In Shurtleff v. City of Boston, published May 2, 2022, a unanimous U.S. Supreme Court reversed a district court and appellate court decision that the defendant city did not violate the First Amendment by declining to fly a religious flag. The Boston City Hall has three flagpoles. One flies the American flag, the second flies the Commonwealth of Massachusetts flag, and the third usually flies the city flag. For years, the city has allowed groups to hold ceremonies on the city hall plaza and fly flags of the groups' choice, without city involvement in choosing or approving flags. The plaintiff asked to hold an event on the plaza and fly what he described as the "Christian flag"--a red cross on a blue field against a white background. The city declined, out of concern that flying a flag that favored a particular religion at city hall would violated the First Amendment's Establishment clause. The plaintiff sued the city, alleging violation of the First Amendment's Speech Clause. The district court granted the city judgment, and the appellate court affirmed.
The Supreme Court held that the city had violated the plaintiff's free-speech rights. The Free Speech Clause does not prevent the government from declining to express a view. The question was whether flying a flag on the third flagpole was government speech or private speech. The boundary between government speech and private expression can blur when the government invites people to participate in a program. In those situations, the court conducts a holistic inquiry to determine whether the government intends to speak for itself, or to regulate private expression. The court looks to the history of the expression at issue; how the public is likely to perceive who is communicating; and the extent to which the government has actively shaped or controlled the expression. Applying that analysis here, the court held that a government flying a flag at the seat of government is traditionally seen as government speech. The public's perception of the flags under the circumstances did not resolve the matter. The most salient facts were that Boston neither actively controlled the flag raisings nor shaped the messages the flags sent. The city had never refused to fly a group's flag as part of a ceremony until it refused the plaintiff's. This led the Court to conclude the third-party flag raisings were private, not public, speech. The city's refusal to let the plaintiff fly the flag based on a religious viewpoint violated the plaintiff's Free Speech rights by engaging in impermissible viewpoint discrimination. Six justices joined the majority opinion. One of those justices, and two others, filed concurring opinions.
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