by Gary Taylor
Shurtleff v. City of Boston
United States Supreme Court, May 2, 2022
For years, Boston has allowed groups to hold ceremonies on the plaza in front of city hall, during which participants may hoist a flag of their choosing on a flagpole in place of the city’s own flag and fly it for the duration of the event, typically a couple of hours. Between 2005 and 2017 groups raised at least 50 different flags for 284 such ceremonies, including flags from other countries, flags honoring EMS workers, the Pride Flag and others.
Shurtleff, director of a Christian group, wanted to hold a ceremony to celebrate the civic and social contributions of the Christian community, and raise the “Christian flag”: a red cross on a blue field against a white background. Until Shurtleff’s application, the city had never denied a request to fly a flag. No written policies existed outlining what groups could or could not participate, or dictating the contents of the flag, and city employees did not ask to see the flag before the event. The application itself only asked for contact information and a brief description of the event.
City officials found no record of ever allowing a religious flag to be raised in the past. Because of concerns that flying the ”Christian flag” would violate the Establishment Clause of the First Amendment, officials told Shurtleff that his group could hold the event, but could not raise the flag. Shurtleff challenged the denial of the flag-raising in federal district court, contending that it violated is right to free expression under the First Amendment. The district court sided with Boston, and the First Circuit Court of Appeals agreed.
The United States Supreme Court did not. It observed that, generally speaking, flags’ contents, presence, and location have long conveyed governmental messages. The boundary between government speech and private expression can blur when, as here, the government invites the people to participate in a program. In these situations a Court must conduct a “holistic inquiry” into whether the government intends to speak for itself or, rather, to regulate private expression. Among the factors to consider in this inquiry are 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. As noted above, other than day, time and location, Boston exerted little control over the expression. The lack of meaningful involvement in the selection of flags or their messages means the flag-raising event is not “government speech,” and flying the flag for a short period of time does not constitute government promotion of a particular religion; therefore, the Establishment Clause of the First Amendment was not implicated. However, Boston’s refusal to let petitioner fly his flag did violate the Free Speech Clause of the First Amendment as it was ”impermissible viewpoint discrimination” that “abridged [Shurtleff’s] freedom of speech.”