Boston Can't Exclude Christian Flag from City Hall Flagpole When It Allows Many Other Groups to Fly Flags

So the Supreme Court held this morning, though it made clear that a city could pick and choose which flags it flies, if it makes clear that the flags are its own speech.

From today's Shurtleff v. City of Boston:

When the government encourages diverse expression—say, by creating a forum for debate—the First Amendment prevents it from discriminating against speakers based on their viewpoint [including based on its conveying a religious message]. See Rosenberger v. Rector (1995).

But when the government speaks for itself, the First Amendment does not demand airtime for all views. After all, the government must be able to "promote a program" or "espouse a policy" in order to function. Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015). {Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans. The Constitution therefore relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks.} The line between a forum for private expression and the government's own speech is important, but not always clear.

This case concerns a flagpole outside Boston City Hall. For years, Boston has allowed private groups to request use of the flagpole to raise flags of their choosing. As part of this program, Boston approved hundreds of requests to raise dozens of different flags. The city did not deny a single request to raise a flag until, in 2017, Harold Shurtleff, the director of a group called Camp Constitution, asked to fly a Christian flag. Boston refused. At that time, Boston admits, it had no written policy limiting use of the flagpole based on the content of a flag.

The parties dispute whether, on these facts, Boston reserved the pole to fly flags that communicate governmental messages, or instead opened the flagpole for citizens to express their own views. If the former, Boston is free to choose the flags it flies without the constraints of the First Amendment's Free Speech Clause. If the latter, the Free Speech Clause prevents Boston from refusing a flag based on its viewpoint.

We conclude that, on balance, Boston did not make the raising and flying of private groups' flags a form of government speech. That means, in turn, that Boston's refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint "abridg[ed]" their "freedom of speech." …

The majority opinion, written by Justice Breyer and joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh, and Barrett, applied the three-factor analysis that the Court had used in Pleasant Grove City v. Summum (2009) and Walker:

Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public's likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.

Considering these indicia in Summum, we held that the messages of permanent monuments in a public park constituted government speech, even when the monuments were privately funded and donated. In Walker, we explained that license plate designs proposed by private groups also amounted to government speech because, among other reasons, the State that issued the plates "maintain[ed] direct control over the messages conveyed" by "actively" reviewing designs and rejecting over a dozen proposals. In Matal v. Tam (2017), on the other hand, we concluded that trademarking words or symbols generated by private registrants did not amount to government speech. Though the Patent and Trademark Office had to approve each proposed mark, it did not exercise sufficient control over the nature and content of those marks to convey a governmental message in so doing. These precedents point our way today….

To begin, we look to the history of flag flying, particularly at the seat of government. Were we to consider only that general history, we would find that it supports Boston…. Not just the content of a flag, but also its presence and position have long conveyed important messages about government…. The flying of a flag other than a government's own can also convey a governmental message. A foreign flag outside Blair House, across the street from the White House, signals that a foreign leader is visiting and the residence has "becom[e] a de facto diplomatic mission of the guest's home nation." …

Keeping with this tradition, flags on Boston's City Hall Plaza usually convey the city's messages. On a typical day, the American flag, the Massachusetts flag, and the City of Boston's flag wave from three flagpoles. Boston's flag, when flying there at full mast, symbolizes the city. When flying at half-staff, it conveys a community message of sympathy or somber remembrance. When displayed at other public buildings, it marks the mayor's presence. The city also sometimes conveys a message by replacing its flag with another. When Boston's mayor lost a bet with Montreal's about whose hockey team would win a playoff series, Boston, duty-bound in defeat, hoisted the Canadiens' banner.

While this history favors Boston, it is only our starting point. The question remains whether, on the 20 or so times a year when Boston allowed private groups to raise their own flags, those flags, too, expressed the city's message. So we must examine the details of this flag-flying program.

Next, then, we consider whether the public would tend to view the speech at issue as the government's. In this case, the circumstantial evidence does not tip the scale. On an ordinary day, a passerby on Cambridge Street sees three government flags representing the Nation, State, and city. Those flags wave "in unison, side-by-side, from matching flagpoles," just outside "'the entrance to Boston's seat of government.'" Like the monuments in the public park in Summum, the flags "play an important role in defining the identity that [the] city projects to its own residents and to the outside world." So, like the license plates in Walker, the public seems likely to see the flags as "'conveying some message'" on the government's "'behalf.'"

But as we have said, Boston allowed its flag to be lowered and other flags to be raised with some regularity. These other flags were raised in connection with ceremonies at the flagpoles' base and remained aloft during the events. Petitioners say that a pedestrian glimpsing a flag other than Boston's on the third flagpole might simply look down onto the plaza, see a group of private citizens conducting a ceremony without the city's presence, and associate the new flag with them, not Boston. Thus, even if the public would ordinarily associate a flag's message with Boston, that is not necessarily true for the flags at issue here. Again, this evidence of the public's perception does not resolve whether Boston conveyed a city message with these flags.

Finally, we look at the extent to which Boston actively controlled these flag raisings and shaped the messages the flags sent. The answer, it seems, is not at all. And that is the most salient feature of this case…. [I]t is Boston's control over the flags' content and meaning that here is key; that type of control would indicate that Boston meant to convey the flags' messages….

Boston told the public that it sought "to accommodate all applicants" who wished to hold events at Boston's "public forums," including on City Hall Plaza. The application form asked only for contact information and a brief description of the event, with proposed dates and times. The city employee who handled applications testified by deposition that he had previously "never requested to review a flag or requested changes to a flag in connection with approval"; nor did he even see flags before the events. The city's practice was to approve flag raisings, without exception. It has no record of denying a request until Shurtleff 's. Boston acknowledges it "hadn't spent a lot of time really thinking about" its flag-raising practices until this case. True to its word, the city had nothing—no written policies or clear internal guidance—about what flags groups could fly and what those flags would communicate.

Compare the extent of Boston's control over flag raisings with the degree of government involvement in our most relevant precedents. In Summum, we emphasized that Pleasant Grove City always selected which monuments it would place in its park (whether or not the government funded those monuments), and it typically took ownership over them. In Walker, a state board "maintain[ed] direct control" over license plate designs by "actively" reviewing every proposal and rejecting at least a dozen. Boston has no comparable record.

The facts of this case are much closer to Matal v. Tam. There, we held that trademarks were not government speech because the Patent and Trademark Office registered all manner of marks and normally did not consider their viewpoint, except occasionally to turn away marks it deemed "offensive." Boston's come-one-come-all attitude—except, that is, for Camp Constitution's religious flag—is similar.

Boston could easily have done more to make clear it wished to speak for itself by raising flags. Other cities' flag-flying policies support our conclusion. The City of San Jose, California, for example, provides in writing that its "'flagpoles are not intended to serve as a forum for free expression by the public,'" and lists approved flags that may be flown "'as an expression of the City's official sentiments.'"

All told, while the historical practice of flag flying at government buildings favors Boston, the city's lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech—though nothing prevents Boston from changing its policies going forward….

Justice Alito, joined by Justices Thomas and Gorsuch join, would have reached the same result, but using a somewhat different analysis:

[T]he real question in government-speech cases[ is] whether the government is speaking instead of regulating private expression…. The ultimate question is whether the government is actually expressing its own views or the real speaker is a private party and the government is surreptitiously engaged in the "regulation of private speech." … Government speech is … the purposeful communication of a governmentally determined message by a person exercising a power to speak for a government….

Our precedents recognize two ways in which a government can speak using private assistance. First, the government can prospectively "enlis[t] private entities to convey its own message," by deputizing private persons as its agents. See[, e.g.,] Rust v. Sullivan. In that kind of situation, private persons assume a public or quasi-public capacity that empowers them to speak on behalf of the government. So long as this responsibility is voluntarily assumed, speech by a private party within the scope of his power to speak for the government constitutes government speech.

Second, the government can "adop[t]" a medium of expression created by a private party and use it to express a government message. Summum. In that circumstance, private parties are not deputized by the government; instead a private person generates a medium of expression and transfers it to the government. For the adopted expression to qualify as the government's, the private party must alienate control over the medium of expression to the government. And government actors must put the medium to use to intentionally express a government message. Otherwise, the government is simply providing a forum for private parties to submit their own productions and usual First Amendment principles apply. And to avoid running afoul of the prohibition on compelled speech, that alienation must be voluntary.

{In [Walker], properly understood, the government claimed to have adopted specialty-license-plate designs submitted by private parties and actually did "ow[n] the designs on its license plates." But it was not obvious how designs such as "Rather Be Golfing" could possibly express a government message. In other words, although the private parties alienated control over the plate designs, the government did not have any purpose to communicate, and instead allowed private parties to use personal plates to communicate their own messages. This expansive understanding of government speech by adoption should be confined to government-issued IDs. As we have said, Walker "likely marks the outer bounds of the government-speech doctrine." Matal v. Tam. [Note that Justice Thomas, who joined Justice Alito's opinion in Shurtleff, also provided the fifth vote for the majority in Walker, a case in which Justice Alito wrote the dissent. -EV]}

This approach also explains the circumstances in which we have concluded that the government is not speaking. We have repeatedly held that the government-speech doctrine does not extend to private-party speech that is merely subsidized or otherwise facilitated by the government. Facilitating speech by private persons cannot constitute government speech unless the government assigns a power to speak to those persons or appropriates the products of their expressive activity to express its own message. When the government's role is limited to applying a standard of assessment to determine a speaker's eligibility for a benefit, the government is regulating private speech, and ordinary First Amendment principles apply….

Analyzed under this framework, the flag displays were plainly private speech within a forum created by the City, not government speech. The record attests that the City's application materials—which were the only written form of guidance available on the program prior to the adoption of a written policy in 2018—characterized the flagpoles as one of the City's "public forums." The application guidelines did not enumerate any criteria for access to the flagpoles that go beyond those typical of a resource that has been made generally available to the public. The first rejection of an application was the denial of Camp Constitution's application in 2017. Prior to then, the City never rejected any request to raise a flag submitted by any private party. And private speakers accounted for 78% of the flag-raising applicants.

A program with this design cannot possibly constitute government speech. The City did nothing to indicate an intent to communicate a message. Nor did it deputize private speakers or appropriate private-party expressive content. The flags flown reflected a dizzying and contradictory array of perspectives that cannot be understood to express the message of a single speaker….

In briefing before this Court, counsel for the City argued that despite all appearances to the contrary, the City actually did intend to express a message through the flag-raising program: The City's support for "the diverse national heritage of the City's population." All other flag raisings, the City claims, occurred "in connection with some publicly designated date of observance." This argument is a transparent attempt to reverse engineer a governmental message from facts about the flag raisings that occurred.

It is true that many of the flag raisings from 2007 to 2015 celebrated nationalities. But these events were conducted by private organizations to express their own support for the relevant national communities. Neither the City's application guidance nor the 2018 written policy singled out a connection with a nationality commemoration as a condition of access to the flagpoles. The City never cited this purported requirement in its rejection of the applications it denied. And the City approved flags that had nothing to do with nationality or official holidays, such as the "Metro Credit Union Flag Raising" mentioned by the Court….

On this record, … the only viable inference is that the City had no policy restricting access to the forum apart from the modest access conditions articulated in the application materials. Having created a forum with those characteristics, the City could not reject Shurtleff's application on account of the religious viewpoint he intended to express…

And Justices Alito, Thomas, and Gorsuch criticized the three-factor analysis borrowed from Walker and Summum:

Consider first "the extent to which the government has actively shaped or controlled the expression." Government control over speech is relevant to speaker identity in that speech by a private individual or group cannot constitute government speech if the government does not attempt to control the message. But control is also an essential element of censorship. Consider this example. The British Licensing Act of 1737, as amended by the Theatres Act of 1843, prohibited the performance of any "interlude, tragedy, comedy, opera, play, farce, or other entertainment" without a patent issued by the King of England or a "License from the Lord Chamberlain of Her Majesty's Household." This regime attracted criticism precisely because it gave the Lord Chamberlain extensive "control over the nature and content," of covered performances. One of the leading critics of the Act—the playwright George Bernard Shaw—was denied permission to perform several plays, including Mrs. Warren's Profession, The Shewing-up of Blanco Posnet, and Press Cuttings. But had the Lord Chamberlain approved these plays, would anyone seriously maintain that those plays were thereby transmuted into the government's speech?

As this illustration shows, neither "control" nor "final approval authority" can in itself distinguish government speech from censorship of private speech, and analyzing that factor in isolation from speaker identity flattens the distinction between government speech and speech tolerated by the censor. And it is not as though "actively" exercising control over the "nature and content" of private expression makes a difference, as the Court suggests. Censorship is not made constitutional by aggressive and direct application.

Next, turn to the history of the means of expression. Historical practice can establish that a means of expression "typically represent[s] government speech." But in determining whether speech is the government's, the real question is not whether a form of expression is usually linked with the government but whether the speech at issue expresses the government's own message. Governments can put public resources to novel uses. And when governments allow private parties to use a resource normally devoted to government speech to express their own messages, the government cannot rely on historical expectations to pass off private speech as its own.

This case exemplifies the point. Governments have long used flags to express government messages, so this factor provides prima facie support for Boston's position under the Court's mode of analysis. But on these facts, the history of flags clearly cannot have any bearing on whether the flag displays express the City's own message. The City put the flagpoles to an unorthodox use—allowing private parties to use the poles to express messages that were not formulated by City officials. Treating this factor as significant in that circumstance loads the dice in favor of the government's position for no obvious reason.

Now consider the third factor: "the public's likely perception as to who (the government or a private person) is speaking." … Unless the public is assumed to be omniscient, public perception cannot be relevant to whether the government is speaking, as opposed merely appearing to speak. Focusing on public perception encourages courts to categorize private expression as government speech in circumstances in which the public is liable to misattribute that speech to the government.

This case once again provides an apt illustration. As the Court rightly notes, "[a] passerby on Cambridge Street" confronted with a flag flanked by government flags standing just outside the entrance of Boston's seat of government would likely conclude that all of those flags "conve[y] some message on the government's behalf." If that is the case, this factor supports the exclusion of private parties from using the flagpoles even though the government allows private parties to use the flagpoles to express private messages, presumably because those messages may be erroneously attributed to the government. But there is no obvious reason why a government should be entitled to suppress private views that might be attributed to it by engaging in viewpoint discrimination. The government can always disavow any messages that might be mistakenly attributed to it.

The factors relied upon by the Court are thus an uncertain guide to speaker identity. But beyond that, treating these factors as a freestanding test for the existence of government speech artificially separates the question whether the government is speaking from whether the government is facilitating or regulating private speech. Under the Court's factorized approach, government speech occurs when the government exercises a "sufficient" degree of control over speech that occurs in a setting connected with government speech in the eyes of history and the contemporary public, regardless of whether the government is actually merely facilitating private speech. This approach allows governments to exploit public expectations to mask censorship.

And like any factorized analysis, this approach cannot provide a principled way of deciding cases. The Court's analysis here proves the point. The Court concludes that two of the three factors—history and public perception—favor the City. But it nonetheless holds that the flag displays did not constitute government speech. Why these factors drop out of the analysis—or even do not justify a contrary conclusion—is left unsaid. This cannot be the right way to determine when governmental action is exempt from the First Amendment….

Justice Kavanaugh joined by the majority but wrote a separate concurrence in which he stressed that the City's concern that the flag would be seen as an endorsement of religion was unjustified: "a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like."

Justice Gorsuch, joined by Justice Thomas, expressed a similar view, but used the opportunity to more extensively criticize the Lemon v. Kurtzman Establishment Clause test, on which the City relied in lower court proceedings: "To justify a policy that discriminated against religion, Boston sought to drag Lemon once more from its grave…. Lemon ignored the original meaning of the Establishment Clause, it disregarded mountains of precedent, and it substituted a serious constitutional inquiry with a guessing game. This Court long ago interred Lemon, and it is past time for local officials and lower courts to let it lie."