Regulation of Political Signs in Private Homeowner Associations: A New Approach

I. INTRODUCTION

Special respect for individual liberty in the home has long been part of our culture and our

The concept of the home as a zone of nearly unfettered individual liberty is one of the bedrock principles of American law and culture. Chief among the liberties safeguarded from governmental interference within this zone is freedom of speech, a liberty protected by the First Amendment.2 While the First Amendment prevents the government from infringing on an individual's speech in many settings, its protection is especially strong in the home. As Justice Stevens wrote in City of Ladue v. Gilleo, any attempt by the government to prohibit certain forms of speech in the home is so antithetical to our common understanding of individual liberty that it is likely to arouse impassioned opposition.

For millions of Americans,3 however, certain aspects of the protection that the First Amendment typically provides do not extend to their private residences because they live in a community governed by a homeowner association. In the name of property value and aesthetic coherence, many of these associations impose myriad restrictions on their member-homeowners. One common restriction prohibits the display of political signs on a homeowner's private property.4 While such a regulation from a local municipality would clearly contravene the First Amendment, homeowner associations have not been held to this standard because of their legal status as private entities.5 Thus, by virtue of living in an association-governed community, millions of Americans have signed away their ability to display political signs on their property, one of the most significant acts of political speech commonly practiced across the nation.

As communities governed by homeowner associations have proliferated in recent years,6 limitations on the display of political signs have alarmed scholars and homeowners alike and prompted a variety of responses from both groups.7 Some scholars argue that the status of homeowner associations as purely private entities is not so clear-cut.8 Given their expanding role in administering local communities9 and their prevalence in certain regions of the country,10 homeowner associations undeniably cast a shadow that extends beyond the private realm. Certain commentators characterize homeowner associations as "quasi-governmental organization[s]"11 and "private governments."12 Courts, however, have been hesitant to label them as state actors and impose the full breadth of constitutional restrictions that normally attach to such actors.

Given the complexity of the legal issues presented by homeowner associations and their relative novelty in the legal landscape, finding the appropriate legal framework under which to analyze their actions is a difficult task. Additionally, hot-button social and political issues, such as classism and racism, are frequently injected into the debate, complicating matters further.13 As a result of this confluence of legal, social, and political considerations, homeowner associations are not easily reducible to one particular legal paradigm. The wide variety of approaches found in both the academic literature and the case law reflects this ongoing struggle to successfully characterize the legal dimensions of the homeowner association and the consequent ramifications on both members and non-members.14 This Note will examine the existing analytical approaches to homeowner associations and suggest that, at least in the context of political sign bans, there is a strong argument for a new approach based on the policies underlying the traditional protection accorded free speech.

Some critics might dismiss the display of a political sign on one's front lawn as a trivial form of speech. The Supreme Court, however, has characterized political signs as "a venerable means of communication that is both unique and important."15 With the ideal of traditional "town hall" democracy relegated to the dustbin of myth and history, the political sign is as valid, and accessible, a form of political communication as any other currently available to the vast majority of voters. Beyond accessibility, political signs are important because they directly reflect the way that citizens feel about political candidates. This, in turn, ultimately impacts the outcome of elections and the trajectory of substantive government policy-there is hardly an endeavor more significant in a democratic society.

This Note proceeds in four parts. Following the introduction, Part II examines the growth of homeowner associations across the United States as well as their unique structure, function, and legal characteristics. Part III reviews the analytical frameworks that courts and commentators employ when considering how to regulate homeowner associations and argues that these approaches are flawed, especially in the context of political sign bans. Finally, Part IV proposes a new approach to association bans on political signs based on the public policy exception found in traditional contract law. Specifically, this public policy approach focuses on the substantial societal interests in: (1) preserving the ability of individuals to freely express themselves in their homes; and (2) promoting open and honest discourse relating to electoral politics.

The proposal outlined in Part IV is firmly rooted in the two current approaches to regulating homeowner associations: the contractual approach and the constitutional approach. Both approaches have significant strengths and weaknesses. The proposal offered by this Note attempts to capitalize on the best aspects of each approach while minimizing the negative aspects. The proposal reaffirms the sound policy of generally enforcing homeowner association restrictions but carves out a narrow exception based on the significant negative consequences of over-regulating political signs.

The solution offered by this Note is not as drastic as it might first seem given the long-standing common law tradition of allowing courts to imply public policy exceptions to the general principle of freedom of contract. The constitutional values embodied by political signs are precisely the type that this limited exception was intended to protect. Of course, such an approach poses the risk of judicial arbitrariness and subjectivity. As a normative matter, this Note argues that such a risk is worth taking to protect a value as important as political speech. Further, the risk is not so high in this context because the public policy exception is narrowly confined to the realm of political signs. Finally, the exception proposed by this Note is a moderate one built upon the Supreme Court's well-established "time, place, and manner" approach to unintentional infringements of protected First Amendment speech.

II. BACKGROUND

A. The Growth of Homeowner Associations

In twenty-first century America, it is becoming increasingly difficult for individuals and families to realize the dream of home ownership without also becoming a member of a homeowner association.16 Barely a blip on the housing radar screen a generation ago, association-governed communities, sometimes referred to as common interest communities,17 have grown rapidly in many parts of the country during the past several decades.18 As of 2003, an estimated fifty million Americans lived in communities governed by some type of homeowner association,19 and it is estimated that in the past five to eight years more than 80 percent of new housing starts have been part of an association-governed community.20 In many major metropolitan areas, association homes account for over 50 percent of all new home sales.21

Developers rely on homeowner associations as their preferred organizational form because they have proven to be highly profitable.22 Although it is hard to pinpoint one particular reason for the increase in popularity, homeowner associations are thriving at least in part because "they help protect home values, provide affordable ownership opportunities, help meet the increased privatization of services as local governments cut back, and are efficient land planning, land use and conservation techniques."23 Association living is also an appealing option for those who wish to become homeowners but are "weary of crime, social ills, and the inability of government to address these pressing concerns."24

While the rise of association-governed communities has been largely positive for homeowners, developers, and municipalities, its effect on the broader social and political landscape is more difficult to calculate. One commentator has described the emergence of homeowner associations as a "quiet revolution" with far-reaching effects on political and social arrangements across residential communities throughout the country.25 Another commentator has argued that associations impose substantial negative externalities on non-members by developing exclusive communities and increasing the fiscal burdens of both local and state governments.26 Whether viewed as a positive or negative force, the continuing expansion of homeowner associations has had, and will continue to have, a profound impact on a variety of diverse groups and interests in countless communities across the country.

B. Homeowner Associations: Structure and Function

1. Overview

There are three features that distinguish ownership of an association home from traditional homeownership.27 First, the association holds title to the common property in the development and the individual owners share ownership and access to this property by virtue of their association membership.28 Second, membership in the homeowner association is automatic when new residents purchase their homes; therefore, homeowners must abide by the usage restrictions that run with the property.29 Third, association members must pay an "assessment," a fee that is used for maintenance of the common property and other services.30

Real estate developers have been the driving force behind the growth of homeowner associations over the course of the last several decades. Typically, a developer will lay the legal foundation for a homeowner association long before any residents purchase their lots or their homes.31 The developer actually brings the association into existence by recording a set of creating documents that typically includes: a declaration, bylaws, articles of incorporation, plats, and deeds.32 One scholar has characterized these documents as "akin to a state's constitution"33 because of their foundational nature and their nearly immutable impact on the character of the community.

2. The Declaration and the Association Board

Most important among an association's founding documents is the declaration.34 Declarations are typically authored by the developer and are normally only subject to amendment by a supermajority vote of all the members in the homeowner association.35 Because the amendment process usually requires at least two-thirds of all members to approve the change, the existence of absentee owners and renters makes the necessary vote totals very difficult to secure.36 The difficulties inherent in modifying the declaration mean that "the developer's idea of how people should live is, to a large extent, cast in concrete."37

Assuming that the developer includes a ban on political signs in the declaration,38 a homeowner who wishes to challenge such a ban faces a Sisyphean task. If she cannot command a two-thirds majority vote to amend the declaration, she must challenge the restrictions in court.39 In most states, however, declaration restrictions are enforceable against association residents absent a showing that they are unreasonable.40

Because the amendment process, as administered by the association board, is the first line of recourse for any homeowner who wishes to challenge a restriction, the form of the association board itself is also an important consideration. One commentator has characterized the majority of association boards as "illiberal and undemocratic."41 Similarly, another commentator has argued that "[r]ather than participatory democracies, residents describe their associations as operating at arm's length from individual residents."42

These criticisms emanate from the reality that association boards are often inflexible, self-selecting bodies.43 Although membership on the board of directors is typically open to all members of the association in good standing,44 boards do not necessarily reflect a broad cross-section of the popular sentiment within the community. Because board members are typically uncompensated, they may be comprised largely of individuals who have the greatest desire to protect their own self-interest rather than those who wish to unselfishly protect the best interests of the community at large.45 As a result, boards may be composed of residents with "an authoritarian bent" who enjoy exercising power over their neighbors.46 In recognition of, and in response to this problem, many states have enacted laws requiring boards to act in a more transparent fashion with respect to their meeting schedules and rulemaking processes.47 Even with added transparency, there is still no guarantee that association boards will alter their behavior or become more receptive to popular sentiment among the rank-and-file members of the association community.

3. Involvement of Local Government

In addition to authoring a declaration that will create a community and attract potential homebuyers, developers must take the necessary steps to secure government approval for their planned communities. They must write articles of incorporation and bylaws that will garner the approval of local planning officials.48 In many instances, developers must undertake a small-scale lobbying effort to procure the necessary approval from city officials for a new development.

Despite the sometimes onerous approval process, local governments generally encourage the development of association-governed communities.49 Local governments have tremendous incentive to promote this type of growth because such communities reduce overall expenses while simultaneously increasing the taxbase.50 Association-governed communities provide this benefit to local governments by simultaneously attracting new residents to the community while privatizing certain services formerly performed at public expense. Thus, there are more taxpayers, but, theoretically, less public expenditures.

Local governments play an essential, yet underestimated, role in the expansion of association-governed communities throughout the country.51 Indeed, some commentators contend that the growth of association-governed communities would not have been possible if not for the "plenary authority exercised by municipalities over the use and development of land within their jurisdictions."52

4. The Association as Service Provider and Private Government

Planned community living is the area in which the association serves its two primary, ongoing purposes: protecting property values and life-style preferences.53 To achieve these goals, the homeowner association performs four basic operational functions: (1) it maintains common areas; (2) it arranges for delivery of services; (3) it taxes members through regular and special assessments to pay for amenities and services; and (4) it protects neighborhood aesthetics and real estate values by enforcing the declaration.54 In addition to these core functions, homeowner associations may also provide other services such as: day care; traffic regulation; street maintenance; park and recreational facility maintenance; elementary schools; and law enforcement and security.55

What is striking about these functions is that they replicate and supplement the functions that the local government performs. They are viable-meaning residents are willing to pay for them-because many believe that homeowner associations can deliver certain services more efficiently and effectively than the local government.56 The prevailing wisdom is that, by administering the community, homeowner associations not only deliver what residents need, but also allow "people of similar backgrounds and values . . . to join together to create a strong sense of community at the local level."57 Both features have the added benefit of increasing property values. For this reason, the Advisory Commission on Intergovernmental Relations ("ACIR") Report on Residential Community Associations ("RCA") called the trend in homeowner association growth "the most significant privatization of public services in recent times."58 This same trend has also led several commentators to characterize homeowner associations as "private governments."59

Unquestionably, homeowner associations play a formative role in shaping the social and civic character of their members' lives. Because residents look to their homeowner association for many traditional municipal services, they are often more loyal to their particular homeowner association than to their hometown government. This loyalty arises, at least in part, because residents feel that their homeowner association does a superior job of delivering most, if not all, desired public goods and services formerly provided by the local government.60 Indeed, in many association-governed communities, residents have protested against paying local taxes, which they view as being duplicative of the assessments that they already pay to their homeowner associations.61

III. ANALYSIS: HOW SHOULD THE LAW TREAT HOMEOWNER ASSOCIATIONS AND POLITICAL SIGN BANS?

A. Overview

For many of the reasons detailed above,62 the search for an appropriate legal framework for the homeowner association has frustrated legal scholars and courts.63 Clean, categorical distinctions are nearly impossible to come by when it comes to homeowner associations.64 Finding a framework for the homeowner association is problematic because there is not one that can be "transferred wholesale" to this context.65 Part III will analyze two competing approaches in an attempt to develop a coherent approach to this challenging problem.

When characterizing the legal dimensions of homeowner associations and how best to regulate them in light of their complex structure, there are two predominant approaches:66 (1) the contractual/consent approach, which focuses on the belief that associations are based on the consent of private parties; and (2) the constitutional approach, which conceives of associations as mini-governments that should be accorded state actor status.67

From the standpoint of a homeowner who wishes to litigate the issue of political sign bans, neither of these approaches, in their purest forms, offers much promise. Under a strict application of the contractual/consent approach, assuming no fraud or duress in the formation of the contract, the homeowner has no remedy because she consented to the ban when she voluntarily purchased her home and became a member of the association. Likewise, under a strict application of the constitutional approach, the homeowner has no redress. Although a ban on political signs from the local city council would be an impermissible abridgement of free speech under the First Amendment, courts do not typically find that homeowner associations are state actors. Therefore, no First Amendment protection is afforded to homeowners who live in privately operated homeowner associations. Thus, a homeowner who wishes to display a political sign on her front lawn has no remedy short of selling her house and moving to a neighborhood that is not governed by an association.

The remainder of this Part will detail the basic elements of these two analytical approaches, offer criticism of both approaches, and identify elements from each that may be helpful in order to develop a novel approach to the regulation of political signs in private homeowner associations.

B. Contractual/Consent Approach

1. Overview

The contractual/consent approach68 to homeowner associations is, for the most part, exactly what it suggests: a framework that views associations as private organizations that should be governed exclusively by contract law and property law, and that are not subject to the constitutional rules that apply to state actors.69 The basis for this straightforward approach is the notion "that because all residents agreed to the terms and conditions of the [association] rules, the [association] regulations should be given great deference."70 Thus, the theory postulates that when a homeowner signs the contract to purchase her home, she does so with actual or constructive knowledge of the accompanying covenants that burden the real estate and she thereby consents to these restrictions. As a result, the homeowner is left with few, if any, contract or property law mechanisms at her disposal if she wishes to challenge the restrictions to which she previously "consented."71

The key element of the contractual approach is the idea that the homeowner gives actual consent to be bound by the particular covenants and restrictions that affect her land and her usage of that land. As Professor Epstein asserted quite succinctly, "[t]he logic of contracting is the logic of unanimous consent."72 One major problem with this idea of unanimous consent arises, however, if the consent is not expressly given, but is assumed based on constructive notice of the covenants or, worse yet, is completely fictionalized.

Professor Alexander further explained the theory behind the contractual model with respect to covenants running with the land, such as those that govern homeowner associations, and subsequent purchasers:

The standard explanation used to reconcile running covenants with individual freedom is that a legal system that holds a subsequent owner to a promise made by a predecessor is in fact enforcing private intentions. This intentionalist model necessitates assuming that the person who succeeded to the promisor's estate has assented to the obligation even though he may never have expressed his consent. The purchaser manifested her assent simply by purchasing land subject to a discoverable obligation. The obligation is not law-imposed but privately created, and the whole regime of land-use obligations running with the land is thereby erected on the foundation of free choice.73

The idea of homeowner assent to covenants running with the land by virtue of the act of purchase is one of the central tenets of the contractual theory. By employing this mechanism to signify consent by the homeowner, however, the contractual approach necessarily rests upon the assumption "that consumers make rational, economically efficient choices in housing purchase decisions."74

Perhaps the biggest strength of the contractual model is its almost clinical simplicity. By relying on a heavily market-driven view of consent, the contractual approach posits a straightforward black-letter rule with no gray area. For this reason, courts75 and commentators that value stability and predictability generally favor the contractual approach.76

Due to the small amount of flexibility permitted by the contractual approach, courts engage in limited review of the substantive restrictions imposed by associations on their members. For the most part, courts will look only to the process through which the restriction was adopted in determining whether to uphold a restriction.77 Occasionally, however, courts will also engage in a perfunctory analysis of whether or not a substantive association regulation is "reasonable."78

Arguably, "reasonableness" is not a true standard of review. Rather, it is a way for a court to substitute its own substantive value judgments in rare instances when it finds an association regulation to be repugnant to its own subjective definition of "reasonableness."79 Along these same lines, commentators have criticized "reasonableness" review by comparing it to traditional substantive due process analysis and arguing that this practice "permit[s] reviewing judges to substitute their standards of wisdom and fairness"80 in the face of clearly written regulations.81 Despite concerns over the use of the "reasonableness" standard, courts rarely strike down association regulations on the grounds that they are unreasonable.82

2. Limitations of the Contractual/Consent Approach as Applied to Political Sign Bans

Despite the appeal of its ordered simplicity, the contractual model is flawed. As applied to the issue of political sign bans, the contractual model is problematic for two very important reasons. First, there is a lack of meaningful consent to the restriction. Second, homeowners have a lack of meaningful choice due to the homogeneity of most housing markets.83

a. Lack of Meaningful Consent

The notion of consent relied upon by the contractual model is inapposite in the homeowner association context due to the nature of the transaction and the way in which covenants are bundled by the associations. In the contractual model, homeowner consent is premised on the idea that purchasing with notice of restrictions, either actual or constructive, equals consent. One scholar has observed, "With consent to servitudes constructively inferred, their acceptance by homebuyers reflects little autonomous will."84 The problem of inferred consent is compounded in the homeowner association context by the almost non-existent bargaining power possessed by the homeowner in this transaction. In most homeowner associations, numerous servitudes are commonly "bundled" together with the real estate.85 Consequently, a purchaser's ability to select or decline the terms and restrictions governing her purchase is severely limited.

Since prospective homebuyers are not able to dicker over individual terms and restrictions imposed upon them by homeowner associations, it is almost impossible for a homeowner to manifest explicit consent to individual terms. When it comes to the restrictions imposed on a development by the declaration, it is an all-or-nothing proposition for the homeowner, who must either take or leave the entire package. Arguably, a prospective buyer's ability to walk away from a transaction and purchase a home in a "competing" association will lead to an efficient marketplace in which homeowner preferences are optimized. In many housing markets, however, lack of differentiation between competing developments counteracts this notion.86

This lack of differentiation is compounded by the fact that all homeowners automatically become members of their respective associations once they purchase their homes.87 One scholar has focused on the compulsory nature of membership as a cause for concern when analyzing whether residents give meaningful consent to be bound by association rules and regulations.88 If it were common practice to separate the act of purchasing from the act of consenting to the restrictions enforced by the homeowner association, then the contractual model's theory of consent may not be so problematic.

In the context of political sign bans the consent problem becomes even murkier because this particular type of restriction is not typically something that a new homebuyer is likely to be cognizant of when purchasing an association home. Since the culture of free speech is so central to our democratic society,89 it is quite likely that many homebuyers have no inkling that they could be subjected to such a restriction in their own homes. As a result, actual knowledge of the restriction may only be gained when the homeowner desires to engage in the prohibited conduct and is denied permission to do so. Situations such as these are the kind that can cause great tension due to the dissonance between buyer expectations and reality. What the homeowner believes she is consenting to when she purchases her home and what she is actually consenting to are often incongruous.

b. Lack of Meaningful Choice

In many housing markets, the lack of meaningful consumer choice also creates serious problems for the contractual model. Proponents of association living argue that residents accept certain burdens when they choose to live in an association-governed neighborhood. Others have questioned whether residents really have a meaningful choice in accepting the burdens along with the benefits. In many housing markets,90 consumer choice is relatively limited because most available housing is organized under the homeowner association model, and most homeowner associations provide similar services, fees, and restrictions.91

As association-governed communities become simultaneously more common and more similar to one another,92 consumer choice is increasingly limited.93 Thus, the claim that buyers have a substantial amount of choice in the marketplace is somewhat dubious. The uniformity of the bundled restrictions offered by competing developments becomes a larger problem as markets grow more homogeneous.94

Even those who refuse to accept the argument that market homogeneity is a meaningful limitation on overall consumer choice, must acknowledge that sign bans, political or otherwise, are apt to be included as "standard" aesthetic regulations in almost all homeowner association declarations.95 This creates a vicious cycle because if one association includes such a ban, there is the tendency for all similarly situated associations in the same geographic region to include that very same ban.96 Rather than giving consumers increased choice in order to differentiate themselves, homeowner associations are actually inclined to preserve their underlying similarities and maintain the status quo.

Furthermore, just as membership in a homeowner association is automatic, membership cannot be resigned unless a homeowner sells her house and moves out. Thus, there are very high exit costs for a homeowner who wishes to extricate herself from a particular association.97 From a practical perspective, when the only alternative is selling one's house and moving, many homeowners will simply bear the negative consequences of undesirable regulations.

C. Constitutional Approach

1. Overview

In contrast to the contractual approach, the constitutional approach is a less traditional way to characterize homeowner associations and their attendant legal responsibilities. It seems only natural that those opposed to the regulation of free speech, and political speech in particular, would invoke the First Amendment to supply a remedy. However, it is well established that the Constitution only prohibits actions by private actors when they are fairly attributable to the State; the Constitution "erects no shield against merely private conduct, however discriminatory or wrongful."98

For this reason, scholars and litigants have been eager to make the case that the actions of homeowner associations are fairly attributable to the State and deserve to be restricted according to the dictates of the Constitution. This assertion is not unfounded given the large number of analogies that can be drawn between homeowner associations and local governments.99 While the Court has developed a handful of state action theories over the past several decades, two seem particularly applicable to the homeowner association context:100 (1) the public function theory; and (2) the symbiotic relationship theory.

2. Public Function Theory

The public function theory is rooted in the seminal state action case, Marsh v. Alabama.101 Marsh considered the case of Grace Marsh, a Jehovah's Witness, who was convicted of criminal trespassing for distributing religious literature on the streets of a privately owned "company town."102 The key issue before the Court was whether a private company, the Gulf Shipbuilding Corporation, that owned and operated the "company town" of Chickasaw, Alabama, should be recognized as the equivalent of the State for the purposes of the First Amendment.103 The Court held that, as applied to Ms. Marsh, the Alabama criminal trespass statute was an unconstitutional abridgement of the First and Fourteenth Amendments.104

Central to the Court's holding in Marsh was the striking similarity between Chickasaw and other typical American towns of its era. In an oft-cited passage, Justice Black wrote:

The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Shipbuilding Corporation. Except for that it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a 'business block' on which business places are situated.105

One lasting legacy of this passage has been the scholarly and judicial focus on Justice Black's assertion that Chickasaw possessed all, rather than merely some or most, of the characteristics of a typical American town. As subsequently interpreted, this language set the bar very high for courts to find that a private entity assumed all, or at least a sufficiently large number, of the traditional public functions in a given locality to merit a finding of state action.106

At first blush, the homeowner association seems to be the modern analogue to the company town found in Marsh. As one scholar argues, the primary holding of Marsh can be viewed as a "narrow expansion of constitutional protection applicable only to company towns and other privately owned communities that are the 'functional equivalent of . . . municipali[ties]' . . . ."107

If homeowner associations are viewed in the eyes of the law as the functional equivalents of municipalities, just as company towns were in the 1940s, then this "functional equivalent" argument has substantial merit. From a functional standpoint, there are similarities between homeowner associations and municipalities because most associations provide services such as street cleaning, trash collection, snow removal, and maintenance of common areas.108 In addition, associations also impose zoning-type regulations like those usually imposed by local governments, such as building and occupancy restrictions.109 Because of these similarities, one scholar argues that the Court's public function paradigm, as first articulated in Marsh and later clarified in the shopping center cases,110 should be updated to encompass certain types of association-governed communities.111

The public function theory of state action is further complicated by its ill-defined parameters. The cleanest articulation of the public function theory can be found in Rendell-Baker v. Kohn.112 In Rendell-Baker, the Court asserted that a private entity might fall under the umbrella of the public function theory of state action if the function performed was one that was "traditionally the exclusive prerogative of the State."113 While this seems to lend clarity to the analysis, it may actually raise more questions than it answers because the inquiry is necessarily an incredibly fact-intensive exercise,114 which can yield vastly different results from case to case.

3. Symbiotic Relationship Theory

At its core, the symbiotic relationship theory of state action relies upon the premise that if the government is so intimately involved in certain private activity, it defies logic and common sense to characterize this activity as anything other than the work of the State. The first case that sketched out the parameters of what would become the symbiotic relationship theory was Burton v. Wilmington Parking Authority. In Burton, the Court held that the exclusion of an African-American patron from a restaurant solely on the basis of race was discriminatory state action in violation of the Equal Protection Clause of the Fourteenth Amendment.115 The Court's decision turned on the fact that the restaurant was operated by a private owner who leased the premises from the Wilmington Parking Authority, an agency of the State. Significantly, the Court stated that "the State has so far insinuated itself into a position of interdependence with Eagle [restaurant] that it must be recognized as a joint participant in the challenged activity."116

In subsequent cases, the joint participation element came to be the key component of the Court's analysis under the symbiotic relationship theory. In Jackson v. Metropolitan Edison Co.,117 the Court articulated the test somewhat differently when it wrote, "[T]he inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself."118 At present, the concept of "a sufficiently close nexus" between the State and a private actor remains the central focus of the Court's inquiry when applying the symbiotic relationship theory.

As previously discussed,119 the symbiotic relationship theory of state action may be applicable to homeowner associations for several reasons. First, associations are the result of conscious policy choices by local municipalities. Second, associations and local government act as partners in revenue collection and/or service delivery.120

4. Limitations of the Constitutional Approach as Applied to Political Sign Bans

a. Public Function Theory

Despite the functional similarities between associations and local governments, several major problems arise when applying the public function theory to homeowner associations.121 With few exceptions,122 homeowner associations fall short of Marsh's mandate that a private entity must take over all public functions traditionally performed by the State in order to be considered a state actor. The absence of a business district from most homeowner associations is one of the main factors that prevents a complete Marsh analogy. Because homeowner associations are, by their very nature, almost uniformly one-dimensional in their residential character, this is a problem that is not easily overcome. While one commentator has argued that the Chickasaw/company town paradigm needs to be refreshed for the modern era,123 there is little evidence in the years since the shopping center cases were decided that the Court is willing to engage in such a revision to the doctrine.124

Those eager to apply the public function theory to homeowner associations may point to the laundry list of similarities between associations and local governments.125 In response to this argument, one commentator wrote, "Those advocating the application of the Constitution to private associations offer nothing more than a thinly veiled substantive choice among competing normative values."126 In other words, associations only appear to resemble state actors, as traditionally defined by the Court, because certain parties have a social or political agenda that requires them to be viewed as such.

Perhaps the best hope for a successful application of the public function theory to association bans on political signs is a reconsideration of the shopping center cases along the lines suggested by Justice Marshall in his Hudgens v. National Labor Relations Board dissent. Justice Marshall wrote:

The underlying concern in Marsh was that traditional public channels of communication remain free, regardless of the incidence of ownership. Given that concern, the crucial fact in Marsh was that the company owned the traditional forums essential for effective communication; it was immaterial that the company also owned a sewer system and that its property in other respects resembled a town.127

By dispensing with the requirement that a private entity possess all of the incidents of a normal town to qualify as a state actor, and instead focusing on the question of private control over "traditional public channels of communication," Justice Marshall offered an approach that is applicable to the association context. Since homeowner associations exercise control over the display of political signs on land incident to privately owned homes (a traditional public channel of communication), this may be sufficient to satisfy the state action requirement.128 In other words, if a court were to accept Marshall's argument that Marsh's holding was driven by Gulf's control over the traditional public forums and means of communication in Chickasaw, then it may be immaterial that most association-governed communities do not have "all the characteristics of any other American town."129

b. Symbiotic Relationship Theory

Under the symbiotic relationship theory, it would also be difficult to support the claim that the State is a joint actor with a homeowner association. While local governments are typically involved in the preliminary stages of association development,130 it is difficult to argue that they have much lasting involvement with the administration of homeowner associations.

Some have argued that homeowner associations are the result of conscious policy choices by local municipalities, which, in turn, create virtual partnerships between associations and local governments,131 but this argument is problematic because the Court has set the bar very high for finding state action under the symbiotic relationship theory. In finding, or refusing to find, the symbiotic relationship test satisfied, the Court has stressed that the private entity must "insinuate itself into a position of interdependence"132 with the State or have a "sufficiently close nexus"133 with the State. In light of precedent, and the narrowing scope of its application, most homeowner associations are not likely to be classified as state actors under the symbiotic relationship theory. As a practical matter, the list of private entities that have not met the Court's stringent test include: a private club licensed by the State,134 a privately owned electric utility heavily regulated by the State as a government-approved monopoly,135 and a private school136 and private nursing home137 that were both funded, licensed, and regulated by the State.

Other difficulties with the symbiotic relationship theory as applied to homeowner associations are the lack of a principled test to guide its application and the heavy dependence upon case-by-case factual analysis.138 As the Court stated in Burton, "Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance."139 Likewise, one scholar commented, "In virtually every case, however, the ultimate question seems to be factually based, with state action being applied when 'the facts warrant such a finding."'140 By engaging in a fact-based totality-of-the-circumstances test, findings of state action become very subjective determinations, which have the potential to be influenced by the court's sympathies toward the underlying claim presented by the litigant.141 As a practical matter, this uncertainty may deter homeowners who wish to challenge these bans in court under the symbiotic relationship theory.

c. The State Action Doctrine Generally

The Court's growing hostility to the state action doctrine itself over the last several decades is another relevant consideration that limits the utility of the constitutional approach in challenging homeowner associations' political sign bans. After a period of expansion that lasted until the 1970s,142 the Court has limited the scope of the doctrine in recent years.143 In most recent cases, the Court has declined to find state action unless the factual circumstances closely mirror past precedent.144

One plausible explanation for this trend is that the Court created the state action doctrine in order to remedy social wrongs that Congress had failed to address.145 For example, the Court was apt to find state action in the post-war era, but curtailed such findings after the enactment of much of the federal civil rights legislation in the 1960s and 1970s.146 Essentially, the Court used state action as a tool of judicial activism at a time when the legislature remained silent on pressing issues such as racial discrimination and segregation. Once Congress stepped in to prohibit discrimination in numerous private contexts, judicial intervention on this front became less critical. Furthermore, the Rehnquist Court made a concerted effort to refrain from engaging in this type of judicial activism. Assuming that the Roberts Court will carry on this ethos of judicial restraint, it will be very difficult to break new ground in the realm of state action.

IV. PROPOSAL: LIMITATION ON ASSOCIATION REGULATION OF POLITICAL SIGNS BASED ON PUBLIC POLICY

A. The Remedy: Traditional Contract Law Public Policy Justification for Holding Political Sign Bans Unenforceable

Given the problems presented by homeowner associations and the limitations of the existing analytical frameworks when applied to the issue of political sign bans, a new approach is necessary to address these concerns. A sensible place to start is by combining the core insights of the two existing frameworks while minimizing their problematic aspects. The core insight of the contractual approach is that, at a minimum, parties come to the community with constructive knowledge of homeowner association restrictions. If this assumption is correct, then courts generally should uphold such restrictions. Courts should make an exception, however, with respect to restrictions that (1) impair the ability of individuals to freely express themselves in their homes; and (2) impede open and honest discourse relating to electoral politics.147 Protecting these values is the core insight of the constitutional approach. This insight requires courts to invalidate political sign bans on public policy grounds.

A limited exception to the contractual approach for political sign bans does not require judicial adoption of a public policy exception to freedom of contract when reviewing association regulations generally.148 Rather, it requires a more modest change. Invalidation of contracts, or specific contract terms, based on the concept that they are contrary to public policy is a well-established practice in our common law tradition.149 When interpreting a contract, courts seek to give effect to the intent of the parties. As an initial matter, courts attempt to gauge the intent of the parties by focusing on the specific language contained within the written document that memorializes the parties' agreement. Courts parse the language of the contract by construing the specific terms in accordance with their plain meaning and other generally accepted canons of construction. However, there are certain special instances when a court recognizes that an external control "imposed by the world around the bargain"150 trumps the plain meaning of the contract language. In these cases, courts may choose not to enforce a contract, or a specific contract term, on the grounds that it is against public policy.151

According to the Restatement (Second) of Contracts, a contract term may be unenforceable if "the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms."152 Furthermore, a court may elect to strike down certain problematic terms as against public policy based on "its own perception of the need to protect some aspect of the public welfare."153 In many instances, the "against public policy" rationale for unenforceability is synonymous with illegality. For example, "A contract may be contrary to public policy because the performance that is bargained for is against public policy. [Thus], a contract to set up a gaming business may be contrary to public policy because the creation of a gaming enterprise and gaming are illegal."154 However, illegality is not a necessary condition for unenforceability of a contract term on public policy grounds. The need to protect some critical aspect of the public welfare underpins the public policy exception to freedom of contract. Thus, "a court may determine a public policy and may determine that a particular contract contradicts that policy by simply evaluating the prevailing practices and notions of the community as to what is in the interest of the general welfare of the society."155

There are understandable objections to the public policy approach. Courts ordinarily review the process, not the terms or substance, of association rules and rulemaking.156 This limited review reduces the risk of judicial arbitrariness and subjectivity. However, in the case of political sign bans, this level of review under-protects the important value of free speech. The new approach proposed by this Note attempts to strike a sensible balance between these competing concerns. As the following section shows, the balance must tip in favor of free speech over association bans on political signs.

B. The Reasoning: Analogous to the Reasons that Core Political Speech Is Protected from Governmental Interference by the First Amendment

Although political signs often are small in size, their significance is enormous. Indeed, political signs vindicate the values at the heart of the First Amendment's protection of free speech. Furthermore, the importance of such speech, i.e. core political speech that directly contributes to the "marketplace of ideas,"157 is not diminished in a neighborhood operated by a private homeowner association. It is axiomatic that the principal aims served by free speech in the United States are (1) promoting individual autonomy, self-expression, and self-fulfillment; and (2) facilitating representative democracy and self-government.158 The remainder of this Part demonstrates that a public policy approach to association regulation of political signs is justified because political signs are a vital mechanism by which to advance these core principles.

1. Individual Rights Concern: Tradition of Special Respect for Individual Liberty in the Home

Dating back to colonial times, the "freedom of one's house" has been at the core of the American conception of individual liberty.159 The Third and Fourth Amendments integrated this freedom into our constitutional scheme to prevent unwanted and unjustified intrusion into the home by the government.160 In modern times, this freedom has also been recognized by implication, most notably in the series of Supreme Court cases developing the "right to privacy."161

The centrality of the home to the American conception of individual liberty embodies the fundamental belief that property is the guardian of personal liberty.162 The essence of personal liberty, in turn, is the ability to express one's self and one's viewpoints freely and without interference. Thus, as a practical matter, one's home allows an individual to have an unregulated forum for free expression and self-realization. So long as the law prevents the government from intruding into the home, individual liberty and self-expression will thrive.

In Stanley v. Georgia, a First Amendment obscenity case, Justice Marshall wrote,

If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.163

Although Stanley by no means provides a perfect analogy to political sign bans,164 Justice Marshall's words reverberate in this context by emphasizing that the cultivation of one's own intellectual, moral, political, and sexual self within one's home is an undertaking that is zealously protected by the traditions of our culture and our legal system. Accordingly, any intrusion into this protected realm necessarily requires the strongest justification and the utmost restraint.

Political sign bans do substantial damage to this ideal. In a very meaningful way, association bans on political signs wreak the same havoc on "men's minds" as the obscenity laws at issue in Stanley. As one commentator observed, "In a society which increasingly abstracts and renders fungible so much in our lives, we should protect opportunities to be peculiarly one's self, even at the expense of the neighbors' heightened aesthetic sensibilities . . . ."165 By restricting one of the most powerful forms of free speech that can be undertaken on one's own property, often in the name of "aesthetic sensibilities," political sign bans erode the traditional respect that our society places on individual liberty and self-expression in the home.

Furthermore, assuming that the exercise of free speech promotes individual autonomy, self-expression, and self-fulfillment,166 there is substantial societal value in protecting that very exercise in the home because it is the forum where most individuals feel most secure engaging in it. This assertion carries special significance in relation to political signs because the location where this particular type of speech occurs adds invaluable credibility to the content of the message. Since the display of a political sign "signal[s] the resident's support for particular candidates, parties, or causes,"167 it is a form of political speech, which is inextricably linked to the identity and community reputation of the speaker. Although their size and mobility allow for the display of political signs in many locations, there is no more profound statement of one's beliefs than to sing them from the rooftop, quite literally, of one's own home. By invoking public policy to invalidate association bans on political signs, courts can preserve our cultural and legal tradition of guarding the home as a precious sanctuary of individual liberty and self-expression.

2. Systemic Rights Concern: Protecting the Marketplace of Ideas and the Proper Functioning of Our Democratic System

When a free man is voting, it is not enough that the truth is known by someone else, by some scholar or administrator or legislator. The voters must have it, all of them. The primary purpose of the First Amendment is, then, that all the citizens shall, so far as possible, understand the issues which bear upon our common life.168

Beyond the individual rights rationale, a second justification for the public policy approach emanates from the concept that free expression is a right derived implicitly from the role that public debate and elections play in our democratic system of government. In Masses Publishing Co. v. Patten,169 Judge Learned Hand began the movement away from the notion that free speech is solely an individual right by characterizing the right of free speech in the collective, as the source of governmental authority in a democratic society.170

Over the years, many scholars, most notably Dr. Alexander Meiklejohn, expanded on Judge Hand's conception of free speech as a systemic right171 that is clearly inferable from our constitutional structure of government. In Richmond Newspapers, Inc. v. Virginia, the Supreme Court cited Meiklejohn, and others, when it wrote, "The First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government."172 Similarly, Professor Emerson also articulated the fundamental role that free speech plays in our democratic system when he wrote:

The crucial point, however, is not that freedom of expression is politically useful, but that it is indispensable to the operation of a democratic form of government. Once one accepts the premise of the Declaration of Independence-that governments derive "their just powers from the consent of the governed"-it follows that the governed must, in order to exercise their right of consent, have full freedom of expression both in forming individual judgments and in forming the common judgment.173

The role that free expression plays in fostering our democratic system of self-government is most clearly exemplified by one particularly vital act: voting. Thus, the need to zealously guard free speech in our society "is a deduction from the basic American agreement that public issues shall be decided by universal suffrage."174 Without the protections afforded by the principles of free speech, the electoral process that is at the core of the American democratic system of government becomes de-legitimized.

Political sign bans imposed by homeowner associations are a dangerous rebuke to the argument that free speech serves an exalted purpose in our system of government. While Hand and Meiklejohn were primarily concerned about governmental interference with speech, the reasoning behind their concerns is no less applicable when private homeowner associations interfere with the free speech of their members in their homes. An individual voter's ability to contribute to the marketplace of ideas, or her opportunity to be influenced by that very same marketplace, should not be stifled simply because she chooses to live in a community governed by a homeowner association. A voter's role in the proper functioning of our democratic system of government is equally important regardless of her home address. As the Supreme Court has asserted, political "[s]igns that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community."175

Without the ability to display political signs on private property, communities, and more specifically elections, may evolve into empty voids within the democratic landscape where only a few select voices will be heard concerning the candidates or the issues. As Professor Emerson wrote, "It is through the [electoral] process that most of the immediate decisions on the survival, welfare and progress of a society are made. . . . Freedom of expression in the political realm is usually a necessary condition for securing freedom elsewhere."176 If this "necessary condition" is missing or significantly diminished in its scope by bans on political signs, then the maintenance of a fully optimized electoral process, fueled by lively and robust public debate, becomes increasingly difficult.177 Accordingly, the electoral process is at risk of being gutted of its intended constitutional purpose as the mechanism to secure "the consent of the governed."178

Avoiding over-generalization, it is not far-fetched to presume that many Americans gain awareness, especially during the early stages of election season, about political candidates and issues while driving through the streets of their local community and viewing the political signs displayed on their neighbors' lawns.179 The home is an especially powerful forum from which to voice one's political viewpoints. The placement of a political sign on one's property is an unequivocal declaration of one's political beliefs for all to see and, more importantly, consider for themselves. As one commentator noted, "[Political campaign signs] have maximum effect when they go up in the windows of homes, for this demonstrates that citizens of the district are supporting your candidate-an impact that money can't buy."180 Moreover, when taken in the aggregate, the sheer number of signs for a particular political candidate throughout a given community can signal the relative strength or weakness of a particular political viewpoint; information that could bear on a voter's ultimate Election Day decision.

The Framers recognized "that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be the fundamental principle of the American government."181 Political signs are simple, yet powerful, communicative tools for modern voters to express their political beliefs and stave off the inertia that threatens our democratic system.

C. The Application: Fashioning an Approach Based on the Supreme Court's "Time, Place, and Manner" Cases

Courts should recognize a public policy exception to the general freedom of contract because political signs are core political speech and implicate the most fundamental values of the First Amendment. However, courts need not be insensitive to the motivation behind most association sign regulations: a desire to keep the community "attractive and livable"182 by controlling the creation of too much litter and visual clutter. This raises an important question: when applying the public policy exception, how should courts evaluate association regulations of political signs given that such regulations are generally motivated by legitimate interests? To answer this question, courts should fashion an approach based on the Supreme Court's well-established "time, place, and manner" approach to unintentional infringements of protected First Amendment speech.183

The "time, place, and manner" cases establish that courts should tolerate regulations that accidentally interfere with the exercise of free speech as long as the interference is merely incidental to some other significant state interest.184 In Clark v. Community for Creative Non-Violence, the Court articulated its standard for analyzing regulatory interferences with free speech under the "time, place, and manner" paradigm as follows:185

Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.186

The Court's "time, place, and manner" balancing test weighs the interests inherent in a particular type of speech against the government's interest in regulating that speech indirectly in the name of public order, safety, aesthetics, or tranquility, privacy, and repose.187

Integrating the "time, place, and manner" methodology into the public policy exception for political sign regulations is eminently sensible. In this context, the aesthetic concern is likely to be a primary motivation behind the regulation.188 Despite the strong justifications for a public policy exception,189 it would seem imprudent to assert that such weighty concerns should remove all regulatory power from homeowner associations to curb the potential aesthetic drawbacks of political signs. For instance, a homeowner should not be able to argue for a public policy exception in order to enable her to erect a twenty-foot tall political billboard on her front lawn. Such a result would clearly be absurd.

To prevent such a scenario, courts should fashion an approach similar to the balancing test articulated in Clark.190 When analyzing a "time, place, and manner" regulation, courts will normally: (1) assess the significance of the asserted governmental interests; and (2) determine whether the State has employed the least restrictive means available to achieve its asserted interests and minimize the interference with the activity protected by the First Amendment.191 Courts should undertake a similar analysis in determining whether to invalidate an association regulation of political signs. Courts should: (1) assess the significance of the association's asserted interests in regulating political signs, or external signs generally;192 and (2) determine whether there are less restrictive means to achieve the association's interests while minimizing the interference with political speech.

Indisputably, there are alternative ways for individuals to advocate their political views outside of the home, but the reasoning detailed above193 will ensure that an outright ban on all political signs will fail the balancing test because there is clearly a less restrictive means to achieve the association's interest. By contrast, it will be considerably more challenging to apply the balancing test to an association regulation that limits the size of political signs or the time period during which political signs may be displayed.194 Although speculating about the myriad different factual scenarios is not very fruitful, courts will have to give careful consideration on a case-by-case basis to the interests set forth by associations in light of the extent of the interference with homeowners' free speech interests.

V. CONCLUSION

The influence that homeowner associations have over an everincreasing percentage of the population demands a more exacting degree of scrutiny from the legal and academic community. Political sign bans may only be the tip of the iceberg when it comes to the substantial effect that associations can have on individual liberty and the proper functioning of our democratic system of government.

In arguing for a public policy approach to guide the legal treatment and regulation of political signs in homeowner associations, this Note advocates a proactive approach to this problem. By expanding common law protections,195 both associations and homeowners can come out ahead in the final analysis. Under this approach, homeowner associations can continue to operate and thrive without the burden of being tagged as full-fledged state actors while ceding only a small swath of their contractual and rulemaking autonomy in the name of a broader societal good. Likewise, homeowners can enjoy the essential free speech protections normally guaranteed by the First Amendment and still gain all of the benefits of association living.