With 2024 being an election year, your homeowners’ association (HOA) may be interested in what it can and cannot do to prohibit the display of political and/or election signs in your community. Ultimately, an HOA’s right to prohibit the display of signs is going to depend on the specific governing documents of the HOA. That being said, a frequently asked question is, assuming the HOA’s governing documents allow for the HOA to prohibit political signs, can the HOA actually do so in light of the First Amendment?
While there is not a published South Carolina court opinion directly speaking to this issue, review of decisions from other jurisdictions reveals a typically prevailing position that constitutional free speech protections do not apply to the conduct of HOAs or the terms of restrictive covenants.
A prevailing rationale for this position is that free speech protections apply to “state action,” and “state action” has generally been found to be absent in the context of HOAs and restrictive covenants. Therefore, while there is not published precedent on this exact point in South Carolina, it is foreseeable that a South Carolina court would find that an HOA restriction prohibiting the display of political signage does not violate the First Amendment.
Nevertheless, if your HOA has the authority to prohibit political signs and wants to do so, it is important that the HOA not discriminate against any particular viewpoint or candidate.
The HOA should show no favoritism toward either party, candidate, or viewpoint in its enforcement of such a restriction. For example, if a homeowner can show that their HOA took action to prohibit the display of one candidate’s signs but not another, an aggrieved homeowner could successfully argue that the HOA’s biased actions constitute “selective enforcement,” and a court would foreseeably rule in favor of the aggrieved homeowner. As with any restrictive covenant, it is important that the HOA enforce such a restriction with impartiality.
Our attorneys at McCabe, Trotter & Beverly, P.C. are experienced and well-equipped to answer questions and to discuss issues you may have regarding signage restrictions and the enforcement thereof. Please contact us at (803)-724-5000 for further information.
Written by Fiona Reed
McCabe, Trotter & Beverly, P.C. blogs and other content are for educational and informational purposes only. This is not legal advice and does not create an attorney/client relationship between McCabe, Trotter & Beverly, P.C. and readers. Readers should consult an attorney to understand how this information relates to their personal situation and circumstances. You should not use McCabe, Trotter & Beverly, P.C. blogs or content as a substitute for legal advice from a licensed attorney.