Shurtleff v. Boston
596 U. S. ____ (2022) (2022)
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Rule of Law:
When a government allows private groups to use a public flagpole for their own expressive purposes without actively controlling or shaping the messages, the program constitutes private speech, and the government cannot discriminate against speech based on its religious viewpoint under the Free Speech Clause.
Facts:
- Boston City Hall Plaza has three flagpoles: one for the American flag, one for the Massachusetts flag, and a third where the city usually flies its own flag.
- For years, Boston allowed various groups to hold ceremonies on the plaza, during which participants could hoist a flag of their choosing on the third pole, replacing the city’s flag.
- Between 2005 and 2017, Boston approved the raising of about 50 unique flags for 284 such ceremonies, including flags of other countries and flags associated with groups or causes (e.g., the Pride Flag, a banner honoring emergency medical service workers).
- In 2017, Harold Shurtleff, director of Camp Constitution, asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community, and wished to raise what he described as the 'Christian flag.'
- The commissioner of Boston’s Property Management Department worried that flying a religious flag at City Hall could violate the Establishment Clause, as he found no past instance of the city’s having raised such a flag.
- The commissioner told Shurtleff that Camp Constitution could hold an event on the plaza but could not raise their Christian flag during it.
Procedural Posture:
- Harold Shurtleff and Camp Constitution (petitioners) sued the City of Boston (respondents) in District Court, alleging that Boston’s refusal to let them raise their flag violated, among other things, the First Amendment’s Free Speech Clause.
- The District Court held that flying private groups’ flags from City Hall’s third flagpole amounted to government speech, so Boston could refuse petitioners’ request without running afoul of the First Amendment.
- Shurtleff and Camp Constitution appealed the District Court’s decision to the United States Court of Appeals for the First Circuit.
- The First Circuit affirmed the District Court's ruling.
- Shurtleff and Camp Constitution then petitioned the U.S. Supreme Court for a writ of certiorari, which was granted.
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Issue:
Does a city's practice of allowing private groups to fly flags of their choosing on a city flagpole, without actively controlling or shaping the messages, constitute government speech, thereby permitting the city to deny a request to fly a religious flag without violating the Free Speech Clause?
Opinions:
Majority - The Court
No, Boston's flag-raising program does not express government speech, and therefore, Boston could not, consistent with the Free Speech Clause, deny petitioners’ flag-raising request. The Court applied a holistic inquiry to determine whether the government intended to speak for itself or regulate private expression, looking at the history of the expression, the public's likely perception of who is speaking, and the extent to which the government actively shaped or controlled the expression, citing Walker v. Texas Div., Sons of Confederate Veterans, Inc. and Pleasant Grove City v. Summum. While the history of flag flying and public perception might suggest government speech, the most crucial factor was Boston’s lack of active control over the flag raisings or the messages conveyed. Boston told the public it sought 'to accommodate all applicants' in its 'public forums,' and its application form did not request flag content. The city’s practice was to approve all requests without exception until Shurtleff’s application and had no written policies regarding flag content. This demonstrates a lack of the 'sufficient' control required to deem the expression government speech, unlike the monuments in Summum or license plates in Walker. Since the program constituted a forum for private expression, Boston’s refusal based on the religious viewpoint of the 'Christian flag' violated the Free Speech Clause.
Concurring - Justice Kavanaugh
Yes, Boston violated the First Amendment by denying the request because a government official mistakenly believed allowing a religious flag to fly briefly would violate the Establishment Clause. Justice Kavanaugh emphasized that a government does not violate the Establishment Clause merely by treating religious persons, organizations, and speech equally with secular ones in public programs, benefits, or facilities, citing cases like Zelman v. Simmons-Harris and Good News Club v. Milford Central School. On the contrary, a government violates the Constitution when it excludes religious persons, organizations, or speech because of religion from such public programs. Under the Constitution, religious expression cannot be treated as 'second-class.'
Concurring_in_judgment - Justice Alito
Yes, Boston violated the First Amendment's guarantee of freedom of speech when it rejected Camp Constitution’s application. Justice Alito agreed with the outcome but criticized the Court's reliance on the 'triad of factors' from Walker and Summum as a general test for government speech, arguing it can obscure the true question: whether the government is speaking instead of regulating private expression. He proposed that government speech occurs only if the government purposefully expresses its own message through authorized persons and does not rely on means that abridge private speech. He concluded that Boston's program was plainly private speech within a 'public forum' created by the City. The application materials, the city's consistent approval of all prior requests, and the diverse and contradictory array of flags flown indicated that the City disclaimed any intent to communicate its own message. Therefore, Boston's denial of Shurtleff’s application due to its religious viewpoint constituted impermissible viewpoint discrimination, and the Establishment Clause does not justify such exclusion of religious speech from open forums.
Concurring_in_judgment - Justice Gorsuch
Yes, Boston violated the First Amendment because it discriminated against religious speech, driven by a mistaken fear of violating the Establishment Clause under the defunct Lemon v. Kurtzman test. Justice Gorsuch joined the judgment, primarily attributing Boston’s error to its reliance on the 'Lemon test,' which he described as an 'anomaly and a mistake' that 'produced only chaos' and bypassed original meaning. He argued that the Court has 'long since interred Lemon' and returned to analyzing the Establishment Clause through 'historical practices and understandings,' as seen in cases like Town of Greece v. Galloway and American Legion v. American Humanist Association. By following Lemon’s 'reasonable observer' test, Boston felt compelled to discriminate against religious speech to avoid perceived Establishment Clause liability, thus creating a real First Amendment violation. He noted that historically, public displays of religious symbols were not considered establishments of religion, and the Constitution was designed to ensure 'respect and tolerance' for religion, not to erase it from public life. He provided 'hallmarks' of founding-era establishments (e.g., government control over doctrine, mandated attendance, financial support preference) to demonstrate that merely allowing religious flags does not equate to an establishment.
Analysis:
This decision significantly clarifies the boundary between government speech and private speech, particularly in the context of public forums. It signals that courts will scrutinize claims of government speech more rigorously, emphasizing the need for active government control and shaping of the message. The unanimous outcome and multiple concurrences, especially those forcefully rejecting the Lemon v. Kurtzman test's application to the Establishment Clause, further solidify its diminishing relevance and strongly discourage governments from using Establishment Clause concerns to justify viewpoint discrimination against religious speech. This case will likely empower private religious expression in public spaces and force governments to either truly control the message or open the forum neutrally to all viewpoints.
