I went to school at the University of Oklahoma, four hours south of the home of the Westboro Baptist Church. The Westboro Baptist Church has been, at times, infamous for the protests its members lodge at military funerals, colleges, and large public events. Members’ signs use offensive terms for LGBTQIA+ individuals, indicate that God hates people who identify as LGBTQIA+, and advocate anti-Semitic, Islamophobic, and other positions that are too crass to spell out here. Their offensive protests are protected, First Amendment speech. The group protested on my campus on occasion, and it’s with some pride that I recall being called a whore for wearing my sorority’s letters.
House Bill 1310 invites the Westboro Baptist Church to your neighborhood.
Introduced on May 10, 2021, HB 1310 seems to offer a great idea – increased protections for free speech in community associations! However, as drafted, the bill will mandate that communities allow the display of all speech that is protected under the First Amendment from interference by the government. It will prevent community associations from regulating the appearance of their communities. Covenants that prohibit flags and signs will no longer be enforceable. I’ll be able to post a sign in my front yard advertising my part-time basket-weaving business. The pro-life owner and the pro-choice owner will get to post their own competing signs, complete with whatever associated images you can conceive. The Association could certainly limit the size of a confederate battle flag flying next to the house with the BLM sign, but it couldn’t prohibit the flag itself.
This is not going to work well for communities. While it is already extremely difficult to regulate flags and signs, the outright prohibitions on these items written into many covenants help communities avoid political conflicts and value determinations. Community associations are not governments and are not state actors, and HB 1310 blurs the line between the rules a private corporation can impose on its (voluntary!) members and the fundamental rights a government cannot infringe upon.
Current law includes guardrails that limit public policy exceptions to covenants that prohibit signs and flags to allow the display of the American flag, service flags, political signs in narrowly-defined periods, and religious items in specified locations and circumstances. Community associations must take action against discriminatory activities where such action is within the scope of their powers, such as requiring the removal of a “white power” sign from a yard. This law will prevent compliance with anti-discrimination laws, as as association “shall not prohibit or regulate the display of [flags, window signs, or yard signs] on the basis of their subject matter, message, or content.”
Residents who want to espouse their political beliefs are permitted to do so in public fora, just like the Westboro Baptist Church. Residents who want to live quietly in uncluttered and peaceful communities should be allowed to do so. House Bill 1310 is poorly conceived and will create liabilities and expenses for communities, and greatly exacerbate conflicts that are already difficult to manage.
The Transportation and Local Government Committee will hold its hearing on the bill on May 25 at 1:30 in the Legislative Services Building, Hearing Room A. You can sign up to testify the day beforehand here. Call and e-mail your legislators and the committee members and tell them to vote NO on House Bill 1310!