U.S. Supreme Court rules that Boston cannot limit which views are represented by city hall flag program

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After Boston refused to fly a man’s flag as part of its flag flying program outside city hall, he filed a federal lawsuit against the city, alleging that his right to Free Speech had been violated. Because the flag had a religious connotation, the city maintained that flying his flag would have violated the establishment clause of the First Amendment that prohibits the government from making any law “respecting an establishment of religion.” 

Key Players

Camp Constitution, an organization founded in 2009, describes its mission as promoting Christian and American values among young people. They have been deemed an “antigovernment movement” by the Southern Poverty Law Center (SPLC), who assesses the group is “part of the antidemocratic hard right movement.”

Harold Shurtleff is the co-founder and director of Camp Constitution. Between 1980 and 2016, Shurtleff was the field director of The John Birch Society, a far-right group described by the SPLC as an “extreme antigovernment” group. According to Word & Way, Shurtleff has made several controversial statements about systemic racism, vaccine safety, election fraud, climate change, and more. 

Further Details

Boston, the capital of Massachusetts, has a population of just under 700,000 and leans very liberal. 

The Boston flag flying program allows private organizations to fly special interest flags via city hall’s third flagpole, where the state flag and the American flag occupy the two other poles. According to the American Civil Liberties Union (ACLU), over the past decade, the city has flown nearly 300 different flags of private organizations and their respective causes. 

On July 28, 2017, Shurtleff filed an application to fly his flag. Religion News Service reported that he applied to have what he described as “the Christian flag” flown on the third flagpole during a Camp Constitution rally outside city hall “to celebrate the civic contributions of Boston’s Christian community.”

But on Sept. 5, 2017, city officials rejected his application, pointing out that they had never flown a flag with religious connotations before. Gregory Rooney, commissioner of the city’s property management department, said the decision was “consistent with well-established First Amendment jurisprudence prohibiting a local government from ‘respecting an establishment of religion,’” according to Shurtleff’s petition for certiorari to the Supreme Court. 

After the application was rejected, Camp Constitution noted that of the 285 applications ever received by Boston, only its had been denied. 

Boston affirmed that no religious flag had ever been flown, and that only two types of flags had been permitted: flags representing territories, nations and ethnicities, and flags associated with publicly recognized days of observance, Religion News Service reported. 

According to the Legal Information Institute, a legal nonprofit of Cornell Law School, Shurtleff filed his federal lawsuit in July 2018. He sought not only injunctive relief but also financial compensation for damages. 

On Aug. 29, 2018, U.S. District Judge Denise J. Casper, nominated by former President Barack Obama, ruled that city officials were justified in denying Shurtleff’s request, The Boston Globe reported. 

On June 27, 2019, the 1st Circuit Court of Appeals affirmed Casper’s judgment. Judge Juan Torruella, nominated by former President Ronald Reagan, held that the flagpole was not a public forum, and also wrote that “the likelihood of success of Shurtleff’s Establishment Clause claim is dim.” 

Shurtleff appealed once again, this time to the Supreme Court. After being granted certiorari in September 2021, arguments were heard in January 2022. Contrary to the decisions of the lower courts, SCOTUS justices “generally seemed to think it was a mistake for the city of Boston to refuse” Camp Constitution’s request, The Washington Post reported. The same piece pointed out that the case “had the remarkable effect of uniting conservative religious groups with the American Civil Liberties Union and the Biden administration, all of whom said the city was wrong.” 

SCOTUS’ debate centered on one key factor: What did the flagpole represent? If, as the city argued, it represented government speech and endorsement, then the flag would be an impermissible endorsement of a specific faith tradition. If, as the ACLU and Camp Constitution held, the flagpole was a designated public forum, then all speech must be tolerated and permitted. 

The Anti-Defamation League (ADL) felt that Boston had made the right choice, pointing out that such a flag on public ground would indicate a religious endorsement. Deseret News reported an ADL brief that stated, “There can be little serious doubt that the tens of thousands of people who cross City Hall Plaza on a typical day would reasonably understand that a flag flying from Boston’s 83-foot-tall flagpole in front of the seat of government and next to the U.S. and Massachusetts flags is there because it conveys something Boston wants to communicate.” 

Deseret News further explained the ADL’s position that a decision for Shurtleff would open the door for “antisemitic, white nationalist and other extremist groups” to “take full advantage of people’s assumptions about City Hall flag poles.”

But the ACLU disagreed, writing in an amicus brief that because the flag would only be displayed for a very short time, “such a fleeting display as part of a series of other brief private displays would not express a message of religious favoritism or endorsement.”

However, as Shurtleff and his legal team pointed out, legal precedent set by the case Minnesota Voters Alliance v. Mansky meant that if the flagpole is deemed a public forum rather than government speech, “restrictions based on content must satisfy strict scrutiny, and those based on viewpoint are prohibited.”

Notably, Douglas Hallward-Driemeier, the attorney leading Boston’s defense, admitted during oral arguments that if the flagpole were deemed a public forum, Boston’s invocation of the establishment clause would not stand up, The Post reported. 

Outcome

SCOTUS rules that Boston restricted Shurtleff’s Free Speech

On May 2, 2022, SCOTUS delivered a unanimous opinion, authored by Associate Justice Stephen Breyer, ruling “that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint ‘abridg[ed]’ their ‘freedom of speech.’” 

Acknowledging that Boston’s actions were understandable, Breyer wrote, “The line between a forum for private expression and the government’s own speech is important, but not always clear.” 

Nevertheless, the court found that the flagpole constituted a public forum, not state-sponsored speech. 

In a brief concurring opinion, Associate Justice Brett Kavanaugh agreed that the city’s actions were understandable and far from malicious, writing, “This dispute arose only because of a government official’s mistaken understanding of the Establishment Clause.”

SCOTUS returns case to lower courts

SCOTUS remanded the case back to the lower courts for a reassessment (under the court’s opinion) of Shurtleff’s claims to injunctions and cash damages. 

After the SCOTUS decision, the National Review noted that Boston suspended its flag program in October 2021, citing concerns from city officials that they would be made to “allow anyone to use the flagpole,” including “allowing flags advocating division or intolerance.”

As of June 22, 2022, there were no further updates.