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Preserving Freedom of Expression or Property Rights? For GOP, It Depends

There are circumstances in which the rights of Americans come into conflict with one another, and when that happens people will tend to differ on the priority of one right over another. Take property rights and freedom of expression, for instance. The First Amendment to the United States Constitution guarantees Americans’ freedom of speech. But that right has been taken to exist mainly in the public arena; when a person purchases server space and a domain name, they are said to own a website and have a right to moderate the comments of others there. Newspaper owners have the right to accept or decline letters to the editor. Moving away from written media, you aren’t free to budge into your neighbor’s bathroom and hold forth for hours about the relative merits of American League versus National League baseball teams. Your neighbor’s ownership of her home and her bathroom grant her control over what is said and done there. Her property rights trump your speech rights, and if you don’t like it, you’ll have to take your whining about out of her bathroom and back over to your porch where it belongs.

Matters become more complicated when the nature of ownership is blurred and expression moves from words to actions. What if your neighbor rents? Could the actual owner of her bungalow include a provision in the property lease that allows you to at least enter her living room on demand and quote baseball statistics? Could the property owner require tenants to refrain from holding political meetings in the homes tenants rent? Could the property owner ban the placement of political campaign signs in the yard?

What if a property owner prohibited tenants of a property from flying a flag from the home? What if a homeowner association, which has control over the covenants home buyers sign, dictates that home owners in a development cannot fly a flag from their home? Such cases have arisen in the United States, and in those cases property rights conflict directly with freedom of expression — particularly, the freedom to express oneself by flying a flag. Back in 2005, both the House and the Senate passed H.R. 42, the Freedom to Display the American Flag Act, without a single recorded vote in opposition. Republicans and Democrats alike took to the floor in our nation’s Capitol to extol the virtues of free speech in the promotion of patriotism, and to condemn the dastardliness of property owners or homeowners’ or condominium association boards who attempted to prevent residents from displaying American flags. President George W. Bush signed the Freedom to Display the American Flag Act into law. Action on this bill by Republicans and Democrats alike clearly prioritized the right to place a flag on a property over the right of property owners to dictate how their property is used.

On May 28, 2009, the Maine House passed LD 73, An Act To Protect the Right To Use Solar Energy. LD 73 would make it illegal for deeds, covenants or any other contracts (presumably including leases) to prohibit the erection and use of clotheslines to dry clothes using the clean, renewable energy of the sun. The breakdown of this vote was 76 in favor and 65 against. Every Republican member of the Maine House but one was either not present for the vote or voted against the bill.

When it comes to putting up a flag, Republican legislators are gung-ho about putting property rights on the back burner and supporting the right of residents to do what they wish. When it comes to putting up a clothesline, Republican legislators suddenly are very much interested in property rights and rather uninterested in the right of residents to do what they wish. That’s interesting.

12 comments to Preserving Freedom of Expression or Property Rights? For GOP, It Depends

  • Anonymous

    I dont feel sorry for people who rent or live in homeowner association areas that prohibits things such as cloths lines. When you buy or rent you must sign a contract that says you agree to the terms of the association or renters contract before you take ownership. If you want to do those things dont buy the house or rent there. Its that simple. I wanted to have a large garden, plant grapes, dry my clothes outside, work on my own car in the driveway, put up a chain link fence (wood ones are way to expensive) and what not so when I went to look for a house to buy I looked with those things in mind. I looked for no association to rule the property that I own. Even ones that allowed me to do those things I stayed away from because I may want to do something in the future like build a green house or who knows what. Nothing forces people to stay in areas that control how they use there property and noone forced them to sign the contract…

  • Flanders

    Oh, but a flag, that’s different, “Anonymous”? Hm?

    • Anonymous

      I dont care if people display the flag… Its a piece of cloth. If you sign the contract dont whine about it latter on. Thats just stupid. These are the same people who sign up for credit cards and then cry when the interest is 29.99%, if you dont read the fine print you are stupid. Do not sign something that you do not agree with. If you do you are stupid! I dont care how stupid or unAmerican the contract is, or if it violates your rights, you are the idiot who signed it now deal with it…

  • Tom

    A survey on Yahoo this morning proclaims that more than half of Americans say torture is justified in certain situations.
    Who did they survey the RNC? And how many people did it involve? Ans.:
    “The AP-GfK Poll was conducted May 28 to June 1 by GfK Roper Public Affairs & Media. It involved landline and cell phone interviews with 1,000 adults nationwide and has a margin of sampling error of plus or minus 3.1 percentage points.”

    The sample size is far too small to come to any significant conclusion. This is complete bullshit.

    • Jim

      No, Tom, actually, if the sample is well generated you can conclude a fair lot with just a sample size of 1,000. Here’s a link to the survey article. I think the response is plausible. Republicans tend toward authoritarianism, and some knee-jerk partisan Democrats are resolving cognitive dissonance by changing their mind about torture so they can continue to support their figures of worship.

  • qs

    Flag’s are symbols of the collective. We saw that lots of flag waving during Bush years led to big government.

    Same with FDR only much worse.

    So we know why the government and the politicians want people to display them.

  • Beth

    Anonymous says, “If you don’t like it, don’t buy a home or rent there.” If only it were that easy.

    In many parts of the country, homebuyers have NO CHOICE because all of the available homes come pre-burdened with private associations. Municipalities frequently require developers to create HOAs because the HOAs increase the tax base at low cost–homeowners must pay privately for road maintenance, security, etc. Developers are happy to comply because they can then squeeze more homes onto the property, leaving only little scraps of green space, aka “common area” that homeowners must pay privately to maintain, oh, and developers can also restrict homeowner behavior until most of the homes are sold.

    It’s not like a bunch of homeowners got together and said, “Hey, why don’t we form a contract so that we can restrict each other’s civil rights.” Homeowners get a choice of (a) putting up with it (b) nothing.

  • Anonymous

    the same is true in my area but the trick is to find developmenst more then 50 years old or are outlying. When you sign the contract you are agreeing to the terms, the reason behind it doesnt matter. You agreed. I didnt agree so I turned away from the new pretty houses in the densly populated greenless treeless areas and bought my home in a less convienant area and I dont have that ‘new home’ smell. People are trying to convince themselves that they have to do this but the truth is that in order to achieve the modern ‘american dream’ they are trading in their rights. You do not have to buy a home in a new development. You can chose to move elsewhere and not turn over your rights. Almost all (Im sure there are a few exceptions) neighborhoods pre 1950 do not have home owner associations that you have to comply with and there are very few new big cities since 1950

  • Jim

    Anonymous, I agree with you to the extent that I also refuse to live in a development with a homeowners’ association or any sort of restrictive covenant like that. However, Beth is also right that there are many areas of the country (hello, California), where HOAs are endemic. It’s not always easy in those areas to find a place to live, period, so the choices become difficult.

    But anyway, the point of the article wasn’t necessarily to take sides on this issue of property rights versus rights to expression, but more to notice the disconnect in the Republican arguments on this issue. If it has to do with putting up an American flag, then property rights be damned! If it has to do with putting up a clothesline, then property rights are sacrosanct! Makes me think that there are different underlying issues for the Republicans here.

    • Anonymous

      I think as long as the party holds its line on all other cases like this they are not being contradictry. I can only speak from the outside looking in. I am an American citizen but have lived around the world and am currently training as a missionary to leave the country again. The flag doesnt mean much to me. I would find it hard to imagine anyone on the capital would vote against a bill dealing with an American flag. I think this is a completly different area and there are still some interesting things about it. It was passed while 9/11 was still fresh in peoples minds and patriotic thoughts were high. The views on the war at that point were also less negative then now. There are limitations to this right as well. The HOA can still regulate the size of the flag and how it is displayed. It can also require that no lighting be used making it necessary to take it down every night (if you follow flag edicate that is). The freedom is still not 100% and thats what I found in 5 seconds if searching.

  • IC_deLight

    With respect to the Freedom to Display the American Flag Act, perhaps you should read the “limitations” section of the act which allows HOAs to put quite a few restrictions on flags. The HOA can adopt rules to enforce compliance with the Flag Code. The HOA can adopt rules as to time, place, or manner of display. What the Right to Display giveth, the Limitations taketh away. You can display a flag only at risk of violating one of the various rules that a CAI attorney will advise the board to adopt.

    Violations generate money for the private enforcers and reward the egos of the people that think their personal bubble extends onto the property of others. The private enforcers are the largely unregulated management companies and HOA attorneys who are members of the trade-lobby group known as CAI. CAI always lobbies to remove choice from the homeowners and to empower a private corporation “association” to trump the property rights of the individual owners who are involuntary members of the association. This group actively opposes the right to vote, right to run in elections, open meetings, open records, etc. This is the same organization that actively fought homeowners to prevent individual homeowners from getting away from the cable monopoly in HOA subdivisions. Homeowners needed the federal government to restrain HOA’s ability to prevent competition to cable and the legislature did that with the enactment of the 1996 Telecommunications Act.

    People don’t “choose” to be oppressed in HOAs nor are the restrictive covenants written to preserve value for anyone other than the developer (despite all the false propaganda promulgated by CAI). Every once in awhile the government steps in to prevent these “associations” from intruding too far into fundamental rights that accompany ownership. The portions of the Right to Display the American Flag Act that are often quoted may promise the world. The “Limitations” on the “Right” are rarely disclosed.

  • HOASUPRESSED

    These acts don’t go far enough to protect the rights of those living in an HOA. Our rights of Freedom of Expression are being suppressed. If a city cannot or will not force owners to paint using a specific color then how can a HOA? If you say that it is because we signed a contract, this is only partially true. The title I signed didn’t disclose that I was giving up any of my civil rights. We have a contract with our federal government to ensure our rights aren’t violated? Right. This contract over rides an HOA’s but is being overlooked when it comes to HOA’s. In Dallas two homeowners wanted the city to force owners to paint specific colors. A former council member objected saying that it infringed on her rights of Freedom of Expression. Just because she doesn’t live in an HOA it infringes on her rights but ok if it were the other way around. Why it acceptable to allow an HOA Board to infringe on one’s civil rights? Are we not American Citizens because of purchasing a home in an HOA?

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