Shurtleff v. Boston
596 U. S. ____ (2022) (2022)
Rule of Law:
When a government does not exercise meaningful control over the selection of flags or the crafting of messages in a flag-raising program available to the public, the program constitutes a forum for private speech, not government speech. Consequently, the government's refusal to allow a flag to be raised based on its religious viewpoint is impermissible viewpoint discrimination that violates the Free Speech Clause of the First Amendment.
Facts:
- The City of Boston maintains three flagpoles on City Hall Plaza, frequently making the third pole available for temporary flag-raising ceremonies by private groups.
- Between 2005 and 2017, Boston approved all 284 requests from private groups to fly approximately 50 unique flags, including the flags of foreign nations and flags associated with various secular causes.
- The city's application process was ministerial, requiring only contact information and event details, and city officials never requested to review a flag prior to an event.
- In 2017, Harold Shurtleff, director of an organization named Camp Constitution, applied to host an event to celebrate the civic contributions of the Christian community and requested to raise the 'Christian flag' as part of the ceremony.
- A Boston city commissioner denied Camp Constitution's request, citing concerns that flying a religious flag at City Hall would violate the Establishment Clause.
- This was the first and only time the City of Boston had ever denied a private group's flag-raising request.
Procedural Posture:
- Harold Shurtleff and Camp Constitution sued the City of Boston in the U.S. District Court for the District of Massachusetts.
- The District Court granted summary judgment in favor of Boston, holding that the flag raising was government speech and the city's refusal was therefore permissible.
- Shurtleff, as appellant, appealed to the U.S. Court of Appeals for the First Circuit, with the City of Boston as appellee.
- The First Circuit affirmed the trial court's decision, agreeing that the flag-raising program constituted government speech.
- The Supreme Court of the United States granted Shurtleff's petition for a writ of certiorari.
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Issue:
Does the City of Boston's refusal to allow a private organization to raise its flag, which it described as a Christian flag, on a city hall flagpole—a forum generally available to other private groups—violate the Free Speech Clause of the First Amendment?
Opinions:
Majority - Justice Breyer
Yes, Boston's refusal to let petitioners fly their flag violated the Free Speech Clause. The flag-raising program did not constitute government speech because the city did not exercise sufficient control over the messages conveyed. To determine whether speech is governmental or private, the Court conducts a holistic inquiry analyzing the history of the expression, the public's likely perception of the speaker, and the extent of government control. While the history of flying flags at government buildings favors Boston, the most salient feature of this case is that Boston exercised no meaningful involvement in the selection of flags or the crafting of their messages. Its 'come-one-come-all' practice of approving every prior application without review made the flagpole a forum for private speech. Because the flagpole was a forum for private speech, Boston’s refusal to fly the flag because of its religious viewpoint was impermissible viewpoint discrimination.
Concurring in the judgment - Justice Alito
Yes, Boston's refusal violated the First Amendment. The majority's reliance on the three-factor test from Walker and Summum is misguided because the core question is simply whether the government is actually speaking or is instead regulating private expression. Government speech occurs only when the government purposefully expresses a message of its own through authorized persons. Here, Boston's policy and practice clearly show it opened a public forum for private speakers. The flags flown reflected a 'dizzying and contradictory array of perspectives' that could not be the message of a single speaker. Therefore, denying the application based on its religious viewpoint was unconstitutional viewpoint discrimination.
Concurring in the judgment - Justice Gorsuch
Yes, Boston's refusal violated the First Amendment. The city's error stems from a mistaken understanding of the Establishment Clause, rooted in the now-abandoned test from Lemon v. Kurtzman. This flawed test created a 'vise' where officials, fearing an Establishment Clause claim, would discriminate against religious speech, thereby inviting a valid Free Speech Clause claim. Boston's decision to exclude the Christian flag while having previously flown a secular flag with a similar cross illustrates this 'Lemon trade.' The proper approach to the Establishment Clause is to look to its original meaning and historical practice, which shows no tradition of excluding religious symbols from the public square.
Concurring - Justice Kavanaugh
Yes, Boston's refusal violated the Free Speech Clause. The entire dispute arose from a government official's mistaken understanding of the Establishment Clause. A government does not violate the Establishment Clause by treating religious speech equally with secular speech in public programs; on the contrary, a government violates the Constitution when it excludes religious persons, organizations, or speech from such programs. Under the Constitution, a government may not treat religious speech as second-class.
Analysis:
This decision significantly clarifies the government speech doctrine by highlighting that passive accommodation of private speakers, without active message control or selection, creates a public forum subject to First Amendment constraints. It establishes that a government's 'come-one-come-all' practice is strong evidence against a claim of government speech. The ruling curtails the ability of government entities to use a mistaken fear of an Establishment Clause violation as a shield for viewpoint discrimination against religious speech, reinforcing that neutrality requires equal, not exclusionary, treatment of religious viewpoints in a public forum.
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