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With a congressional resolution before the Legislature with the potential of labeling certain Antifa conduct domestic terrorism and deeming Antifa a domestic terrorist organization, many California tenants increasingly show solidarity by displaying signs supporting the Blue Lives Matter movement.  While Americans generally value their right to free expression, some of these signs have the potential to bring about virulent confrontation.  In these times, the display of a simple Blue Lives Matter sign can constitute an act of resistance that may generate significant landlord or neighbor pushback, including harassment and retaliation. What happens when a callous landlord demands a California tenant remove a political sign?  Must the tenant comply?  How can California tenants stave vicious landlord repression of tenant expression?  This article provides California tenants with analysis and tips related to their right to display Blue Lives Matter signs, and other political signs, in their homes.

Lease Review: California Tenants Can Display Signs Without Limitation Where Lease is Silent

A tenancy is an agreement between the landlord and the tenant.  The terms of the contract dictate what the tenant can and cannot do with their rental unit, including the right to display signs.  That agreement can be verbal or written. For tenants with oral agreements, there are no rules regarding posting political signs on the rental property.  The landlord lacks an enforcement mechanism to control the tenant’s ability to display messages or signs.  Here, tenants are free to display any political sign on the property.  The landlord may only regulate the sign to the extent it becomes a health or safety issue, nuisance, or interferes with other people’s rights.  Otherwise, the tenant has total freedom to display the Blue Lives Matter sign. Where a written lease agreement exists, it controls the tenancy.  If the written lease agreement does not restrict or limit the tenant’s ability to display a sign, the tenant is free to do so.  However, many written agreements contain provisions prohibiting the right to post signs in windows or on doors.  Where an enforceable prohibition is written into the rental agreement, the tenant could be held in violation of the lease and ultimately potentially evicted for breach for posting certain signs on the unit.  However, California law provides California tenants with arguments supporting the display of political Blue Lives Matter signs on rental property.

Do Political Signs Violate “No Alteration” Lease Provisions?

Nearly every written lease contains a “No Alterations” provision.  These provisions typically prohibit tenants from improving or changing the rental property without first obtaining landlord consent.  Although particularly aggressive landlords may argue that a tenant violates a lease agreement “No Alteration” provisions by posting a political sign, a court is unlikely to find that a non-permanent sign – typically affixed to a window with tape – constitutes an alteration requiring landlord approval.  Further, if a landlord, or their rapacious landlord attorney, files an eviction action against a tenant for displaying such a sign, the tenant can easily remove the sign pending the eviction trial’s resolution, if they do not wish to risk a trial.

Civil Code § 1940.4: California Tenants Right to Display Political Signs

In response to the vagueness of laws protecting California tenants’ freedom of expression, the California Legislature passed SB 337 in 2011, which created Civil Code section 1940.4. Although the law protects a tenant’s right to post political signs, it may not squarely cover Blue Lives Matter signs or posters due to the law’s narrowly tailored definition of protected political signs.  Further, the law does not provide an unfettered right to post political signs.  Instead, landlords may use the law’s several limitations to needle tenants into silence.  Nevertheless, California tenants may use this law in support of their right to post a Blue Lives Matter sign.

Political Signs Defined Under Civil Code § 1940.4

Under Civil Code section 1940.4, a political sign is limited to signs relating to:
  1. An election or legislative vote, including a political candidate;
  2. The initiative, referendum, or recall process; and,
  3. Issues that are before a public commission, public board, or elected local body for a vote.California Civil Code § 1940.4(a).
Since the BLM movement is composed of a patchwork of numerous local people, organizations, and groups around the world, it is a largely leaderless movement that is not animated by a goal of electing a singular political candidate to office.  Similarly, Blue Lives Matter is not explicitly tied to an initiative, referendum, recall process, or an issue facing an impending public entity vote. Considering these unique conditions, it is unclear if a Blue Lives Matter sign alone is a political sign explicitly protected by Civil Code section 1940.4.  Although arguments could exist that Blue Lives Matter signs generally relates to a set of policies and a political platform, it is unclear if a tenant can prevail on such an argument since the courts have not yet interpreted the application of the relatively new law.

Civil Code § 1940.4: A Deluge of Restrictions

In addition to containing a counterproductive definition, Civil Code section 1940.4 also carries many limitations and restrictions regulating California tenants’ right to post political signs.  These strict constraints relate to the size, location, and period of time California tenants may post political signs, and include: Complying with these restrictions can quickly become arduous for California tenants.  Further, aggressive landlords can advantageously utilize the law to sharply regulate California tenants’ right of expression, likely eventually inducing sign removal. Although Civil Code section 1940.4 is an important mechanism for protecting a tenant’s right to display explicitly covered political signs, its rigid definition, and many restrictions may stymie using the law as a shield protecting the right to display certain Blue Lives Matter signs.

California Constitutional Right to Freedom of Speech & Expression

California’s constitutional guarantee of the right of free speech, codified at Section 2 of Article I of the California Constitution, provides, “Every person may freely speak, write and publish his or her sentiments on all subject…A law may not restrain or abridge liberty of speech or press.”  California Constitution, Article I, § 2.  The California Supreme Court has long held that the California Constitution’s free speech provision is “more definitive and inclusive” than the United States Constitution’s First Amendment.  Wilson v. Superior Court, (1974) 13 Cal. 3d 652, 658.  Additionally, Californians’ free speech rights are not limited solely to government actors but also to a private person who attempts to undermine another’s free speech rights.  Gerawan Farming, Inc. v. Lyons, (2000) 24 Cal. 4th 468. In one particularly noteworthy landlord-tenant case, the California Supreme Court has strongly suggested that prohibiting a tenant from posting a general political sign might violate the California tenant’s constitutional guarantee of the right of free speech. In Golden Gateway Center v. Golden Gateway Tenants Association, (2001) 26 Cal. 4th 1013, a divided California Supreme Court upheld a landlord’s right to prevent a tenant association from distributing pamphlets under unit doors without consent.  In a concurring opinion restraint in curtailing California tenants’ free speech rights, Chief Justice George wrote, “Consider a private landlord who, under penalty of eviction, precludes his or her tenants from displaying in the windows of their apartments the campaign poster of a particular political candidate supported by the tenant—or requires the tenants to display in the windows of their homes a poster of the candidate supported by the landlord…If we were to hold, as the lead opinion broadly would, that all types of section 2(a) free speech claims require state action (or its equivalent, shown by establishing that the location where the speech is exercised is the “functional equivalent of a traditional public forum”), we effectively would remove any state constitutional obstacle to any such action by a landlord…I see no reason to prejudge the resolution of such questions.”  Golden Gateway Center v. Golden Gateway Tenants Associationat p. 1043. California tenants can assert their California constitutional right to free speech to support posting Blue Live Matters signs.  Unlike Civil Code section 1940.4, the free speech rights guaranteed by the California Constitution are not limited as to time, size, and location of political posting. Further, the right covers all forms of tenant expression, and not only a select type of political sign closely related to an election cycle.  Simply put, the California Constitution’s free speech guarantee provides broader and stronger protection. Given the complex philosophical nature of Constitutional Law, free speech disputes can, and often do, evolve beyond the initial dispute and inspire seminal case law, which helps progress society forward.  An aggressive landlord could challenge a tenant asserting their California Constitutional rights.  That is to say, the California Constitution’s free speech right may not deter an aggressive landlord from escalating a Blue Lives Matter sign dispute to eviction court or another venue. To further discourage combative landlord reaction, California tenants should also consider referencing California Civil Code section 1942.5 when relying on the California Constitution to post Blue Lives Matter signs.  California Code of Civil Procedure section 1942.5 prohibits landlords from retaliating against a tenant for exercising, “any rights under law.”  California Civil Code § 1942.5(d).  When coupled with the Section 2 of Article I of the California Constitution, California Civil Code section 1942.5 can be a powerful tool in fighting landlord harassment following the tenant exerting their right to post a Blue Lives Matter.  California landlords that violate Civil Code section 1942.5 become liable for actual damages sustained by the tenant, punitive damages in an amount up to $2,000, and the tenant’s attorney fees in an eviction action.  California Civil Code § 1942.5.  When taken together, the California Constitution’s free speech guarantee, and Civil Code section 1942.5 will likely make regressive landlords think twice before demanding tenants refrain from self expression.

California Tenants Blue Lives MatterMobile Home Tenants Can Display Blue Lives Matter Signs in Windows

Even where a mobile home tenant’s written lease agreement contains a prohibition against signs in windows, the mobile home tenant is free to post any political sign in their mobile home window.  California mobile home tenants enjoy greater protections here, and landlords and park owners may not restrict a California mobile home tenant from posting a political sign by rental agreement, park rule, or park regulation.  74 Ops. Cal. Atty. Gen. 122 (1991). To read our article about Black Lives Matter Signs, please click here. To read our article about Pride Flags and LGBTQ Signs, please click here. To read our article about Juneteenth Signs, please click here. To join the SFPD, please click here.