There are three flagpoles outside Boston City Hall. One flies the United States flag. Another flies the Massachusetts state flag. And on Monday, the Supreme Court ruled on what can fly from the third.
In Shurtleff v. Boston, the ruling which came down on May 2, 2022, the court unanimously held that the City of Boston violated the First Amendment’s free speech rights of a group that promotes the appreciation of “God, home, and country” by denying its request to raise a Christian flag at the site, given that the city had previously allowed secular groups to temporarily use the flagpole.
The key question, which determined the outcome in the case, was whether raising a flag on City Hall’s third flagpole was an act of government speech or private expression: categories covered by two different free speech doctrines, which I study in my work on the First Amendment.
If it had been deemed an act of government speech, Boston would have had the right to selectively choose which messages it could endorse and could refuse to raise the Christian flag. But if, as the justices have now ruled, it is an act of private expression for which Boston provides a forum, then Boston cannot exclude it.
As such, the court ruled that denying a request to temporarily raise the Christian flag violated the First Amendment – a clarification that may impact how other courts nationwide interpret the Constitution’s guarantee of free speech.
Boston has permitted groups to request that a flag temporarily fly alongside the American and Massachusetts flags at City Hall to mark special occasions, replacing the city flag that usually occupies the third post. Past examples include flag requests from the Chinese Progressive Association and the National Juneteenth Observance Foundation.
In 2017, Camp Constitution, a New Hampshire-based organization, requested to fly the Christian flag, which has a cross in the upper left corner and was designed by a Sunday school teacher and a missionary executive in the late 1800s. Today, some Protestant denominations display the flag inside their churches.
Camp Constitution asked to fly the flag as part of a planned event “to celebrate the civic contributions of Boston’s Christian community.” The organization says its mission is “to enhance understanding of our Judeo-Christian moral heritage, our American heritage of courage and ingenuity, including the genius of our United States Constitution, and the application of free enterprise.”
Boston denied the request. The city cited concerns that raising the Christian flag at Boston City Hall would violate the First Amendment’s Establishment Clause, which bars the government from promoting particular religions over others. After making a second request, which Boston also denied, Camp Constitution sued.
A federal district court and the First Circuit Court of Appeals sided with Boston on the grounds that flying a flag on the third flagpole was government speech, not private speech – and therefore the city was entitled to refuse to fly the Christian flag on its flagpole.
Camp Constitution appealed to the Supreme Court, which granted review and rejected the lower courts’ conclusion. Instead, the justices held that it would be Camp Constitution’s expression, not Boston’s, if the Christian flag were to be raised on the third flagpole.
As Justice Samuel Alito noted in his concurrence, this meant that the court needed to apply the public forum doctrine, which in this case would not allow Boston to turn down Camp Constitution’s request to speak.
If the court had determined that the city of Boston was speaking, then the court’s government speech doctrine would have applied.
Public forum doctrine
Federal, state and local governments oversee a wide variety of public spaces: parks, universities and courthouses, just to name a few. The Supreme Court has organized government spaces into several categories, each of which permits different types of restrictions on free speech – rules referred to as the public forum doctrine.
Spaces like public parks and sidewalks are considered public forums, the category that permits the fewest restrictions on speech. In a public forum, a government can never restrict speech based on viewpoints – specific positions on a topic – and is severely limited as to when it can restrict speech based on content – a given topic.
Normally, a flagpole outside a city hall would not be considered a public forum. However, the Supreme Court also recognizes a separate category, “designated public forums,” which are spaces the government converts into public forums. In a designated public forum, free speech regulation is limited in the same way it would be in a public forum.
In Shurtleff v. Boston, both parties agreed that the area surrounding the flagpole is a public forum. But they disagreed over whether the flagpole itself had become a designated public forum, with Camp Constitution arguing that it had, and Boston arguing that it had not.
Justice Stephen Breyer, writing for the majority, noted that the “line between a forum for private expression and the government’s own speech is important, but not always clear.”
According to the court, on balance, more evidence suggested that Boston had turned the flagpole into a venue for private expression. The justices indicated that their conclusion applied to Boston’s specific policies. In other words, not all government flagpoles are public forums – and Boston could adopt new policies attempting to put restrictions on the type of flags public groups could fly on its flagpole.
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Government speech doctrine
Shurtleff v. Boston is now the newest precedent in the line of cases that constitutes the court’s government speech doctrine.
Over 30 years ago, in Rust v. Sullivan, the Supreme Court recognized that the government itself is a speaker with First Amendment rights. Government speech is not subject to the public forum doctrine. Instead, the government has much greater discretion in deciding which messages it endorses.
In 2009, for example, the Supreme Court held in Pleasant Grove v. Summum that the permanent monuments in a park owned and operated by the town were government speech. The Supreme Court’s unanimous decision allowed the town to deny a request from a small religious group, Summum, to install a permanent monument expressing its beliefs, even though the park had previously accepted a monument of the Ten Commandments.
And in 2015, the Supreme Court held in Walker v. Texas Division, Sons of Confederate Veterans that license plates were government speech. This permitted Texas to deny a request for a specialty license plate featuring the Confederate flag, even though Texas offered a wide range of other specialty plates.
But in 2017, the court unanimously held that the U.S. Patent and Trademark office was not engaged in government speech when accepting or rejecting applications for trademarks. Therefore, officials could not make trademark approvals contingent on whether trademark applicants used language the government would be comfortable expressing.
In previous cases, the Supreme Court has focused on several factors to determine whether an act of expression is government speech. These factors include how such acts of expression have been used historically, who the public would tend to reasonably assume is speaking and who maintains control.
In Shurtleff v. Boston, the court denied using a “mechanical” test to determine when something is government speech versus private expression. Justice Breyer wrote that the court’s inquiry had been “holistic,” implying that it did not strictly rule based on these same several factors, which the court referred to as “indicia.”
Nonetheless, the court’s analysis still relied on these considerations heavily. This may create confusion for lower courts about how exactly the government speech doctrine should be applied. Thus, while the court has resolved this particular case, it likely has not resolved longer-lasting disputes about the nature and scope of the government speech doctrine.
This is an updated version of an article first published on Jan. 6, 2022.