Lawful or Landmine? Court Rules on First Amendment Snares
Municipalities throughout the country regulate signs and set policy for flag-flying on public property. Done right, these are lawful functions of local government; done wrong, they can be First Amendment landmines. Two recent U.S. Supreme Court decisions refine the map to navigate this landscape.
Shurtleff v. City of Boston (Flags)
Shurtleff v. City of Boston involved a dispute over Boston’s denial of a request to fly a religious flag outside City Hall. Boston had allowed private groups to hold flag-raising ceremonies outside City Hall during which groups could replace the city flag with a flag of that group’s choosing. From 2005 to 2017, Boston approved the raising of approximately 50 unique flags at 284 ceremonies.
The case began after the director of an organization called “Camp Constitution” asked to fly the “Christian flag”—which, according to Court documents, displayed a red cross on a blue field against a white background—during an event that would commemorate the “civil and social contributions of the Christian community.” City staff denied the request, citing concerns that flying a religious flag at City Hall would violate the Establishment Clause and that the City had no precedent for flying such a flag. Camp Constitution sued, claiming that Boston’s denial violated the First Amendment’s Free Speech Clause. The District Court sided with Boston, holding that flying private groups’ flags on City Hall property constituted “government speech” under the First Amendment, which allowed Boston to refuse the flag request. The First Circuit affirmed.
The Supreme Court reversed, holding that the flag raisings in question amounted to private—not government—speech due to Boston’s “lack of meaningful involvement in the selection of flags or the crafting of their messages.” In support of this holding, the Court observed that Boston had no written policy or internal guidance regarding which flags non-municipal groups could fly and what message those flags might communicate. Instead, Boston had a “come one, come all” attitude toward private groups’ flags; the city had never denied a private group’s flag request before this case. Upon classifying the flag raisings as private speech, the Court concluded that Boston’s refusal to let Camp Constitution fly its flag violated the Free Speech Clause of the First Amendment.
The Court advised that Boston was free to change its policies to “make clear that it wished to speak for itself by raising flags.” Tellingly, the Court cited approvingly the flag policy adopted by San Jose, California. The Court liked that the San Jose policy includes language stating that San Jose’s “flagpoles are not intended to serve as a forum for free-expression by the public” and limited its approval of flags flown to those that constitute “an expression of the City’s official sentiments.” The Court’s quasi-endorsement of San Jose’s policy strongly suggests that local flag policies with these features would qualify as government speech allowing a city to permit or reject flying of a flag consistent with the policies.
City of Austin, Texas v. Reagan National Advertising of Austin (Signs)
This decision involved the Supreme Court’s revisiting of its holding in Reed v. Town of Gilbert, Arizona. As a recap: in Reed, the Court struck down portions of the Gilbert, Arizona sign code that subjected ideological, political and directional signs to different rules with respect to size, location and length of display time. The Court characterized this regulatory scheme as “content-based” on its face because it subjected signs to different rules depending upon the message conveyed—whether ideological, political or directional. Under the Court’s First Amendment precedents, content-based restrictions are subject to “strict scrutiny” and are “presumptively unconstitutional … [unless] the government proves they are narrowly tailored to serve a compelling government interest.” In Reed, Gilbert failed to meet this standard.
The Court’s decision in City of Austin, Texas v. Reagan National Advertising of Austin centered on provisions in Austin’s sign code that allowed on-premises signs—but not off-premises signs—to be digitized. The Court characterized off-premises signs as those that “advertise things that are not located on the same premises as the sign, as well as signs that direct people to offsite locations.” The plaintiff, who owned billboards throughout Austin, argued that the sign code’s separate rules for off-premises and on-premises signs violated the Free Speech Clause of the First Amendment. The District Court sided with Austin, finding that the on/off premises distinction giving wider latitude to on-site advertising was content-neutral under Reed. The distinction did not impose greater restrictions for political messages, religious messages, or any other subject matter, but only required city decision-makers, property owners, advertisers and the public to determine whether the subject matter is located on the same property as the sign. The Fifth Circuit reversed, holding that the “the fact that a government official has to read a sign’s message to determine the sign’s purpose is enough to render a regulation content based and subject to strict scrutiny.” Taken to its extreme, this holding would require that a code allowing on-premises advertising allow any advertising message (i.e., not just business identification) on that premises.
The Supreme Court reversed the Fifth Circuit’s decision, reasoning that content-based restrictions subject to heightened scrutiny are those that “discriminate based on the topic discussed or the idea or message expressed.” Austin’s on/off-premises sign standards did none of these things; they were simply “location based and content-agnostic” standards that “did not single out specific subject matter for differential treatment.” Accordingly, the Court held that the on/off-premises sign standards were content neutral and subject to “intermediate scrutiny”—a standard of review that requires Austin to show that its on/off-premises sign distinction is “narrowly tailored to serve a significant government interest.” This decision aligns the Court’s guidance more closely with Justice Kagan’s concurring opinion in Reed, where the purpose of the sign (e.g., litter prevention or to show that “George Washington Slept Here”) could serve to justify some disparate messaging opportunities in the absence of any official message suppression. Justice Kagan had reasoned—and the Court now held—that in these cases, intermediate scrutiny is appropriate. Justice Kagan thought Gilbert’s ordinance failed both tests, noting that it did not pass “strict scrutiny, or intermediate scrutiny, or even the laugh test.” The Court sent the case back to the lower court to determine whether Austin’s code could satisfy this requirement.
Next Steps and Takeaways
In light of the decision in Shurtleff v. City of Boston, municipalities desiring to exercise discretion regarding the flags flown (and not flown) by private groups on public property should enact local policies that, among other things, identify the flags that groups can and cannot fly and what those flags communicate (e.g., the city’s official sentiments).
In light of the decision in City of Austin v. Reagan National Advertising of Austin, municipalities should consider revisiting their sign codes to ensure that any distinctions between on-premises and off-premises signs are “location based and content-agnostic” and do not single out specific subject matter for different treatment.
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