New York Zoning and Municipal Law Blog
On May 2. 2022, the U.S. Supreme Court ruled on the refusal of the City of Boston to permit the flying of a Christian flag, on a flag pole located at Boston’s City Hall Plaza. In Shurtleff v City of Boston Massachusetts, the Court ruled that the City had violated the First Amendment right of free speech in denying permission to fly the flag at issue.
The Boston City Hall Plaza has been used for various public events and the City has acknowledged the space is a “public forum”. The Plaza contains three flag poles, one flying the American Flag, one flying the flag of the Commonwealth of Massachusetts and the third either flying the Boston Flag or, with permission from the City, the flag of a group holding a ceremony in the plaza. Between 2005 and 2017, 284 ceremonies, flying 50 different flags were held in the Plaza.
“Most ceremonies have involved the flags of other countries—from Albania to Venezuela—marking the national holidays of Bostonians’ many countries of origin. But several flag raisings have been associated with other kinds of groups or causes, such as Pride Week, emergency medical service workers, and a community bank”
In 2017, Schurtleff, the director of a group known as Camp Constitution, asked to hold a flag raising during an event that would “commemorate the civic and social contributions of the Christian community”. The flag would be a “Christian” flag. The City commissioner requested a description of the flag. After reviewing the description, he stated he felt raising the flag would violate the Establishment Clause of the Constitution. Therefore, he proposed that they hold the event but use a different flag.
This action was commenced in District Court, claiming, among other things, a violation of the First Amendment right to free speech, in denying use of the proposed flag. The District Court held flying the flag at City Hall amounted to government speech and therefore the denial was within the city’s constitutional authority. The First Circuit affirmed.
The Supreme Court noted the “…first and basic question we must answer is whether Boston’s flag-raising program constitutes government speech. If so, Boston may refuse flags based on viewpoint.” The opinion of the Court stated that government may state or decline to state viewpoints under the first Amendment. The issue becomes the line between government speech and private expression. “Applying the government-speech analysis to this record, we find that some evidence favors Boston, and other evidence favors Shurtleff.”
The Court then discussed the history and symbolism of flags, as well as where and when they are flown. “Keeping with this tradition, flags on Boston’s City Hall Plaza usually convey the city’s messages. On a typical day, the American flag, the Massachusetts flag, and the City of Boston’s flag wave from three flagpoles. Boston’s flag, when flying there at full mast, symbolizes the city. When flying at half staff, it conveys a community message of sympathy or somber remembrance. When displayed at other public buildings, it marks the mayor’s presence.”
The Court then notes, while the history of flags discussed in the opinion would tend to favor the position of Boston, this only begins the inquiry. Boston allowed its flag to be lowered in order to allow other flag ceremonies. “Thus, even if the public would ordinarily associate a flag’s message with Boston, that is not necessarily true for the flags at issue here.”
The Court noted, the issue is the extent to which Boston controlled the content of the flags flown during the various ceremonies it permitted. The Court concluded on that issue “…Boston’s record is thin.” Boston argued raising flags of other countries and for such events as Pride Week reflected the City’s support of the heritage of its population and diversity. Yet, the Court notes that it is difficult to see a connection to the City for display of such flags as that of the local bank, the Metro Credit Union. Further, the record demonstrates that the City indicated an intent to accommodate all applicants. Previously, the content of flags had not been reviewed. Rather the application for use of the plaza and flag pole asked only for contact information and a brief description of the event. There were no written policies on the flags that could be raised, no review of the content of the flags and no record of any prior denial of the use of a flag.
In reviewing its prior decisions, the Court differentiated between a situation where a community selected monuments that were placed in a city park, even those financed privately, which involved active government oversight and cases such as trademarks, where, except in the case of “offensive” trademarks, the government registered them without consideration of viewpoint.
The Court pointed out, other cities maintain strict regulation of what flags may be flown and approve the flags that may be flown. “All told, while the historical practice of flag flying at government buildings favors Boston, the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech—though nothing prevents Boston from changing its policies going forward.”
Here Boston acknowledged its claim that flying the religious flag at City Hall would violate the Establishment Clause. “When a government does not speak for itself, it may not exclude speech based on ‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination.’ Good News Club v. Milford Central School, 533 U.S. 98, 112, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001).”
The Court concluded “… Boston’s flag-raising program does not express government speech. As a result, the city’s refusal to let Shurtleff and Camp Constitution fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment. We reverse the First Circuit’s contrary judgment and remand the case for further proceedings consistent with this opinion.