Free Speech

S. Ct. Agrees to Hear "Christian Flag" / Government Speech Case

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It's Shurtleff v. City of Boston; here's an excerpt from the decision below, which the Court will now review:

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….

NEXT: Supreme Court Denies Leave To File Amicus Brief in Hemphill v. New York

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  1. “The record is pellucid that the City. . . .”

    Pellucid?!?

    translucently clear
    lucid in style or meaning; easily understood

    1. First time with a Selya opinion?

  2. “The record is pellucid that the City is not receptive to any and all proposed flag designs.”

    “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.”

    ???

    1. I noticed that, too. It seems incredible that over 12 years and 284 flags, not one application was denied and not a single flag ever conveyed a religious message. It sounds like a post-hoc rationalization for the denial, but there weren’t any counter-examples to rebut it.

      1. It doesn’t quite say that. It says that Rooney had never before denied a flag-raising application, leaving open the possibility that prior to Rooney’s ascent to his office, his predecessors O’Shaughnessy, McGillicuddy and Lynch had turned down applications.

        However, it would have contributed to the pellucidity if the Judge had mentioned that, if it was in fact the case.

  3. IANAL but this seems like a content based restriction. Is that normally allowed in situations such as this?

    1. As noted in the recent confederate flag parade post, when the government producing its own speech, it can consider content in choosing what to say (or not to say), for reasons that I assume are fairly obvious,

      Whether this case is in fact an example of the government speaking seems to me to represent a closer question,

      1. Its a limited public forum case.

        City invites various opinions from various people, it can’t then discriminate based on content. The courts below don’t like the speech either so they shoehorn it into the government speech lane.

      2. I think that’s where the battle will be: Whether 1) this third flagpole is really the speech of the City of Boston, or 2) a limited public forum the City has opened up widely to private third parties for their speech.

        In other words, is this case more like 1) Pleasant Grove City v. Summum (permanent monuments are government speech) or 2) Capitol Square Review and Advisory Board v. Pinette (temporary cross display was private speech on public land that had become a limited public forum).

  4. This seems to be a classic “who owns the speech” case.

    It also suggests that Town of Greece has downstream implications.

    Until Town of Greece, the rule was that the legislature owned legislative prayer, hence had a relatively free hand deciding who could do it and what its content could be.

    But Town of Greece took the position that legislative prayer isn’t really the legislature’s.

    If you follow this reason to its logical conclusion, you get the position that legislatlative prayer is mandatory. If it allows other kinds of speakers, it must allow prayer. After all, since the legislature doesn’t own the content, it must be providing a forum. And if it provides a forum, it can’t discriminate against religion.

    Anyone want to take bets on when the Court will use this line of reasoning to rule that the Constitution mandates prayer in public schools – public schools can’t discriminate against it?

    1. It also occurs to be that the line that SCOTUS chooses to draw in this case, between government speech and not-government speech, might conceivably have implications for all those lines that Prof Volokh has been drawing between the hosting functions of social media and the social media company’s own speech.

    2. “Anyone want to take bets on when the Court will use this line of reasoning to rule that the Constitution mandates prayer in public schools”

      Your lips to God’s ear but, alas, no bet.

      1. There is no God, you childish hayseed.

        1. There will be prayer in schools as long as there is algebra. What I don’t get is the enthusiasm for government prayer.
          Well, maybe I do get it.

    3. Decades ago, I attended chatechism in my public grade school, one day a week after classes. The school rented out rooms for a little extra cash.

      Then for a few years, mommy drove me to the church for it. Then after that it was back to a public school classroom on Saturday.

      I never found out why, but I suspect court battles as there was rhetoric around then they could and did rent to boy and girl scouts, and the sarcastic notion of renting to Nazis, but not religion.

      Anyway, in this case, it sounds like they’re letting all comers put up a flag of things important to them, as long as it’s not vile, and to call out religion for denial sounds like nativity scene cases right under those very same flags, where as long as they didn’t deny other religions, or secular seasonal displays, it was ok.

  5. BRB, gotta request they fly the Saudi Arabian flag.

    1. I’m not sure that that’s functionally different from having a Latin religious statement on the city’s own flag.

  6. So let’s say someone wants them to fly a Soviet or Nazi era flag. Neither nation exists anymore, it’s free speech, right?

    1. They’ve flown a Chinese flag; why would a Soviet flag be a problem?

      1. China, Turkey, Cuba

        I like to think these were expats proud of their homeland and people, hopeful for the future, and not crypto shills propping up the image of dictatorships.

    2. We can draw lines, right? Like the objection to this being, oh, what if you want to fly the swastika, I mean come on. I dont know how you would make that distinction, but someone can come up with something. One can be pragmatic.

      A Christian flag should be in a reasonable society be a perfectly acceptable thing to fly. And it should be protected.

      1. You’ve clearly missed the entire post and jumped straight into your own uninformed conclusions.

        1. What part of the did I miss, if you care to say?

          1. They didn’t fly it for, in many’s opinions, misguided church-state issues, not because they were hissing and spitting at it, like the officials judging one of the cake shoppe decisions, that got the penalty tossed at the SC.

  7. There was a case a while ago where people could submit personalized license plates to the city. Confederates wanted to submit a confederate flag, Yada Yada Yada, it was rejected, court case. City won 5-4, with Thomas breaking from the Conservatives.

    My issue here is that, at first glance, clearly the city loses. Right? Like, a policy of allowing all flags except religious ones clearly a free speech restriction, and a free exercise restriction, and the court is highly suspicious on specific restrictions on religion based on establishment clause arguments that no longer work under existing precedent.

    Also, seriously? You draw the line at Christianity? Has no one managing this flag pole ever been to the North End? They have public parades every weekend with the Virginia Mary … I mean cmon.

    But, on the contrary, if a city can restrict what you put on a license plate, even under a supposedly open system, surely they can restrict a plagpole the city owns? I mean, Idk. And what exactly is the degree of openness to the public to trigger the line of government speech vs free speech for government owned things?

    Now, as I have always suspected, the Thomas precedent was always weak, and on the chopping block. Thomas doesn’t care about precedent, he will be far less sympathetic to restrictions on religion than Confederates anyway, and in any event the more conservative justices do not need him. Thats the practical matter.

    But the legal matter of reconciling that precedent, without scrapping it, honeslty I have no idea how to do that.

  8. flags of Puerto Rico and private organizations, such as the Chinese Progressive Association, National Juneteenth Observance Foundation, Bunker Hill Association, and Boston Pride.

    No Jonah Hill Association? 🙁

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