The Freedom to Display the American Flag Act of 2005, Pub.L. No. 109-243, 120 Stat. 572 (2006) found in Title 4 of the United States Code, is an Act of Congress that provides guidelines as to how civilians. civilian groups, or organizations should respectfully display the flag. The Act does not include enforcement provisions, nor does it assign enforcement authority to a federal or state agency. The Act does not provide a private right of action.

The Flag Code is unique among our list of federal laws impacting community associations, in that it is expressly addressed to condominium associations, cooperative associations, or residential real estate management associations (commonly known as HOAs or common interest communities). The Act prohibits common interest communities from adopting or enforcing policies, or entering into agreements, “that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association..." 4 U.S.C. § 5

The Act further states:

Nothing in this Act shall be considered to permit any display or use that is inconsistent with—

(1) ... any rule or custom pertaining to the proper display or use of the flag; 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 own property and 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 U.S. 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.

However, numerous states have adopted similar laws protecting patriotic displays, including the U.S. flag. See, for example: Florida, Fla. Stat. §720.304, Arizona, A.R.S. §33-1808A, and Colorado, C.R.S.38-33.3-106.5(1) (a) & (b). Thus, community members should review the association’s governing documents and relevant state laws to determine if there is a regulation on displaying flags.