The Volokh Conspiracy
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The case has its genesis in a suit filed by plaintiffs Harold Shurtleff and Camp Constitution in which they complained that the defendants — the City of Boston and Gregory T. Rooney, in his official capacity as Commissioner of Boston's Property Management Department (collectively, the City) — trampled their constitutional rights by refusing to fly a pennant, openly acknowledged by the plaintiffs to be a "Christian Flag," from a flagpole at Boston City Hall. The district court granted summary judgment in favor of the City. Concluding, as we do, that the government speech doctrine bars the maintenance of the plaintiffs' free speech claims and that their remaining claims under the Establishment Clause and the Equal Protection Clause lack bite, we affirm….
The City owns and manages three flagpoles in an area in front of City Hall referred to as City Hall Plaza. The three flagpoles are each approximately eighty-three feet tall and are prominently located in front of the entrance to City Hall — the seat of Boston's municipal government. Ordinarily, the City raises the United States flag and the POW/MIA flag on one flagpole, the Commonwealth of Massachusetts flag on the second flagpole, and its own flag on the third flagpole. Upon request and after approval, though, the City will from time to time replace its flag with another flag for a limited period of time….
In a twelve-year period (from June 2005 through June 2017), the City approved 284 flag-raising events that implicated its third flagpole. These events were in connection with ethnic and other cultural celebrations, the arrival of dignitaries from other countries, the commemoration of historic events in other countries, and the celebration of certain causes (such as "gay pride"). The City also has raised on its third flagpole the flags of other countries, including Albania, Brazil, Ethiopia, Italy, Panama, Peru, Portugal, Mexico, as well as China, Cuba, and Turkey. So, too, it has raised the flags of Puerto Rico and private organizations, such as the Chinese Progressive Association, National Juneteenth Observance Foundation, Bunker Hill Association, and Boston Pride. Broadly speaking, we group these approvals as approvals for "the flags of countries, civic organizations, or secular causes."
Against this backdrop, we introduce the plaintiffs. Camp Constitution is an all-volunteer association that seeks "to enhance understanding of the country's Judeo-Christian moral heritage." Shurtleff is the founder and director of Camp Constitution. In July of 2017, the plaintiffs emailed Lisa Menino, the City's senior special events official, seeking leave to fly their own flag over City Hall Plaza. In their words, the proposed event would "raise the Christian Flag" and feature "short speeches by some local clergy focusing on Boston's history."
At the time of this request, the City had no written policy for handling flag-raising applications. What is more, Rooney had never before denied a flag-raising application. On this occasion, though, the plaintiffs' request "concerned" Rooney because he considered it to be the first request he had received related to a religious flag.
Of course, some of the flags that the City had raised contained religious imagery. The Portuguese flag, for instance, contains "dots inside blue shields represent[ing] the five wounds of Christ when crucified" and "thirty dots that represent[ ] [sic] the coins Judas received for having betrayed Christ." As another example, the Turkish flag situates the star and crescent of the Islamic Ottoman Empire in white against a red background. Indeed, the City's own flag includes a Latin inscription, which translates as "God be with us as he was with our fathers." None of the flags that the City had previously approved, however, came with a religious description.
Mulling the plaintiffs' application, Rooney conducted a review of past flag-raising requests and determined that the City had no past practice of flying a religious flag. He proceeded to deny the plaintiffs' flag-raising request. In response to the plaintiffs' inquiry into the reason for the denial, Rooney responded that the City's policy was to refrain respectfully from flying non-secular third-party flags in accordance with the First Amendment's prohibition of government establishment of religion. Rooney offered to fly some non-religious flag instead. The plaintiffs spurned this offer….
The record is pellucid that the City is not receptive to any and all proposed flag designs. As we previously indicated, the City controls which third-party flags are flown from the third flagpole. A flag-raising is approved only after Rooney "screen[s]" a proposed flag for "consisten[cy] with the City's message, policies, and practices" and provides his final approval. Furthermore, all 284 flags previously flown were flags of countries, civic organizations, or secular causes. That the City had not rejected prior requests is insufficient to conclude that the City accepts any and all flags because the record shows that the City had criteria for approval that limited flagpole access and that all flags flown satisfied those criteria. Here, the City's permission procedures evince selective access to the third flagpole, and "[t]he government does not create a designated public forum when it does no more than reserve eligibility for access to the forum to a particular class of speakers, whose members must then, as individuals, `obtain permission.'" The City's restrictions demonstrate an intent antithetic to the designation of a public forum, and those restrictions adequately support the conclusion that the City's flagpole is not a public forum.
That ends this aspect of the matter. Because the City engages in government speech when it raises a third-party flag on the third flagpole at City Hall, that speech is not circumscribed by the Free Speech Clause. The City is therefore "entitled" to "select the views that it wants to express." This entitlement includes both the right to decide not to speak at all and the right to disassociate itself from speech of which it disapproves….