The U.S. Supreme Court continues to issue decisions impacting New Jersey municipalities. In Shurtleff v. City of Boston, 596 U. S. ____ (2022), the U.S. Supreme Court held that the city of Boston violated the First Amendment when it rejected an application to fly a Christian flag on one of city hall’s three flagpoles. According to the Court, because the city program that allowed other private groups to raise and fly their own flags did not constitute government speech, the city could not refuse to fly a particular flag because of the views that it expressed.
Facts of the Case
There are three flag poles located outside the entrance to Boston City Hall. Boston flies the American flag from the first pole and the flag of the Commonwealth of Massachusetts from the second. While Boston usually flies the city’s own flag from the third pole, the city also allows private groups to hold flag-raising events at and on the third pole “to foster diversity and build and strengthen connections among Boston’s many communities.” Over the course of twelve years, the City approved 284 such flag raisings by private organizations, with zero denials, allowing them to temporarily raise their flags on the City Hall Flag Poles for the limited duration of their events. Most of these flags were other countries’, but some were associated with groups or causes, such as the Pride Flag, a banner honoring emergency medical service workers, and others.
In 2017, Harold Shurtleff, the director of an organization called Camp Constitution, asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community; as part of that ceremony, he wished to raise what he described as the “Christian flag.” The commissioner of Boston’s Property Management Department worried that flying a religious flag at City Hall could violate the Establishment Clause and found no past instance of the city’s having raised such a flag. He therefore told Shurtleff that the group could hold an event on the plaza but could not raise their flag during it. Shurtleff and Camp Constitution (petitioners) filed suit, alleging that Boston’s refusal to let them raise their flag violated the First Amendment’s Free Speech Clause.
The District Court held that flying private groups’ flags from City Hall’s third flagpole amounted to government speech, so Boston could refuse petitioners’ request without running afoul of the First Amendment. The First Circuit affirmed. In reaching its decision, the First Circuit concluded that the City’s permission process and related restrictions for determining which third-party flags are flown from the third flagpole “demonstrate an intent antithetic to the designation of a public forum.” The First Circuit went on to find that because the City engages in government speech when it raises a third-party flag on the third flagpole at City Hall, that speech is not circumscribed by the Free Speech Clause. Accordingly, the City is “entitled” to “select the views that it wants to express.” As the First Circuit explained, this entitlement includes both the right to decide not to speak at all and the right to disassociate itself from speech of which it disapproves.
Supreme Court’s Decision
The Supreme Court reversed, holding that Boston’s flag-raising program does not express government speech. Accordingly, the city’s refusal to let the petitioners fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment.
In reaching its decision, the Supreme Court emphasized that the government must be able to decide what to say and what not to say when it states an opinion, speaks for the community, formulates policies, or implements programs. However, it also acknowledged that the boundary between government speech and private expression can blur when the government invites the people to participate in a program. In such cases, the Court conducts a “holistic inquiry” to determine whether the government intends to speak for itself or, rather, to regulate private expression.
Applying the above analysis to the case, the Supreme Court recognized that the “historical practice of flag flying at government buildings” suggested that the flag was government speech. However, it ultimately found that “the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raising as private, not government, speech…”
The Supreme Court next considered whether Boston’s refusal to allow Shurtleff and Camp Constitution to raise their flag amounted to impermissible viewpoint discrimination. As Justice Stephen Breyer explained, when the government does not speak for itself, it may not exclude private speech based on “religious viewpoint,” as doing so “constitutes impermissible viewpoint discrimination.” Good News Club v. Milford Central School, 533 U.S. 98 (2001). “Here, Boston concedes that it denied Shurtleff’s request solely because the Christian flag he asked to raise ‘promot[ed] a specific religion,’” Breyer wrote. “Under our precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause.”
For more information about the Supreme Court’s decision or how your municipality may be impacted by the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.