The Supreme Court will once again turn its attention to free speech and religious freedom protections this week in a case that asks whether a Christian group’s flag should fly over Boston’s city hall.
Shurtleff v. Boston, which the justices will hear Tuesday morning, stems from the city’s refusal to raise the group’s flag five years ago, a decision that broke a 12-year streak of approved flag raising requests. From 2005 to 2017, officials raised flags honoring everything from gay pride to Argentinian heritage.
The Christian group, called Camp Constitution, argues that the city is guilty of religious discrimination. Boston officials cannot provide a flagpole for public use and then decline to share it with people of faith, the organization says.
Boston leaders, on the other hand, say the flagpole was never a public forum open to all comers. They claim the city was only raising flags with messages it wanted to promote, noting that Camp Constitution’s flag, which features a red cross on a white and blue background, didn’t fit the bill.
“All of the flags the City flew met with the city’s policies, including that the city would refrain from speaking about religion,” officials argue in a Supreme Court brief.
Shurtleff v. Boston raises by now familiar questions about religion’s place in the public square. But unlike in other recent court battles involving First Amendment claims, more liberal religious and civil rights groups do not see eye-to-eye on how the court should rule.
Instead, the ACLU, as well as the Biden administration, has filed a brief in support of Camp Constitution. Like a variety of more conservative religious freedom organizations, it’s arguing that Boston can raise a Christian group’s flag without violating the Constitution.
“The city (cannot) designate its flagpole a public forum for private speech and then deny access to an otherwise eligible speaker based on viewpoint,” the ACLU’s brief said.
The central question in the case is whether Boston’s willingness to fly some nongovernmental flags outside city hall turned its flag pole into a public forum. If it did, then the city’s efforts to block a Christian group from participating in this forum would amount to religious discrimination, as the Biden administration pointed out in its brief to the Supreme Court.
“This court has long held that denying access to an otherwise-available forum simply because of the religious nature of the speech is viewpoint discrimination,” the brief said.
But if, as Boston officials contend, the flags on the city’s flag poles are a form of government speech, then the city was right to avoid raising a faith group’s flag and, in that way, conveying a religious message.
“While the area around (the) flagpoles is indeed maintained as a public forum, open to all comers, the flagpoles themselves are not,” argued Boston officials in their latest Supreme Court brief.
In the lower courts, Boston’s argument won out. Both the district court and the 1st U.S. Circuit Court of Appeals said the flag pole was not a public forum and that city officials could therefore limit what flags were flown and what messages were shared.
But in September, the Supreme Court agreed to take up the case and clarify what counts as government speech. If you revisit the justices’ rulings in similar cases from recent years, it’s no surprise that further clarification is needed, noted Adam Liptak in his analysis of Shurtleff v. Boston for The New York Times.
“In previous cases, the Supreme Court has sometimes struggled to distinguish the government’s speech from private speech in a public forum,” he wrote.
Past rulings on government speech
In 2009, the court issued a near-unanimous opinion describing permanent monuments in a public park as a form of government speech. The decision enabled officials in Pleasant Grove, Utah, to reject a monument honoring a little-known religion.
In 2015, five of the justices drew on that 2009 ruling to decide that specialty license plates also count as government speech. Writing for the majority, Justice Stephen Breyer argued that Texas officials did not violate citizens’ free speech rights when they refused to print a plate featuring the Confederate flag.
“A person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message. If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate,” Breyer wrote. Justice Clarence Thomas was the only conservative to sign on to his opinion.
Justice Samuel Alito, who opposed the ruling, claimed the majority had misinterpreted the 2009 decision. When considering what counts as government speech, you must focus on factors like historical precedent and spatial limitations, he said.
“The contrast between the history of public monuments, which have been used to convey government messages for centuries, and the Texas license plate program could not be starker,” he wrote.
In 2017, Alito was back in the majority in a case that dealt with trademark registration. The court unanimously ruled that Americans are free to trademark even potentially offensive names, since trademarks are not a form of government speech.
“If the federal registration of a trademark makes the mark government speech, the federal government is babbling prodigiously and incoherently,” wrote Alito in the majority opinion, emphasizing the amount of messages being shared.
How will the court rule?
If you follow Alito’s approach to government speech, then sorting out Shurtleff v. Boston comes down to answering a few key questions: Do members of the public associate flag poles with government speech? Has the government used flags to convey its messages in the past? Is there room on a flag pole to express a wide variety of viewpoints?
Although these questions may seem straightforward, it’s possible to respond to each of in a number of ways, as the briefs filed in the case illustrate. For example, answers to the third question differed depending on whether peopled focused on how many flags could be displayed at one time or how many flags could be displayed over the course of a year.
In their briefs, the organizations and officials who support Boston’s position believe it’s reasonable — and very common — to see flags as government speech. The city was right to keep the Christian flag off its pole, they say.
“There can be little serious doubt that the tens of thousands of people who cross City Hall Plaza on a typical day would reasonably understand that a flag flying from Boston’s 83-foot-tall flagpole in front of the seat of government and next to the U.S. and Massachusetts flags is there because it conveys something Boston wants to communicate,” argued the Anti-Defamation League in its brief.
In light of this common belief, the Supreme Court should ensure that Boston officials can limit what messages are shared on its property, the leagued explained. If it doesn’t, antisemitic, white nationalist and other extremist groups will take full advantage of people’s assumptions about City Hall flag poles.
“The value to such groups of the “photo op” of a Nazi flag, the Confederate flag, or some other white supremacist banner flying over Boston City Hall should not be underestimated,” the brief from the Anti-Defamation League said.
Groups that oppose Boston’s position agreed that a ruling in favor of the Christian organization could lead to such an outcome. But protecting free speech requires protecting even those who hold opinions you detest, wrote the ACLU in its brief.
“We don’t agree with Camp Constitution’s views,” said David Cole, the ACLU’s national legal director, to the Times. “But we defend its right to express them.”
If there are Boston residents who also don’t like the message being conveyed by the Christian group’s flag, then they can register for time to share messages they do support, as Cole and other ACLU leaders noted in their brief.
“The city is plainly capable of accommodating temporary flag displays by myriad private parties — as confirmed by its consistent record (before this case) of accepting hundreds of requests without denying a single one,” the brief said.
The Supreme Court’s decision in the case is expected by the end of June.