The American Civil Liberties Union (ACLU) of Colorado filed suit on February 23rd, in federal court to challenge a subdivision’s rules that arbitrarily prohibit residents from displaying certain flags and signs on their own property. David Pendery, the ACLU’s client, wishes to display a Pride flag at his home to convey solidarity with LGBTQ+ families like his. He also wants to post a “We believe …” sign to encourage inclusivity and kindness. But both signs are prohibited by the rules of the Whispering Pines Metropolitan District #1 (Metro District), where Mr. Pendery lives in Arapahoe County.
“Mr. Pendery has a constitutional right to fly a Pride flag and to post a social justice sign on his own property,” said Mark Silverstein, ACLU of Colorado Legal Director. “The Metro District’s rules, which carry the force of law in the Whispering Pines subdivision, violate the First Amendment and the Colorado Constitution’s guarantee of free expression.”
When Mr. Pendery displayed a Pride flag last summer, he received a violation letter from the Metro District, which has the power to impose fines and place liens on the homes of non-complying residents. The Metro District subsequently granted approval for Mr. Pendery’s Pride flag, but specified that this “approval” would expire on December 31, 2020. The Metro District warned that Mr. Pendery was required to re-apply for “approval” if he wished to fly the flag in 2021.
The Metro District’s rules allow certain flags but prohibit others, like Mr. Pendery’s Pride flag, unless and until advance approval is obtained from the Metro District’s Design Review Committee. Similar rules allow signs with certain messages, but other signs, like the “We believe …” sign Mr. Pendery wants to post, are prohibited without advance approval. The Metro District has complete discretion over whether to grant or deny approval. There are no written guidelines to prevent censorship on the basis of the subject or viewpoint that the flag or sign communicates.
“Mr. Pendery has a constitutional right to fly a Pride flag and to post a social justice sign on his own property.”
Mark Silverstein, Legal Director, ACLU of Colorado
To comply with the Metro District’s rules, Mr. Pendery is currently refraining from displaying the prohibited flag and the unapproved social justice sign. He does not believe he should be required to ask for approval, especially when there are no written guidelines to prevent censorship. ACLU of Colorado has asked the federal district court for an immediate injunction to prevent the Metro District from enforcing its unconstitutional restrictions on Mr. Pendery’s right to engage in constitutionally-protected expression on his own property.
“We immediately felt at home when we moved to the neighborhood last year and formed strong relationships with our neighbors,” Mr. Pendery said. “But it’s incredibly disheartening that the governing body whose primary responsibility is to protect residents’ investments instead chooses to focus its limited resources on violating our right to free speech.”
ACLU’s lawsuit asserts that the rules in Whispering Pines violate the First Amendment in two ways. First, in distinguishing between flags or signs that are automatically allowed and ones that are prohibited absent approval, the rules discriminate on the basis of the message that the sign or flag communicates. Second, when residents are required to seek approval for a sign or a flag, the Metro District has no written guidelines to prevent decisions from being based inappropriately on the message or the viewpoint expressed.
Thousands of Coloradans live in subdivisions or neighborhoods with similar rules that restrict the posting of flags and signs bearing certain messages. Residents are often unaware of restrictions until they receive a notice from their homeowners association (HOA) demanding that a Blue Lives Matter flag or a Black Lives Matter sign be taken down. The HOAs contend that they are private organizations that can restrict speech in ways the government cannot. In contrast, in the ACLU case filed today, the challenged restrictions on Mr. Pendery’s speech are enforced by the Whispering Pines Metropolitan District, a unit of government that is undisputedly bound by the First Amendment.
“The Colorado Constitution declares that all persons shall be free to speak out, but almost all new homes are built in subdivisions with rules enforced by HOAs or metro districts that severely restrict the exercise of this constitutional right,” Silverstein said. “The Colorado legislature should step in and enact legislation to make it clear that both HOAs and metro districts cannot forbid residents from posting signs or flags that express their views on social and political issues.”
In addition to Silverstein, Mr. Pendery is represented by ACLU lawyers Arielle Herzberg and Asma Kadri Keeler, and ACLU Cooperating Attorneys Adam Stern, Maureen Chu, and Desmonne Bennett of Bryan Cave Leighton Paisner LLP.
ACLU of Colorado wants to hear from residents who have received notices that their signs or flags violate the rules of their HOA or metro district. Please write to HOAfreespeech@aclu-co.org.
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