On July 24, 2006, President Bush signed HR42, the Freedom to Display the American Flag Act of 2005. This Act limits the ability of community associations to prohibit members from displaying the U.S. flag on the member’s unit, lot or exclusive use or possession area. The law states that community associations:

may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.

However, community associations are permitted to regulate the display of the U.S. flag. First, the law does not protect the flying or displaying of the flag in a manner inconsistent with federal law relating to the flag. Some of the provisions of the federal law relating to flags include:
  • 4 U.S.C. §6(a) provides that the U.S. flag be flown from sunrise to sunset unless properly illuminated during the hours of darkness.
  • 4 U.S.C. §6(c) provides that the flag should not be displayed on days when the weather is inclement unless an all-weather flag is used.
  • 4 U.S.C. §7(c) provides that no flag should be displayed higher than the U.S. flag (if on the same level, it should not be placed to the right of the U.S. flag). It also provides that no other national or international flag should be displayed in a position of superior prominence or honor to the U.S. flag.
  • 4 U.S.C. §8(a) provides that the U.S. flag should never be displayed with the union down.
  • 4 U.S.C. §8(c) provides that the flag should never touch anything beneath it, such as the ground, the floor, water, or merchandise.
  • 4 U.S.C. §8(e) provides that the flag should never be displayed in such a manner as to permit it to be easily torn, soiled, or damaged in any way
  • 4 U.S.C. §8(g) & (i) provides that the flag should not have any marks, insignias, designs or pictures on it or be used for advertising purposes.
  • 4 U.S.C. §8(k) provides that the flag should not be displayed, but properly destroyed if it is no longer a fitting emblem for display.

Therefore, community associations can require that members comply with these federal laws relating to display of the flag. For instance, this means that an association could regulate the appearance of the flag.

In addition, the law permits community associations to establish reasonable time, place, or manner restrictions necessary to protect a substantial interest of the association. There is a fair body of law (primarily in free speech cases) about what constitutes reasonable time, place and manner restrictions. It is likely that an association could establish appropriate times for the display of the flag, appropriate locations, and size limitations as reasonable time, place and manner restrictions. Community associations will need to adopt rules in order to regulate the display of flags.