Written by Gregor I. McGregor, Esq.
In the case of Shurtleff v. City of Boston, (May 2, 2022), the U.S. Supreme Court held that the City of Boston’s flag-raising program did not constitute government speech. Consequently, the City’s refusal to allow the petitioners to fly their flag because of its religious viewpoint violated the Free Speech Clause of the First Amendment to the US Constitution. Let’s see how this regulatory analysis works.
The facts are important to the result. The result hangs on whether and when a governmental entity engages in government speech (which can be highly regulated) and when it does not engage in government speech.
Justice Breyer delivered the opinion, in which all members of the Court joined or concurred. The decision is important, even if out of proportion to the stakes for one flag at Boston City Hall. It affects governmental flag-flying policies and practices, as well as management of Free Speech and Expression generally, as to controls of all kinds of signs, posters, flyers, forums, programs, exhibitions, announcements, and (nowadays) government sponsored social media posts.
On three flagpoles outside Boston City Hall, Boston flies the American flag, the flag of the Commonwealth of Massachusetts, and usually the City’s own flag. Boston for years allowed groups to hold ceremonies on City Hall Plaza, during which participants may hoist a flag of their choosing in place of the City’s flag. Boston regulated the content of the flags not at all.
Between 2005 and 2017, Boston approved the raising of about 50 unique flags for 284 such ceremonies. Most of these flags were other nations’, some were associated with groups or causes, such as the Pride Flag, and others.
The Plaintiff asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community. He wished to raise what he described as the “Christian flag.”
Worried that flying a religious flag at City Hall could violate the First Amendment’s Establishment Clause, and never having flown such flag, the City of Boston told the Plaintiff no. The Plaintiff sued, claiming Boston’s refusal to let him raise his flag violated the Free Speech Clause.
The Federal District Court held that flying private groups’ flags from City Hall’s third flagpole amounted to government speech, so Boston legally could refuse petitioners’ request without running afoul of the First Amendment. The First Circuit Court of Appeals affirmed and the City was pleased.
The Supreme Court then granted certiorari to decide whether the flags Boston allows others to fly express government speech, and whether Boston could, consistent with the Free Speech Clause, deny the Plaintiff’s flag-raising request.
The decision was long-awaited among government officials, civil rights advocates, and of course the property managers, agency staffers, and event sponsors who actually process applications for events and messages.
The Supreme Court acknowledged that the Free Speech Clause does not prevent the government from declining to express a view, citing the leading case of Pleasant Grove City v. Summum, 555 U. S. 460 (2009). It is firmly established that 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.
The Court then cautioned, though, that the boundary between government speech and private expression can blur when, as here, the government invites the people to participate in a program.
In those situations, the Court said it conducts a holistic inquiry to determine whether the government intends to speak for itself or, rather, to regulate private expression. This begs the question, what are the facts and factors for such an “holistic inquiry.”
The Court’s cases over the years have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.
Considering these indicia, the Court has dealt with permanent monuments in a public park (government speech, even for monuments privately funded and donated); license plate designs proposed by private groups (government speech since, among other reasons, the state maintained direct control over the messages conveyed); and trademarking words or symbols for private registrants (NOT government speech as the Patent and Trademark Office did not exercise sufficient control over the nature and content).
Applying these factors to Boston’s flag-flying, the Court was ambivalent, stating that the history of flag flying, particularly at the seat of government, supports Boston. However, on the 20 or so times a year when Boston allowed private groups to raise their own flags, did those flags express the City’s message?
On the one hand, the Court stated that flags evolved as a way to symbolize communities and governments. Not just the content of a flag, but also its presence and position have long conveyed important messages about government. Flying a flag other than a government’s own can convey a governmental message.
On the other hand, the Court stated that the circumstantial evidence of the public’s perception did not resolve the issue.
The Court concluded that the key issue is whether Boston shaped or controlled the flags’ content and meaning, as such evidence would tend to show that Boston intended to convey the flags’ messages as its own. And on that critical issue, the Court found, Boston’s record was thin with respect to the way in which the flag policy has been administered.
Specifically, the Court pointed out that Boston told the public that it sought “to accommodate all applicants” who wished to hold events at Boston’s “public forums,” including on City Hall Plaza; the City’s application form asked only for contact information and a brief description of the event, with proposed dates and times; the City did not request to see flags before the events; the City’s practice was to approve flag raisings without exception—until the Plaintiff’s request; and the City had no written policies or clear internal guidance about what flags groups could fly and what those flags would communicate.
As a result, on balance the Court ruled that Boston’s control is not comparable to the degree of government involvement in the selection of park monuments or license plate designs. “Boston’s come-one-come-all practice—except, that is, for petitioners’ flag—is much closer to the Patent and Trademark Office’s policy of registering all manner of trademarks…. All told, Boston’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads the Court to classify the third-party flag raisings as private, not government speech.”
That being so, the Supreme Court reversed the lower courts and ruled against the City of Boston. When the government does not speak for itself, it may not exclude private speech based on “religious viewpoint”; doing so “constitutes impermissible viewpoint discrimination.” In light of the Court’s government-speech holding, Boston’s refusal to allow the Plaintiff to raise his flag because of its religious viewpoint violated the Free Speech Clause.
While the decision about one flag is interesting to federal, state, county, and municipal property managers, event sponsors, parade managers, and government attorneys, and those who track evolving Supreme Court law and attitudes about Free Speech and Expression under the First Amendment, the unanimity of the ruling adds to the impact.
The fallout is yet to be felt, as the case is recent, but initial indications are that many governments are reviewing their flag, sign, message, and comment-posting policies (if indeed they have any). Some are getting out of the business of allowing too much private expression by signage on public properties, while others are allowing more free-flowing expression with a hands-off attitude. Yet all are becoming mindful of the rightful controls that are attendant to what is properly classified as government speech.
Mind the gap.