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The Supreme Court ruled unanimously that a program of the city of Boston that allows outside groups to fly flags at city hall must permit the flying of flag with a cross that a camp referred to as a “Christian flag.”
The question before the court was whether flying the flag as part of a government program was considered government speech if the flag belonged to a private organization, in this case, Camp Constitution. The Supreme Court ruled that it is not.
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“We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech,” Justice Stephen Breyer wrote in the court’s opinion, stating that as a result the city improperly violated Camp Constitution’s free speech rights.
Boston argued that flying the flag was government speech because it was the city’s flag pole – indeed the pole is normally used to fly the flag of Boston when it is not used for this program. During oral arguments, the city’s attorney Douglas Harry Hallward-Driemeier noted that the city’s website says “we” commemorate flags of many countries and “our goal is to foster diversity,” which would indicate that it is the city’s decision to fly the flags in order to promote its own message.
Attorney Mathew Staver, representing Shurtleff, argued during oral arguments that the city’s policy specifically used the phrase “public forum,” which would indicate that the flags would be an expression of the private speech of the group that applied.
In the court’s opinion, Breyer recognized that there was evidence for both sides. He made clear that if this was government speech, Boston would have been within its rights to deny the camp’s application to fly the flag.
Flags fly above Boston City Hall on Nov. 11, 2021. (Photo by Lane Turner/The Boston Globe via Getty Images)
(Lane Turner/The Boston Globe via Getty Images)
“The First Amendment’s Free Speech Clause does not prevent the government from declining to express a view. When the government wishes to state an opinion, to speak for the community, to formulate policies, or to implement programs, it naturally chooses what to say and what not to say,” Breyer wrote. “That must be true for government to work.”
In cases like this, where “a government invites the people to participate in a program,” he continued, “[t]he boundary between government speech and private expression can blur.”
In order to decide whether speech like the flag program is government or private speech, Breyer said, the court has to take a ‘holistic’ approach that looks at the context of the situation. In the past, he said, the court has looked at history, the likely public perception of the speech, and “the extent to which the government has actively shaped or controlled the expression.”
Breyer stated that the general history of flag flying would support Boston, but that this “is only our starting point” before looking at the history of this particular flag-flying program.
Addressing public perception, Breyer said that “the circumstantial evidence does not tip the scale” in this particular case. He said that while the public might “ordinarily associate a flag’s message with Boston,” that may not be the case here because the Boston city flag is regularly lowered so that others could be raised in accordance with the program. The raising of the private flags is often accompanied by a ceremony by the private group, without government support.
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Finally, Breyer looked at the degree to which the city government controlled the raising of the flags and their messages.
“The answer, it seems, is not at all,” he wrote. “And that is the most salient feature of this case.”
The court’s opinion pointed to how Boston said their goal is “to accommodate all applicants” looking to hold events in the city’s “public forums,” including City Hall Plaza, and the flag flying application only asked for contact information and a short description of the event being requested.
Breyer noted that the city employee who fields flag applications testified that before Camp Constitution’s application, he had never even asked to see a flag before granting approval or even before they were raised.
“The city’s practice was to approve flag raisings, without exception,,” Breyer wrote.
Upon concluding that the flag program was not government speech, Breyer next turned to the question of whether denying Shurtleff’s application was viewpoint discrimination that violated the First Amendment. In a brief analysis, the court ruled that it was.
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Boston had acknowledged that they denied the application because of its religious content, due to their belief that it would have been government speech. Once the court decided that there was no government speech involved, that spelled the end of the city’s case.
“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,” Breyer wrote.
