Freely Flying Flags Can Lead to Flagrant Free Speech Fouls

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While it is axiomatic that when the government speaks, it speaks only for itself; however, the line between government and private speech can be easily blurred. The City of Boston learned this lesson the hard way when the U.S. Supreme Court recently held the City violated the First Amendment’s Free Speech Clause by denying a request from an organization seeking to raise a Christian flag on a flagpole outside Boston’s City Hall. Shurtleff v. City of Boston, No. 20-1800, 142 S. Ct. 1583 (May 2, 2022), serves as a reminder to government entities why, when permitting private individuals to participate in government speech programs, clear policies and procedures delineating what speech is and is not allowed are recommended best practices.

Since at least 2005, the City of Boston has allowed groups to hold flag-raising ceremonies in the City Hall plaza. Next to two flagpoles—one flying the flag of the United States of America, the other the flag of the Commonwealth of Massachusetts—a third flagpole usually flew the flag of the City of Boston. However, groups could request use of this third flagpole to raise flags associated with their own private message.  Some examples of flags flown include the flags for other countries, Pride Week, medical workers, and local businesses. Between 2005 and 2017, roughly 50 flags were raised at 284 ceremonies. No request was refused until, in July 2017, the director a Christian organization called Camp Constitution asked to hold a ceremony wherein a “Christian flag” would be raised. The proposed flag was a red cross on a blue field against a white background. The City denied the request not due to the flag’s contents; rather, as a Christian flag because City officials worried flying it would violate the Establishment Clause.

After rejecting Boston’s offer to proceed with the event provided the group raised a different flag, the organization sued the City on the grounds its actions violated the First Amendment’s Free Speech Clause. In granting summary judgment in favor of Boston, the district court found flying private groups’ flags was government speech, and thus the City acted within its authority by refusing to raise Camp Constitution’s flag. The group appealed to the Court of Appeals for the First Circuit, which affirmed. The Supreme Court of the United States accepted certiorari to determine whether: (1) Boston’s practice of allowing private groups to fly flags was an expression of government speech, and (2) whether the City could deny the group’s flag-raising request without violating the Free Speech Clause.

While noting the Free Speech Clause does not require the government to express certain views—that is, the government is permitted to choose what it does and does not wish to say—the Court nonetheless observed that “[t]he boundary between government speech and private expression can blur when, as here, a government invites the people to participate in a program.” When this occurs, the question becomes when does such expression constitute the government’s speech as opposed to creating a forum for private expression? The test, the Court wrote, is to “conduct a holistic inquiry designed to determine whether the government intends to speak for itself or to regulate private expression.” Instead of applying a mechanical set of factors, courts are to look at a variety of indicators, including “the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.”

Turning this analysis to the instant case, the Court found evidence that favored both sides. The history favored the City, since, historically speaking, the act of flying a flag is generally a quintessential government act. The Court noted that flags have, across human civilization, often been used as important symbols to represent communities, nations, and messages about government. In this vein, the flags in the City’s plaza usually conveyed the City’s messages, i.e., that of the United States, the Commonwealth of Massachusetts, and (usually) the City of Boston.

However, the inquiry did not end there. The Court next moved to the specifics of Boston’s flag-flying program. Namely, whether the public would consider the City’s actions of flag-flying as government speech. Conceding that although the public is likely to consider the flags as conveying some message of the government’s, the Court nevertheless determined that because private groups were allowed to fly their own flags next to the United States and Massachusetts flags, this evidence did not resolve the question of whether Boston conveyed a city message with these flags.

The final question the Court asked was to what extent Boston actively controlled the flag raisings and, also, to what extent it controlled the messages sent by the flags. Because, “[t]he answer . . . [was] not at all,” this, the Court found, was “the most salient feature” of the matter. While the City maintained control over the date, time, and means by which the flag raising occurred, it did not maintain control over the flags’ content and meaning. So little control did Boston maintain over the flags’ content and meaning—indeed, the City told the public it sought “to accommodate all applicants”— that the City admitted it had no written policies or internal regulations governing what flags could be flown and what those flags could communicate. “Boston’s come-one-come-all attitude,” typified by the City’s “lack of meaningful involvement in the selection of flags or the crafting of their messages,” meant the flag raisings were best classified as private speech.  The Court did note that nothing prevented the City from changing its policies going forward. Given the City’s flag-raising program was private speech, the Court thus concluded that denying Camp Constitution’s request was impermissible viewpoint discrimination based on religion and violated the Free Speech Clause of the First Amendment.

Shurtleff represents a timely reminder of the importance of maintaining established procedures for when the government allows its speech to be commingled with private speech. As compared to other cities—such as San Jose, which maintains written policies notifying the public that its flagpoles are not designed to serve as public forums for expression—Boston’s lack of any official regulations doomed it here. After approving every other flag that was requested to be raised, the City’s denial of a Christian flag could not help but be considered impermissible viewpoint discrimination. Public entities should accordingly bear in mind that if they allow private individuals to participate in programs where the line between public and private speech blurs, clear rules are needed that define what messages are, and are not, acceptable, in order to safeguard against claims of discrimination.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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