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The Balance in Display of Patriotism and Political Support Under Wisconsin Condominium Law

With the Spring 2020 Presidential Primary and election for various state court judges looming on the horizon, many of Wisconsin’s condominium associations are proactively deciding on how to delicately navigate and employ rules regarding unit owner rights with respect to displaying American flags and political campaign signs. Naturally, the close-quarters of condominium living presents a different set of circumstances unlike single family homeowners who are free to scatter an unlimited amount of political signs and flags about their property with impunity. The very concept of a condominium is grounded in shared space and shared cost; and while one unit owner’s patriotism or unwavering support for a particular political candidate may be viewed as noble, another unit owner may view the same support as distasteful or even offensive.

At first glance options may seem limited in regard to adopting rules that regulate the touchy subject of individual unit owner First Amendment rights.  In actuality, legislation exists that legally gives an Association the right to regulate the manner of how unit owners display political and patriotic support—to an extent.  In order to adopt rules that are not too restrictive, Association board members need to keep a few basic overall concepts in mind.

First, the Association may not adopt any bylaws or rules which prevent unit owners from “respectfully displaying the United States flag.” See Wis. Stat. § 703.105(1)  In other words, generally, a unit owner maintains the freedom to exercise respectful patriotism; presumably because owning a condominium unit in Wisconsin places all unit owners on common ground—the units are located within the United States regardless of an individual’s personal feelings regarding this country.  Nevertheless, the Association maintains a degree of control, and is free to adopt bylaws or rules that regulate “the size and location of signs, flags and flagpoles.” See § 703.105(2).

Next, when political opinion is the driving force behind a display, the law is a bit more restrictive. Interestingly, section 703.105(1m) precludes the adoption of bylaws or rules that impede “a unit owner from displaying in his or her condominium a sign that supports or opposes a candidate for public office or a referendum question [ ]” (emphasis added).  Stated differently, the law prohibits an Association from interfering with a unit owner’s display of political beliefs which are not in any way visible from the outside of the unit.  On the other hand, the statute is silent as to requirements for posting political signs on the outside of a condominium unit.  The statute’s lack of addressing whether unit owners maintain freedom to post political campaign-related signs on the outside of condominium units, or signs that are visible from the inside of units, presumably leaves an Association with the discretion to allow the practice under controlled circumstances; as section 703.105(2) instructs that “controlled circumstances” include regulation of the size and placement of such political signs.

Takeaway: Wis. Stat. § 703.105 was crafted to strike a balance by simultaneously protecting unit owner rights, while preventing Association property from becoming a billboard for political propaganda.  As a result, Association boards should proceed with caution when looking to curtail perceived excessive “wall-papering” of condominium units by extraordinarily patriotic or hyper-political owners.  This is because Wisconsin unquestionably has enacted law to protect unit owner First Amendment rights—specifically in this context.

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