Can a Michigan Condominium or Homeowners Association Ban a Thin Blue Line Flag?
Although the history of the term “thin blue line” can be traced back to the mid-1800s, the term gained national popularity in the 1950s through Los Angeles Police Chief Bill Parker’s statement that the Los Angeles Police Department was the thin blue line that acted as a barrier between law and order on one side and civil anarchy on the other side. In recent years, the thin blue line has become a symbol used to show support for police departments and officers. Its supporters may fly a thin blue line flag, which is styled after the American flag but replaces the red stripes with black stripes, the blue field with a black field, and includes a blue stripe.
But many groups oppose the thin blue line sentiment and the flag, viewing it as a symbol that opposes the racial justice movement and supports white supremacy. Rightly or wrongly, the thin blue line flag is a source of controversy and conflict: the Los Angeles Police Department has banned the thin blue line flag from all public events, station lobbies, police uniforms, and police vehicles; protestors burned a thin blue line flag outside the Capitol in Salt Lake City, Utah; and appeared at the protest in Charlottesville, Virginia protests in 2017 alongside Confederate flags.
To avoid the controversy and conflict that may arise when an owner displays a thin blue line flag on their unit or the common elements, a condominium association or homeowners association may decide to act preemptively by banning owners from displaying a thin blue line flag. Owners may feel that the association is overstepping its authority under the governing documents or acting illegally by prohibiting the display of thin blue line flags. Can a condominium association or homeowners association ban thin blue line flags from being displayed?
Statutory Restrictions for Flags
A condominium can seek to prohibit or restrict a co-owner from displaying a thin blue line flag on their unit or the common elements if the condominium bylaws prohibit flags in general. Although an exception exists under Section 156a of the Michigan Condominium Act, MCL 559.156a, which prohibits a condominium association from restricting a co-owner’s display of “a single United States flag of a size not greater than 3 feet by 5 feet anywhere on the exterior of the co-owner’s condominium unit.” Although a co-owner may attempt to argue that a thin blue line flag is a flag of the United States, this argument likely would not fly (excuse the pun).
Title 4, Section 1 of the United States Code, 4 USC § 1, states as follows, “The flag of the United States shall be thirteen horizontal stripes, alternate red and white; and the union of the flag shall be forty-eight stars, white in a blue field.” After Hawaii was added to the Union, Executive Order 10834 was adopted that increased the number of stars in the United States flag to 50 stars. A picture of the United States flag was contained in the Executive Order to depict the design of the United States flag:
A thin blue line flag does not meet the definition of a United States flag under 4 USC § 1, as the thin blue line flag has black stripes instead of red stripes, a black field instead of a blue field, and contains a blue stripe. Moreover, companies that sell a thin blue line flag market these flags as “Thin Blue Line American Flags,” as opposed to United States flags. Accordingly, MCL 559.156a likely would not affect a condominium association’s ability to prohibit or restrict co-owners from displaying a thin blue line flag.
Although the Michigan Condominium Act does not apply to homeowners associations, the Freedom to Display the American Flag Act of 2005, 4 USC § 5, prohibits community associations from “adopt[ing] or enforc[ing] any policy, or enter[ing] 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 . . .” As discussed above, a thin blue line flag is not a United States flag, and the Freedom to Display the American Flag Act of 2005 would not prevent a homeowners association from banning or restricting an owner’s ability to display a thin blue line flag.
Outside of Michigan, however, states have adopted or are considering laws that make it illegal for condominium associations and homeowners associations to ban or restrict owners from displaying a thin blue line flag. On June 6, 2022, the Arizona Governor signed a law that prevents a condominium association from prohibiting the display of a first responder flag. Ariz. Rev. Stat. § 33-1261(A)(6). In Ohio, House Bill 100 has been introduced that, if signed into law, would prohibit condominium associations and homeowners associations from restricting owners from displaying a thin blue line flag. The Bills’ proponents expect it to “pass with flying colors by the end of this year’s General Assembly.” But unless and until similar laws are enacted in Michigan, condominium associations and homeowners associations are not prohibited by statute to ban or restrict an owner’s display of the thin blue line flag.
Prohibiting Flags in the Bylaws and Free Speech Concerns
It is not unusual for an association’s bylaws or restrictions to prohibit owners from displaying any flag on the unit or the common elements. When it comes to political flags, owners may feel that they have an unfettered right to display political flags under the free speech protections in the United States Constitution and the Michigan Constitution.
The First Amendment to the U.S. Constitution states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. [US Const, Am I.]
The Michigan Constitution similarly states:
Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right, and no law shall be enacted to restrain or abridge the liberty of speech or of the press. [Const 1963, art I, § 5.]
Crucially, the U.S. Constitution and Michigan Constitution apply only to state action, not to private conduct. In Prysak v RI Polk Co, 193 Mich App 1, 10; 483 NW2d 629 (1992) (citations omitted), the Michigan Court of Appeals stated that “the federal and the Michigan constitutional provisions guaranteeing free speech do not extend to private conduct, but have been limited to protections against state action.” Therefore, an owner’s argument that an association’s ban on political flags, including thin blue line flags, is an unconstitutional limitation on free speech would most likely be unsuccessful.
In a case filed in Oakland County Circuit Court, our office was successful in representing a condominium association in its efforts to require a co-owner to remove two political flag: one flag with “TRUMP Make America Great Again” and a second flag with the stars and stripes of a United States flag with “TRUMP” written across it in yellow. Although the co-owner did not raise a free-speech argument in court, the judge determined that the co-owner violated the bylaws by displaying the flags without the association’s approval.
Although there are no cases in Michigan directly addressing free speech in the context of thin blue line flags, a federal court in Ohio has considered this issue directly. In Swantack v New Albany Park Condo Ass’n Bd of Directors, No. 2:22cv2130, 2022 WL 17600518 (S.D. Ohio Dec. 13, 2022), the Swantacks flew a thin blue line flag from the front porch of their condominium unit, which the condominium association demanded that they remove because it was not approved (it is unclear what the exact provision in the bylaws or rules and regulations prohibited). The association fined the Swantacks three times before they removed the flag. The Swantacks then filed a lawsuit against the association, alleging that the association violated their First Amendment right to free speech.
The court began its analysis by stating that for the Swantacks’ argument to be successful, “the alleged deprivation of their First Amendment rights must have been caused by state action.” Using a theory that the condominium association’s action was attributable to the state as a public function, they argued that the association’s “conduct was state action because they could not have acted as they did in the absence of state law.” The court reviewed the facts and determined that the association, by running a condominium, was not performing a public function that was traditionally or exclusively reserved to the state. Moreover, the association did not use any of the state’s procedures to enforce their bylaws. Accordingly, the court implicitly determined that the condominium association’s requirement that the Swantacks remove their thin blue line flag did not violate their Constitutional right to free speech and dismissed the lawsuit.
A condominium association and homeowners association has the authority to ban or restrict an owner from displaying a thin blue line flag on their unit or the common elements in accordance with the governing documents. Although an owner may disagree with this approach and feel that their First Amendment right to free speech is being violated, this type of argument most likely will be unsuccessful in Michigan. But associations should be aware that states are moving forward with legislation that could affect their ability to ban or restrict the display of a thin blue line flag. If a condominium association or homeowners association is concerned about the possible repercussions about banning or restricting thin blue line flags, or have a question about whether they are able to regulate the display of flags generally, they should contact an experienced community association attorney.
Michael T. Pereira is an attorney with Hirzel Law, PLC, and focuses his practice on community association law and drafting, reviewing, and amending governing documents. Mr. Pereira received his Bachelor of Arts in Political Science from the University of Michigan and his Juris Doctor degree from the University of Detroit Mercy School of Law, where he graduated second in his class. After law school, Mr. Pereira worked as a research attorney and law clerk at the Michigan Court of Appeals before joining Hirzel Law, PLC. Mr. Pereira can be reached at (248) 986-2290 or firstname.lastname@example.org.