"Should people lose their right to freedom of expression simply because they rent their property? The answer is no. Any discrimination that prevents freedom of expression, based on whether or not you own property is a denial of rights that belong to all people." That’s what California State Senator Christine Kehoe said in advocating her bill, Senate Bill 337, during the recent session of the California Legislature. The aim of SB 337 was to prevent landlords from forbidding their tenants to post political signs on the property that they rent.
It is not unreasonable to ask, "Did we need a bill like this? Don’t tenants have first amendment rights just like everyone else? They couldn’t be prohibited from exercising those rights anyway, could they?"
Well… it’s a bit more complicated than one might have thought. It is certainly not a slam-dunk First Amendment argument. In both the Senate and Assembly bill analyses it is noted that the First Amendment prohibits government from abridging the freedom of speech. Thus neither cities, counties, states, nor the federal government may enact laws that would do so. But it is not clear that the First Amendment prohibits private enterprises - such as a homeowner association - or individuals - such as a landlord - from restricting someone’s freedom of expression. That would require additional legislation.
Thus it is that the California Legislature has previously enacted statutes providing that the governing documents (such as CC&Rs) of a common interest development (e.g. condominiums) cannot prohibit unit owners from posting "noncommercial signs, posters, flags, or banners on or in their individual properties, except as required for the protection of public health or safety or if the posting would violate a local, state, or federal law." And, just as free speech is judicially recognized as having limits (the old "fire"-in-the-theater argument), the California law allows for limits on the size and material of such signs.
California also has specific legislation providing that mobile home parks cannot prohibit unit owners from displaying political signs - again, subject to specified limitations.
But, until this year, there was no law specifically addressing the ability of tenants to display such signs.
When SB 337 was first introduced it had a wider scope than the version that was finally adopted. Similar to the common-interest development law, it would have given tenants the right to display noncommercial signs. After amendments, though, the bill addressed only political signs. As a tenant, then, I could post a sign advocating the election of a green party candidate, but not a sign encouraging the consumption of broccoli.
SB 337 contains other limitations as well. Signs cannot be more than six square feet, nor may they violate any law, or, if in a common-interest development, may they violate any lawful rule. They must relate to a specific election, referendum, recall, or issue before a public body (e.g. school board) that will be up for a vote. Thus, they cannot be generally political. A sign that said "Defy Authority" would not be protected.
Finally, signs covered by SB 337 are subject to time limits as set by local ordinance, or no more than 90 days before and 15 days after the election or vote. You couldn’t put up a sign in January advocating a political outcome in the November election.
Who could possibly have been opposed to SB 337? Opponents included the California Association of Realtors®, the California Apartment Association, and many local apartment associations. Among the arguments they put forth: "rental property owners and managers must have the unfettered flexibility to judge what may or may not be suitable conduct by one resident if it has the prospect of affecting the quiet enjoyment of other residents in rental housing." It doesn’t take a lot of imagination to think of some political signs that could really generate disharmony in an apartment complex.
Be that as it may, SB 337 passed both the State Assembly and Senate and was signed by the Governor on Sept. 30, 2011. Its effects will certainly be seen in 2012.