An Owner's Freedom To Display The U.S. Flag In An HOA Community
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Although a homeowners’ association (HOA) has the authority to rule a community under its governing documents, the association’s scope of authority is limited under federal and state laws.
For instance, an Association cannot adopt or enforce a rule that prohibits owners from displaying the United States flag on their residential property because the owners have the right to do so under the law.
The Right To Display The American Flag
The Freedom to Display The American Flag Act of 2005, Pub.L. No. 109-243, 120 Stat. 572 (2006), was signed into law in July 2006 to protect the right to display the American flag and prevent homeowners associations from adopting and enforcing any policy that would violate the owners’ freedom to do so. Explicitly, the Act declares that:
A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.
However, under the Act, homeowners associations have the right to set restrictions that would limit the time, place, or way of displaying the flag, only if said restrictions are (1) reasonable, (2) necessary to protect a substantial interest of the association, and (3) do not violate the United States Flag Code. The actual language of 4 USC. § 5 provides that:
"Nothing in this Act shall be considered to permit any display or use that is inconsistent with—
"(1) any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or
"(2) any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association."
The Act applies to displays on a member’s property. It gives associations some flexibility to restrict the time, place, and means of the flag’s display, as long as the restrictions are reasonable. Congress also made a point of saying that the law does not protect any display that would violate the US Flag Code. So, associations are free to prevent members from displaying the flag in a disrespectful or vulgar manner.
Importantly, while the Act regulates how community associations may enforce the display of the American flag by community members, the Act does not include any provision permitting a community member to sue or compel an association’s compliance with the Act’s rules and customs. The Act only functions as a guide to be voluntarily followed by civilians, civilian groups, or organizations.
Time And Occasions For Display of The American Flag
Title 4, Chapter 1, Section 6 of the Act, offers specific guidelines for the time and occasions for the display of the American flag. With a particular note, the Code declares that the “flag should be displayed on all days,” especially on the following 41 days of the year:
New Year’s Day
January 1
Inauguration Day
January 20
Martin Luther King Jr.’s birthday
Third Monday in January
Lincoln’s Birthday
February 12
Washington’s Birthday
Third Monday in February
Easter Sunday (variable)
Mother’s Day
Second Sunday in May
Armed Forces Day
Third Saturday in May
Memorial Day (half-staff until noon)
The last Monday in May
Flag Day
June 14
Father’s Day
Third Sunday in June
July 4
National Korean War Veterans Armistice Day
July 27; Labor Day
First Monday in September
Constitution Day
September 17
Columbus Day
Second Monday in October
Navy Day
October 27
Veterans Day
November 11
Thanksgiving Day
Fourth Thursday in November
Christmas Day
December 25
Other days as may be proclaimed by the President of the United States
The birthdays of States (date of admission)
State holidays
Independence Day
Tips For Displaying The American Flag
Property owners must check their association’s rules and local statutes for additional guidance on this topic. Moreover, it is also important that owners take certain precautions when handling and displaying the American flag. Title 4, Chapter 1, Section 7 of the Code, details the position and manner for displaying the flag.
Furthermore, Title 4, Chapter 1, Section 8, of the Act outlines the ground rules that establish respect for the flag and specifically notes that “[n]o disrespect should be shown to the flag of the United States of America; the flag should not be dipped to any person or thing. Regimental colors, State flags, and organization or institutional flags are to be dipped as a mark of honor.” In particular, Section 8 of the Act provides that:
§8. Respect for flag
No disrespect should be shown to the flag of the United States of America; the flag should not be dipped to any person or thing. Regimental colors, State flags, and organization or institutional flags are to be dipped as a mark of honor.
(a) The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.
(b) The flag should never touch anything beneath it, such as the ground, the floor, water, or merchandise.
(c) The flag should never be carried flat or horizontally, but always aloft and free.
(d) The flag should never be used as wearing apparel, bedding, or drapery. It should never be festooned, drawn back, nor up, in folds, but always allowed to fall free. Bunting of blue, white, and red, always arranged with the blue above, the white in the middle, and the red below, should be used for covering a speaker's desk, draping the front of the platform, and for decoration in general.
(e) The flag should never be fastened, displayed, used, or stored in such a manner as to permit it to be easily torn, soiled, or damaged in any way.
(f) The flag should never be used as a covering for a ceiling.
(g) The flag should never have placed upon it, nor on any part of it, nor attached to it any mark, insignia, letter, word, figure, design, picture, or drawing of any nature.
(h) The flag should never be used as a receptacle for receiving, holding, carrying, or delivering anything.
(i) The flag should never be used for advertising purposes in any manner whatsoever. It should not be embroidered on such articles as cushions or handkerchiefs and the like, printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard. Advertising signs should not be fastened to a staff or halyard from which the flag is flown.
(j) No part of the flag should ever be used as a costume or athletic uniform. However, a flag patch may be affixed to the uniform of military personnel, firemen, policemen, and members of patriotic organizations. The flag represents a living country and is itself considered a living thing. Therefore, the lapel flag pin being a replica, should be worn on the left lapel near the heart.
(k) The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.
All things considered, let us practice our right to display the United States flag with pride, and in memory of all military members who have fought, and continue to risk their lives to defend our right to freedom.
This article was designed to provide owners general guidance, information, and knowledge of their right to display the American flag. It is not a substitute for legal research and advice.