By Lisa Soronen
The issue the Supreme Court will decide in Shurtleff v. City of Boston is whether flying a flag on a flagpole owned by a government entity is government speech. If it is, the city may refuse to fly it.
Boston owns and manages three flagpoles in an area in front of City Hall. Boston flies the United States and the POW/MIA flag on one flagpole, the Commonwealth of Massachusetts flag on another flagpole, and its own flag on a third flagpole.
Third parties may request to fly their flag instead of the city’s flag in connection with an event taking place within the immediate area of the flagpoles. Camp Constitution seeks “to enhance understanding of the country's Judeo-Christian moral heritage.” It asked the city twice to fly its Christian flag while it held an event near the flag. Boston refused its request to avoid government establishment of religion.
The First Circuit held that flying a third-party flag on a City Hall flag pol
le is government speech. As the First Circuit pointed out: “Even though the First Amendment restricts government regulation of private speech in government-designated public forums, such restrictions do not apply to government speech.”
According to the First Circuit, in two previous cases (Pleasant Grove City v. Summum in 2009 and Walker v. Texas Division, Sons of Confederate Veterans in 2015) the Supreme Court has developed a three-part test for determining when speech is government speech. The Court looks at the history of governmental use, whether the message conveyed would be ascribed to the government, and whether the government “effectively controlled” the messages because it exercised “final approval authority over their selection.”
Regarding the history of governments using flags, the First Circuit stated “that a government flies a flag as a ‘symbolic act’ and signal of a greater message to the public is indisputable.”
The First Circuit also concluded that an observer would likely attribute the message of a third-party flag on the City's third flagpole to the City:
"[A]n observer would arrive in front of City Hall, “the entrance to Boston's seat of government.” She would then see a city employee replace the city flag with a third-party flag and turn the crank until the third-party flag joins the United States flag and the Massachusetts flag, both “powerful governmental symbols,” in the sky (eighty-three feet above the ground). A faraway observer . . . would see those three flags waiving in unison, side-by-side, from matching flagpoles.
That the third-party flag is part of a broader display cannot be understated. As the Summum Court explained, the manner in which speech is presented, including the incorporation of other monuments in the vicinity, changes the message communicated. Here, the three flags are meant to be — and in fact are — viewed together. The sky-high City Hall display of three flags flying in close proximity communicates the symbolic unity of the three flags.
The First Circuit had no difficulty concluding the city controlled the flags. “Interested persons and organizations must apply to the City for a permit before they can raise a flag on this flagpole.”
Camp Constitution argues the First Circuit should have applied First Amendment forum analysis, not the government speech doctrine, to determine whether Camp Constitution had a First Amendment right to fly its flag. According to Camp Constitution, City Hall flag poles are a designated public forum where viewpoint discrimination, including discrimination against a religious viewpoint, is prohibited.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.