The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Hamtramck Council Approves Banning LGBTQ+, Other Flags on City Property"
Actually, the resolution just dictates what flags may be flown on city flagpoles; and that, I think, is constitutionally permissible.
So the Detroit News (Shawntay Lewis & Mark Hicks) reported yesterday:
City officials said the resolution was not rooted in division.
"It basically is council's attempt to keep the city's flag poles neutral," City Manager Max Garbarino said Tuesday.
"Last year there was a pride flag up there, and there was a dust-up in the community in regard to that. There was a lot of the community that was for it. There was a lot of the community that was against it.
"The thought process, I believe, is that it potentially could go up here again this summer. And this is basically a resolution specifically just saying these are the only flags we want in an attempt to stay neutral on the topic." …
[Garbarino] added he has "received some verbal requests from people representing some religious groups, and I expect more requests if we allow the flag of one group to be flown."
In 2022, Hamtramck seated its first all-Muslim city council and mayor. The council raised eyebrows in January when it approved updates to the city's ordinance outlining how residents can perform religious slaughters privately.
Here is the resolution:
RESOLUTION TO MAINTAIN AND CONFIRM THE NEUTRALITY OF THE CITY OF HAMTRAMCK TOWARDS ITS RESIDENTS
WHEREAS, the City of Hamtramck is one of the most diverse cities in the United States, in which we should proudly promote and embrace its diversity; and
WHEREAS, the City must and will serve and treat its residents equally, with no discrimination, or special treatment to any group of people; and
WHEREAS, the City has authorized in the past, the Human Relations Commission to install nations flags on the City flagpoles to represent the international character of the City, Resolution 2013-102: and
WHEREAS, each religious, ethnic, racial, political, or sexually oriented group is already represented by the country it belongs to; and
WHEREAS, the City does not want to open the door for radical or racist groups to ask for their flags to be flown; and
WHEREAS, this resolution does not in any way, shape or form infringe upon the fundamental right of an individual or business in the City of Hamtramck to engage free speech. Nor does this resolution limit speech by public employees provided that such employees engage in such speech in a protected time, manner and place.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Hamtramck, Wayne County, Michigan, that the government of the City of Hamtramck does not allow any religious, ethnic, racial, political, or sexual orientation group flags to be flown on the City's public properties, and that only, the American flag, the flag of the State of Michigan, the Hamtramck Flag, the Prisoner of War flag and the nations' flags that represent the international character of our City shall be flown.
This seems to be constitutional, and I wouldn't even describing it, as the article title does, as "banning" certain flags "on city property." The resolution is limited to "City flagpoles"; if a private person wants to carry a flag on a city street, or display it at some booth at a festival in a city park, the resolution wouldn't forbid that. Nor is it really a "ban" in a meaningful sense: Rather, it's the city defining the content of its own speech. Whenever a government entity decides what to say, it has to decide what not to say, but that isn't generally a ban, just a deciding to put up a permanent monument to the Union dead in a city park isn't a "ban" on monuments to the Confederate dead or the Soviet dead or the French dead.
To be sure, in Shurtleff v. City of Boston (2022), the Court held that an unusual flag-raising program created a "limited public forum" for private speech, from which the government couldn't then exclude certain flags. But note how the Court described the program:
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.
It was this general allowance of a vast range of flags that made this, in the Court's view, a forum for private speech. But the Court stressed that other cities need not do the same:
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.
Hamtramck seems to be following the Court's advice, and limiting its program to flags representing American government (national, state, and city) and the American military (the Prisoner of War flag), as well as to other national flags representing a particular city message, which is of ethnic diversity. This formal policy may have been prompted by a desire not to fly a Pride flag; but the City is entitled not to convey such messages on its flagpoles, as well as other messages that might (whether rightly or wrongly) be seen as controversial (or for that matter other uncontroversial messages as well). And to the extent people disapprove of this policy, the solution on such government speech questions must generally come from the political process, not from courts.
For more on the legal background on this, see this post (which discussed a city's choosing to allow "Black Lives Matter" and "Defund to the Police" to be painted on city streets, but not other slogans). Thanks to Wayne Smith for the pointer to the Hamtramck story.
