FEC[0]? How are campaign contribution limits not a time/place/manner restriction? If money is speech, then me giving a million dollars to a Senator should be analogous to me with a megaphone shouting down anyone who disagrees with me until their eardrums bleed. [0] The Supreme Court case that invalidated campaign contribution limits and foisted SuperPACs upon us.
- otterley 2y ago
  Giving money to a person, by itself, doesn’t raise the same sort of immediate quality of life concerns (“quiet enjoyment”) as having someone shout through a megaphone into your ear. Also, core political speech (and its financing, subject to concerns over corruption) such as electoral or issue advocacy is considered sacrosanct by the American legal system and so government prohibitions on it will receive significantly stricter scrutiny.