Pushing Patriotism: Why Flag Encouragement Doesn't Fly

The federal Freedom to Display the American Flag Act of 2005 prohibits homeowners' associations (HOAs) from forbidding the display of the American flag. At least twenty states also have such laws, most of which have not been challenged in court. This article suggests that these “flag-encouragement laws” would not withstand challenges by either residents of HOAs or by HOAs themselves. HOA residents may use the state action doctrine to apply traditional First Amendment jurisprudence to these content-based laws, and HOAs may attack the laws using other precedents of the Supreme Court of the United States.