To Chairman Ray, Vice Chair Fischer, Ranking Member Brent, and members of the House General Government Committee, thank you for this opportunity to provide proponent on House Bill 16.
HB 16 is not a complex bill. As you know, this legislation would allow people to display political yard signs on their private, residential property when that property is otherwise subject to regulation by a homeowners association or similar entity.
While the ACLU of Ohio typically involves itself in matters where there is a clear government actor regulating or restricting constitutional rights, that dynamic is largely absent from these situations because HOAs and similar bodies are private actors, not government ones. So, the First Amendment does not apply here.
However, across the country and throughout Ohio, the ACLU has involved itself in other matters of free expression when there is no, or little, government involvement. Over the decades, such examples include movie ratings, book and music censorship and suppression, speech and expression via social media, and other speech via the internet. As with those examples and others, the ACLU of Ohio supports HB 16 because of its overall goal of protecting speech.
That said, we also believe HB 16 can and should be improved. It is clear via its language the intention of HB 16 is to incorporate First Amendment standards into the Revised Code in this context. But it falls short in that regard.
That is, as currently written, HB 16 explains this legislation is not meant to conflict with “any other state or federal law, local ordinance or resolution, or a proclamation by the governor.” Given our own experiences in litigating and pursuing local ordinances aimed at the regulation of political yard signs, the ACLU of Ohio is concerned about the likelihood there remains outdated and unconstitutional local laws, still on the books, across the state.
So, should a conflict arise between a property owner and an HOA or similar entity, and that HOA/similar entity conducts a review of the local laws applicable to their area and location, they could be unwittingly relying on an unconstitutional ordinance to defend their restrictions.
In addition, HB 16 contains language authorizing HOAs and similar entities to “reasonably restrict” such things as the time and location signs can be placed, their number and size, and the manner which they are placed. Reasonable time, place, and manner restrictions are a core part of First Amendment jurisprudence. But, HB 16 does not bind HOAs and related entities to First Amendment case law. The concern here is whatever “reasonable restrictions” an HOA implements could be significantly different than what is otherwise allowed, or not allowed, by purely government actors under the First Amendment.
However, we believe these problems can be largely solved by amending HB 16 to make clear HOAs and related entities must also abide by current First Amendment jurisprudence with regard to the regulation of yard signs on one’s property, even though HOAs and these entities are not otherwise bound to the First Amendment. This change would be in the spirit of HB 16’s goal to apply free speech principles to the situations this bill addresses.
In closing, the ACLU of Ohio encourages this committee’s support of House Bill 16 with the caveat it should, and needs to be, improved in order to fully accomplish this bill’s goals.
