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Tuesday, May 3, 2022

Supreme Court Finds City in Violation of First Amendment for Denying Religious Flag on City Flag Pole

On Monday, the U.S. Supreme Court issued an opinion finding the City of Boston in violation of the First Amendment after it denied a religious group the ability to fly its "Christian Flag" on the flagpole at City Hall. Shurtleff v. City of Boston. Justice Breyer authored the opinion, and all nine Justices joined in the judgment, although there were three separate concurring opinions.

The City of Boston has three flag poles on a plaza at City Hall. The City usually flies the American flag, the Massachusetts flag, and the City flag on those flagpoles. Occasionally, the City allowed private groups to hold events on the plaza and fly the flag of their choosing on the third flagpole (the one that usually flies the City flag). According to the decision, the City allowed 50 different flags to be flown on the City flagpole between 2005 and 2017. 

In 2017, a group called "Camp Constitution" asked the City to allow it to hold a flag raising event where the group would fly a flag that would commemorate the Christian faith (Christian Flag). The City denied approval on the basis that it believed that flying a religious flag at City Hall would violate the Establishment Clause of the First Amendment. The group sued the City, and the district court held that the City acted within its constitutional authority by denying the Christian Flag, finding that the flags flying from the City's flag pole constituted government speech, meaning the City could choose what flags to fly (i.e., control the message).

The case made its way to the U.S. Supreme Court which issued its opinion this week finding that the City's flag practices were not government speech. Instead, the Court determined that the City had opened up a public forum when it allowed private groups to fly flags of their choosing at City Hall, and once a public forum was open, the City could not discriminate based on religious viewpoint. The Court stated as follows:

When a government does not speak for itself, it may not exclude speech based on "religious viewpoint"; doing so "constitutes impermissible viewpoint discrimination."

The Court acknowledged that there is a blurry line between government speech (where the government can control the message) and a public forum (where the government invites speech and cannot discriminate based on viewpoint). In analyzing whether the flagpole activities were government speech or constituted a public forum, the Court looked at three factors.

First, the Court looked at the history of flag flying at City Hall, which the Court recognized mostly supported the City of Boston since the City's flagpole most often conveyed the City's message (the City flag) and not private expression.

Second, the Court looked at whether the public would tend to view the speech (i.e., flag flying) as City speech or private expression. The Court determined that this factor was not clear since the City flag and private flags shared the third flagpole.

The final factor was the extent to which the City controlled the flag raisings and shaped the messages. It was this factor that the Court found determinative in its analysis of whether the speech was government speech or private expression. The Court noted that the City had allowed numerous groups to raise their flags over a 12 year period and had never denied permission until 2017 when it denied the Christian Flag. The Court also noted that the private groups selected the flags, not the City. The Court found no evidence that the private flags were an expression of the City's official sentiments or messaging, contrasting Boston's practice with a flagpole policy adopted by the City of San Jose that expressly states that the approved flags that may be flown on its flagpoles "are not intended to serve as a forum for free expression by the public" and instead are flown "as an expression of the City's official sentiments." 

It is important to note that the Court did not hold that all government flagpoles must accommodate private expression or that a government cannot choose to fly a flag of its own choosing to commemorate an occasion, event, or group. What the Court did say, however, is that a government flagpole could turn into a "public forum" if the government opens it up to private expression in a manner like what the City of Boston had done. Once a public forum is created, the government needs to be careful not to discriminate based on the viewpoint of the message or speech in a way that would violate the First Amendment.


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