What are the rules about allowing political signs in your yards? Can my Homeowner’s Association override my First Amendment freedom of speech?

We asked the City’s Corporate Counsel to help usdissect this issue as it seems to come up every year … just before the election.
The First Amendment provides citizens with broad freedoms of speech and expression rights. These rights apply to yard signs, with a few exceptions (for example child pornography, obscenity, fraudulent statements of fact, etc.) However, specific rules apply depending upon where yard signs are placed and who is restricting their use.

On public property, a municipality can prohibit all signs, place content-neutral “time, place and manner” restrictions on signs or require a permit to place or post a sign. The only exception is for public property that constitutes a “traditional public forum,” like streets and parks, where sign restrictions are subject to “strict scrutiny,” and must be precise, serve a “compelling state interest” and be “narrowly tailored” to do so.

“…specific rules apply depending upon where yard signs are placed and who is restricting their use.”

On private property, a municipality cannot prohibit signs. However, in a content-neutral manner, it can place reasonable “time, place, and manner” restrictions on their size, shape, height, spacing, illumination, and composition, as well as on their location to the extent they interfere with public safety.

The City of Carmel prohibits, by ordinance, the posting of any sign (except traffic signs) on any public property or right-of-way (City Code § 6-54). It also places “time, place, and manner” restrictions on signs located on private property through the sign standards contained in the City’s Unified Development Ordinance (§ 5.39).

However, under state law Indiana Code § 36-1-3-11, which trumps our ordinance, the City cannot regulate the number or size of yard signs that a homeowner places on his/her private property beginning 60 days before an election and extending five days after the election, so long as the signs have a surface area of no greater than 32 square feet (each) and do not endanger public safety, e.g., by obscuring motorist sight lines. The City can continue to remove yard signs from public property and rights-of-way in a content-neutral manner.

Unlike the City, a HOA is not a governmental unit, and the First Amendment, by itself, does not stop it from restricting political yard signs. As a party to a HOA agreement, a homeowner is contractually obligated to adhere to his/her HOA’s rules.

However, a HOA must still obey state laws that govern its operation. In this regard, Indiana Code §§ 32-21-13-5, 6, & 7 prohibit a HOA from enforcing a rule prohibiting the display of political yard signs within 30 days before and extending until five days after an election, except for political yard signs bigger than “typical” (undefined) election yard signs, political yard signs that exceed a “reasonable” (undefined) number, and political yard signs that are displayed off a homeowner’s private property.

Neither the City of Carmel, nor any HOA can regulate political yard signs on private property, subject to the exceptions set forth above, until November 9th.

Authored by Laura Campbell, Sue Finkam, Kevin Rider, Jeff Worrell, Tim Hannon, Bruce Kimball, Miles Nelson, Anthony Green and Adam Aasen.