The court said showing the flag was a public forum, and because many other groups were allowed to raise their flags in honor of the Boston community, the city could not discriminate on the basis of the religious group’s point of view without violating the constitution.
“We conclude that, in general, Boston has not made raising and waving flags of private groups a form of government speech,” wrote Judge Stephen Brier.
The lawsuit was filed in 2018 after a Boston official rejected the Camp Constitution group’s request to raise a flag – described as “Christian” in the statement – on one of the three flagpoles in front of Boston City Hall. The group is an all-volunteer association that seeks to “improve the understanding of the country’s Judeo-Christian moral heritage.”
Central to the case was whether the flagpole was seen as an example of government speech. If so, the city has the right to restrict the display without violating the principles of freedom of speech. The freedom of speech clause of the Constitution restricts government regulation of private speech, it does not regulate government speech. But if, on the other hand, the demonstration is a private speech in a government-created forum where others are invited to express their views, the government cannot discriminate on the basis of one speaker’s point of view.
Brier concluded that the flag-raising program “does not express government speech.”
All judges agreed on the outcome of the case, but three conservative judges said they had different reasons to rule against Boston.
Judge Samuel Alito, writing for Judges Neil Gorsuch and Clarence Thomas, said that although the court relied on “history, public perception of who is speaking and the extent to which the government has controlled speech” to determine that the flag – The promotion program is not a government speech, it would analyze the case based on a more precise definition of what government speech is.
According to a narrower definition of government speech, Alito writes that this happens “if – but only if the government” deliberately expresses its own message through people authorized to speak on its behalf. ”
He said the Boston flag program “cannot be a government speech” as the city has never replaced private speakers, and that the various flags waving at the program “reflect a dizzying and controversial set of views that cannot be be understood to express the message of a single speaker. ”
Boston sometimes allows private groups to wave flags, often flags of different countries, on one of the flags as part of a program to celebrate different Boston communities. Flag-raising events are in connection with ethnic and other cultural holidays or the arrival of high-ranking officials from other countries or to commemorate historical events.
According to the Camp Constitution, Boston has approved 284 other flags over the past 12 years that private organizations have tried to raise as part of the program, and no previous applications have been rejected.
In the case of unusual friends, the conservative Christian group, which is seeking to wave its flag, has received the support of both the Biden administration and the American Civil Liberties Union.
“Pure religious message”
Boston resident Hal Shertlef, the founder of Camp Constitution, sent an email to the city’s top officials for special events in 2017 to ask permission to raise the Christian flag and give a presentation with local clergy focused on Boston history. At the time, there was no written policy for processing applications, and the city had never denied a request to raise a flag.
The city ruled that it had no previous practice of waving a religious flag, and the request was rejected due to fears that the city appeared to approve a particular religion in violation of the constitutional clause. After the dispute, the city created its first written flag-raising policy.
Shertlef is suing the city, arguing that his renunciation of the flag violates his rights to freedom of expression under the First Amendment.
A district court ruled in favor of the city, ruling that the city was justified in rejecting the flag of the camp constitution, as the display was a government speech. The Federal Court of Appeals upheld the district court, ruling that raising the Christian flag “would threaten to communicate and approve a purely religious message on behalf of the city.”
Shertlef appealed the decision to the Supreme Court, arguing that Boston had violated the First Amendment because the flagpole demonstrations were a public forum and his group was rejected because of its religious views.
“The exclusion from the city of the Camp Constitution flag from the City Hall Flags Forum just because the flag is called ‘Christian’ is discrimination from an unconstitutional point of view,” his lawyer argued.
Matthew Staver, a lawyer for Shurtleff, told the judges that the city did not exercise control over messages made during a temporary flag-raising event that was open to other groups.
Supporting Shertlef, David Cole, ACLU’s national legal director, told The Washington Post that “no reasonable observer would understand the waving of the Camp Constitution flag – just for an hour a day – as a government speech.”
He said that, like other flags waving before, the flag would be seen as the group’s flag “and as such, the city cannot refuse it because the flag is religious.”
Attorney General Elizabeth Prelogar also told judges that the flag-raising program is not a government speech in part because the city does not usually exercise control over the choice of flags.
The city responded in court documents that displaying the flagpole is not a public forum open to all.
Douglas Holloward-Dreamer, a lawyer representing Boston, told the judges that the flagpole, “which stands prominently at the city government headquarters, is a means by which the city conveys its own message and is not simply passed on to private individuals as a forum to deliver their own messages, including those contrary to those of the city. ”
He said the goal of the flag-raising program was to mark flags from many countries and communities to create an environment in the city where “everyone feels included and treated with respect.”
“In a democratic system like ours, it is crucial that governments retain the right and ability to speak on behalf of their constituents and to take positions and privilege certain points of view when doing so,” said Hallward-Dreamer. He also said the city has suspended its flag-raising program while the appeal process is underway, “to ensure that it cannot be forced to use its city flagpole to post messages contrary to its own.” “.
This story was updated in further detail on Monday.
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