The court said the flag display was a public forum and because many other groups were allowed to hoist their flags to celebrate Boston community, the city could not discriminate on the basis of the religious group’s view without violating the constitution.
“We conclude that Boston, on the whole, did not make the hoisting and hoisting of private group flags a form of government speech,” Judge Stephen Breyer wrote.
The lawsuit was filed in 2018 after a Boston official rejected the Camp Constitution group’s application to hoist a flag – described as “Christian” in the application – on one of the three flagpoles outside Boston City Hall. The group is a voluntary association that seeks to “improve the understanding of the country’s Judeo-Christian moral heritage.”
Central to the case was whether the flagpole was perceived as an example of government speech. If so, the city has the right to restrict views without violating the principles of freedom of expression. The freedom of expression clause in the constitution restricts the government’s regulation of private speech, it does not regulate the government’s utterances. But if the demonstration, on the other hand, is similar to private speech, in a government-created forum where others are invited to express their views, the government can not discriminate based on one of the speakers’ views.
Breyer concluded that the flag-raising program “does not express government speech.”
All the judges agreed on the outcome of the case, but three conservative judges said they had different reasons to judge against Boston.
Judge Samuel Alito, who wrote for Judges Neil Gorsuch and Clarence Thomas, said that although the court relied on “history, the public’s perception of who is speaking and the extent to which the government has exercised control over speech” to establish that flag- travel program was not equal to government speech, he would have analyzed the matter from a more demanding definition of what is government speech.
Under a narrower definition of government speech, Alito wrote that it occurs “if – but only if” a government “intentionally expresses its own message through persons authorized to speak on its behalf.”
He said the Boston flag program “cannot possibly constitute government speech” because the city never substitutes for private speakers, and that the various flags flown during the program “reflected a dizzying and conflicting array of perspectives that cannot be understood as the message from a single individual. speaker. ”
Boston occasionally allows private groups to flag, often flags from different countries, on one of the flagpoles as part of a program to celebrate different Boston communities. The flag-raising events are in connection with ethnic and other cultural festivities or the arrival of dignitaries from other countries or to commemorate historical events.
According to the Camp Constitution, in the 12 years before, Boston had approved 284 other flags that private organizations had sought to raise as part of the program, and no other previous applications had been rejected.
In a case of unusual bedfellows, the conservative Christian group seeking to carry its flag received support from both the Biden administration and the American Civil Liberties Union.
‘A purely religious message’
Boston resident Hal Shurtleff, the founder of Camp Constitution, sent an email to city senior officials at special events in 2017 to seek permission to hoist the Christian flag and present a presentation featuring local pastors focusing on Boston history. At that time, there was no written policy to handle the applications, and the city had never rejected a flag-raising application.
The city ruled that it had no previous practice of flying a religious flag, and the request was denied out of concern that the city appears to support a particular religion in violation of the constitutional establishment clause. After the controversy, the city created its first written flag-raising policy.
Shurtleff sued the city, claiming that its denial of the flag violated his freedom of speech under the First Amendment.
A district court ruled in favor of the city and ruled that the city was entitled to deny the Camp Constitution flag because the display corresponded to the government’s speech. A federal appeals court upheld the city court, saying the hoisting of the Christian flag “would threaten to communicate and support a purely religious message on behalf of the city.”
Shurtleff appealed the decision to the Supreme Court, arguing that Boston had violated the First Amendment because the flagpole exhibits constituted a public forum and his group was denied because of its religious point of view.
“The city’s exclusion of the Camp Constitution flag from the City Hall flagpole forum, solely because the flag was called ‘Christian’, is unconstitutional discrimination of views,” his lawyer argued.
Mathew Staver, a lawyer for Shurtleff, told the judges that the city did not exercise any control over the messages expressed during a temporary flag-raising event open to other groups.
Supporting Shurtleff, David Cole, the ACLU’s national legal director, argued in The Washington Post that “no sensible observer would understand that it was the government’s speech to flag the Camp Constitution – for only an hour in a single day.”
He said that like the other flags flown before, the flag would be seen as the group’s flag “and as such the city cannot reject it because the flag is religious.”
Attorney General Elizabeth Prelogar also told the judges that the flag-raising program was not synonymous with government speech, in part because the city typically exercised no control over the choice of flag.
The city responded in court papers that the flagpole exhibit was not a public forum open to all.
Douglas Hallward-Driemeier, a lawyer representing Boston, told the judges that the flagpole “standing prominently at the city’s government seat is a means by which the city communicates its own message and has not simply been handed over to private parties as a forum to voice their own.” messages, including those that are opposed to the city. “
He said the goal of the flag raising was to celebrate flags from many countries and communities to create an environment in the city where “everyone feels included and treated with respect.”
“In a democratic system like ours, it is crucial that governments retain the right and ability to speak on behalf of their constituents and take positions and privilege certain views when they do,” Hallward-Driemeier said. He also said the city has halted its flag-raising program while the appeal process unfolds “to ensure it can not be forced to use its city flagpole to publish messages that are contrary to its own.”
This story has been updated with further details on Monday.