With the recent Orlando mass-shooting in a gay nightclub, many people from the LGBTQ community have wanted to express their solidarity with the families and victims of this horrific event. One Arizona resident, Nano Rodriguez, started flying a rainbow flag at his Tempe rental. He claims that flying the flag gave him comfort and made him feel that he could show his support to the families and victims of the mass shooting.
His landlord was less than pleased by Rodriguez’s display and asked him to take the flag down almost immediately. In a letter addressed to Rodriguez, the landlord stated:
“As stated in [the] terms of your lease…the property is to be kept clean, safe and carefully maintained. I realize this does not refer specifically to flags, so I would like to clarify. In managing this property I have a responsibility for the safety of all tenants and property. The nature of the flag you are displaying could unfortunately promote negative reactions and possibly harmful retaliation to tenants and property.”
Can the Landlord Require Flag Removal?
Most residential leases contain a term which requires the tenant maintain a clean, undamaged rental unit. A tenant who doesn’t comply with the terms of the lease may be found to have breached an essential term and can therefore be evicted if they don’t cure the defect. In other words, if the tenant is notified about a term of the lease which is breached, but does not fix the problem within a specified time period, the tenant can be evicted.
In this case, the landlord is requesting Rodriguez remove the flag because of possible negative reactions. There is no evidence that the flag has caused any mayhem or retaliatory actions by the community. Because the landlord is asking for the flag removal based on anticipated backlash instead of any evidence of actual negative response, Rodriguez should be able to continue flying his pride flag.
Does the Landlord’s Request Violate Tempe’s Anti-Discrimination Ordinance?
The City of Tempe has an anti-discrimination ordinance. The ordinance makes it illegal to discriminate against anyone on the basis of race, age, color, national origin, religion, disability, U.S. Military Veteran status, familial status, gender, sexual orientation, or gender identity. City employees from the Diversity Office investigate complaints of discrimination in employment, public accommodations, and housing. Any person claiming a violation can file a complaint within 45 days from the alleged violation, at which point the Diversity Office will investigate the claim.
Although the anti-discrimination ordinance covers discrimination in housing, it primarily protects housing providers (i.e. landlords). For this reason, it is unlikely the Tempe ordinance will provide much protection to Rodriguez as the tenant.
Landlord’s Action a Violation of Free Expression?
People often believe that a person infringes on their Constitutional right to Free Speech when the person stifles their speech. This is a misnomer.
While it’s true that the First Amendment of the U.S. Constitution guarantees freedom of expression, a person only has a cause of action if their speech is censored or restrained by a government entity. For example, a student who is told by his school that he cannot wear a black armband to protest the war has a valid free speech claim against the school. However, that same person cannot sue his parents for free speech violation if they forbid him from wearing the armband.
Because the landlord is a person, not a government entity, Rodriguez would have no claim against the landlord for violation of his right to free speech.
Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law