BOSTON (CN) — The Supreme Court will hear arguments Tuesday on whether Boston can refuse a citizen’s request to fly a flag emblazoned with a red Latin Cross over City Hall when the city has previously accepted flags honoring Juneteenth, Chinese immigration, gay pride and a host of other messages rife with political implications.
Although the case involves a single flagpole, it could have a profound effect on the line between church and state, implicating speech at thousands of public spaces across the country. The appeal asks whether such spaces should be considered public forums where private citizens can speak or areas where a private citizen’s speech is “government speech.” If the latter, then the First Amendment doesn’t apply and the government can censor anyone it doesn’t like.
The government-speech rule is “an incredibly powerful doctrine” that can “cut off First Amendment claims at their knees,” said David Hudson, a professor at Belmont University College of Law in Nashville.
Rick Garnett, a professor at Notre Dame Law School, authored an amicus brief cataloguing governments’ many recent efforts to squelch religious speech, including the University of Iowa deregistering religious student groups, Florida State University removing a member of the student senate for sharing religious views in text messages and a high school in Washington state that punished a football coach for praying on the field after games.
In Tampa, a transit authority refused to let a synagogue advertise a show called “Chanukah on Ice” along a bus route. All these actions could implicate the government-speech rule.
The case has drawn two dozen amicus briefs ranging from a consortium of 12 states to the ACLU, the American Legion, the Anti-Defamation League and the National Council of the Churches of Christ in the USA.
At the crux of the controversy are three 83-foot-tall flagpoles outside Boston’s City Hall, a leading example of brutalist architecture from the late 1960s. One flagpole always flies the U.S. flag, and one always flies the state flag. The third usually flies the city flag, but citizens can petition to temporarily raise another flag.
Between 2005 and 2017, the city approved each of the 284 requests it received to fly other flags. Then a man named Howard Shurtleff proposed flying a Christian flag — specifically a flag of a red Latin cross — for a ceremony to mark the signing of the U.S. Constitution on September 17, 1787.
Speakers at the ceremony would promote racial reconciliation and recognize “the contributions Boston's Christian community has made to our city's cultural diversity.”
The city said no, and Shurtleff sued. Both a U.S. District Court and the First Circuit sided with the city, setting the stage for next week's hearing in Washington.
The question is whether the city violated the First Amendment by curtailing Shurtleff’s free speech and discriminating against him on the basis of religion, which in turn depends on whether the flagpole is a public forum where citizens have the right to speak or a purely government forum where the city is allowed to choose what messages it wants to send.
The Supreme Court is expected to clarify two of its recent cases, one from 2009 in which it said that a city didn’t have to accept a monument in a public park proposed by the quasi-religious group Summum just because it had allowed other privately funded monuments, and one from 2015 in which it allowed the state of Texas to reject a specialty license plate with a Confederate flag.
In both cases the court said the government was the one speaking, not Summum or the people who would drive around with the license plate.
On the other hand, in 2017 the court said the government couldn’t reject a trademark for an Asian rock band called The Slants on the grounds that the name was ethnically derogatory because it was the band and not the government that was speaking.
It’s worth noting that all three cases were argued before the addition of President Trump’s three nominees to the court. Garnett, for one, doesn’t think the change of personnel will matter much, noting that, “as a whole, the Supreme Court has become fairly consistent when it comes to viewpoint-based restrictions on private speech.”
The First Circuit cited the first two cases to hold that the flagpole was purely government speech.
Boston is "entitled to select the views that it wants to express," U.S. Circuit Judge Bruce Selya, an 87-year-old Reagan appointee, wrote for the three-judge panel.
Selya also said that, far from discriminating against religion, the city was respecting the First Amendment by choosing not to promote any particular religion. He noted that none of the 284 previous flag requests were for religious flags and instead involved flags of a foreign country, a civic organization or a secular cause.
Flying a Christian flag “could be deemed to constitute a religious statement on the city's part,” Selya said, and refusing to fly it “simply cannot be construed to suggest the disparagement of the plaintiffs' religion.”
But Shurtleff is arguing that by accepting 284 out of 284 requests, the city had established the flagpole as a de facto public forum.
He also notes that the city has flown foreign flags on more than 100 occasions to commemorate citizens’ diverse backgrounds even though it’s against Massachusetts law to fly a foreign flag over a local government building. The only way the city could not have been consistently breaking the law is if the flagpole were a forum for private speech rather than government speech, he claims.
A ruling from the Supreme Court is expected by June.
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