The Government’s Flagpole or the Public’s? The U.S. Supreme Court Rules Against Boston in First Amendment Case

CATEGORY: Blog Posts
CLIENT TYPE: Public Employers
PUBLICATION: California Public Agency Labor & Employment Blog
DATE: Jul 19, 2022

When does a City create a public form for speech under the First Amendment?  When can a City restrict which flags fly on a City flagpoles?  When can a City limit religious speech under the First Amendment?  The United States Supreme Court addressed these questions in its unanimous decision in Shurtleff v. City of Boston, Case No. 20–1800 on May 2, 2022.

Boston’s Practice of Allowing Groups to Raise Flags Outside City Hall

This case revolved around a flagpole outside Boston City Hall.  There are three flagpoles on the plaza outside Boston’s City Hall.  The first flies the American flag, the second flies the Commonwealth of Massachusetts flag, and the third usually – but not always – flies Boston’s flag.  Boston allows the public to use City Hall Plaza for events and acknowledges it is a “public forum.”  A public forum is a place the public can use for the free exchange ideas and for purposes of assembly.  When a public forum exists on government property, the government may only regulate the content of expressive activity if it serves a compelling state interest and narrowly drawn to achieve that interest.

Since at least 2005, Boston also allowed groups to have flag-raising ceremonies on the plaza where they were allowed to raise a flag of their choice on the third flagpole. Examples included flags of other nations, Pride Week, emergency medical workers, and a community bank.  About 50 different flags were raised between 2005 and 2017 and Boston never denied a request.

Boston Denies Request to Raise Christian Flag on Flagpole

Harold Shurtleff is the director and co-founder of an organization called Camp Constitution.  In 2017, Shurtleff applied for a flag-raising event on the Plaza to “’commemorate the civic and social contributions of the Christian community’” where he sought to raise what was described as the “Christian flag.”  The picture of the flag showed “a red cross on a blue field against a white background.”  Boston denied the request because it was the “Christian flag” and believed raising the flag would violate the Establishment Clause of the First Amendment.  The Establishment Clause prohibits public employers from engaging in conduct that endorses religion (i.e., it requires “separation of church and state”).  The City told Shurtleff the event could proceed if they raised a different flag.

Shurtleff and Camp Constitution sued claiming the City’s refusal to let them raise the Christian flag violated their right to free speech. The parties agreed on all the relevant facts.  The District Court ruled in favor of Boston and the United States Court of Appeals for the First Circuit affirmed.  The Supreme Court unanimously reversed and ruled in favor of Shurtleff.

The Supreme Court’s Decision

The Supreme Court focused on two questions:  (1) is the flag raising program government speech, and (2) can Boston deny the request under the First Amendment?

Was Raising the Flag Government Speech?

The Court first recognized that the First Amendment does not limit a government’s ability to express opinions or “speak for the community.”  This line “can blur” when there is public participation in a government program.  The Court explained it makes a “holistic inquiry” to evaluate “whether the government intends to speak for itself or to regulate private expression.”  The Court considered the following factors, such as “the history of the expression at issue; the public’s likely perception as to who … is speaking; and the extent to which the government has actively shaped or controlled the expression.”

While acknowledging flags convey government messages, the court noted the flag raising program allows other flags which the public may not associate with Boston.  More importantly, Boston did not control the flags raised by groups in the flag raising program.  While Boston controlled the scheduling of the event, maintained the physical premises, and provided a crank to raise the flag, Boston exercised no control over the content or messages conveyed by the flags.  Boston has no policies or guidance on what flags groups could fly, expressed it wished to accommodate all applicants, and until this event, never even saw the flags before the events.  Because the City had little to no involvement in the selection of the flags raised by the public or their message, or the events at which they were raised, the Court concluded the flag raisings are private expression and not government speech.

Could Boston Refuse to Raise the Christian Flag?

Because the public flag raisings constitute private expression – not government speech – Boston cannot discriminate based on viewpoint.  The Christian flag is Camp Constitution’s speech – not Boston’s.   Because Boston denied the Christian flag on the basis it promoted Christianity, that is impermissible viewpoint discrimination in violation of the First Amendment.

Three Takeaways For Your Agency

  1. Before regulating speech or expression, especially in connection with public events or programs, take a “holistic approach” to consider who is speaking – is your agency speaking or a private citizen?
  2. Implement and follow written policies to control government speech. The main reason the Supreme Court concluded the flag raising program was private – and not government – speech was because the City had no policies over the selection of the flags.  In contrast, the Court noted the City of San Jose California has a written policy stating its flagpoles are not a public forum for free expression.
  3. When your agency creates a public forum for free expression, be on the lookout for any regulations of the content of expressive activity in the forum. Limit restrictions in public forums to limits on the time, place, and manner of expressive activity.  These time, place and manner restrictions must be content-neutral, serve a significant government interest, and leave open ample alternative channels of communication.

Public agencies have to be mindful of the protections the First Amendment provides to the public when seeking to limit expressive activity on government property.  LCW regularly advises public agency and education clients concerning First Amendment issues and can assist you with these issues.