The First Amendment prohibits the government from infringing on a citizen’s right to free speech, but homeowners associations aren’t government entities. Their ability to censor expression is much broader. “For a constitutional violation to occur, you need a state actor,” Mr. Rovinsky said. “Yes, you do have freedom of speech, but while the government can’t infringe on that, your HOA can say you can’t put up a Black Lives Matter sign.”
Residents who have challenged HOAs have had more success arguing violations on the Fair Housing Act or the Civil Rights Act, which both prevent discrimination based on race, religion or gender. “A court would want to look for discriminatory intent,” Mr. Rovinsky said.
Mr. Pendery was told he would need to apply for approval in order to fly his flag, which he chose not to do. Instead, he filed an open-records request to see if there were irregularities in how and when his district enforced its flag guidelines. He read through 500 pages of emails from district committee members, then reached out to the American Civil Liberties Union of Colorado, who sued the district on his behalf.
“I believe it was selective enforcement,” Mr. Pendery said. “My flag was clearly so egregious that within 48 hours of me putting it up, I had a letter about it. I didn’t see that sort of expeditious action being taken against their other guidelines.”
The A.C.L.U. of Colorado won an injunction on March 4, and the district is now hammering out new language that removes the requirement that residents submit flags for approval before flying them. “I put my flag back up the same day,” Mr. Pendery said. The incident, he said, was a lesson for his children, ages 2 and 8.
“We made this case because it’s important to stand up for what you believe in, and what’s right,” he said. “The biggest thing I want them to know is that there are people who have been marginalized or taken advantage of, and you need to stand up for the little guy. You need to stand up for your family.”