The U.S. Supreme Court seemed primed to rule against Boston for refusing to allow a conservative Christian organization to fly a flag in front of city hall under a program that allows third parties to do so temporarily.
Most justices at Tuesday’s argument seemed to think Boston had created a “public forum” when it opened up a flagpole under the program, curtailing government control over the “speech” that takes place there. Even the city acknowledged it would lose if that interpretation held up.
“If by miscommunication the flagpoles were deemed a public forum, the city acknowledges it cannot exclude religious speech,” said Ropes and Gray’s Douglas Hallward-Driemeier, who represented Boston.
Shurtleff v. Boston is one in a line of cases trying to sort out disputes over what constitutes government and public speech, and what limits authorities can set.
The line hasn’t always been clear. For instance, the court since 2009 has determined that a permanent monument in a public park and specialty license plates are government speech over which officials retain significant power to regulate. On the flip side, the court ruled in 2017 that government-issued trademarks are not, and the justices appeared likely to find Boston’s flag program more like that.
“You’re saying, that we should recognize as government speech a program that basically now says, and previously, we welcome all comers except for
the most reprehensible discriminatory speech and religious speech,” Justice Elena Kagan said to Hallward-Driemeier. Why “should we understand that to be government speech?”
The justices signaled they thought the city still could take additional steps to avoid having to fly any and all flags by reframing the policy, noting that no “city is going to want to put up a swastika or a KKK flag or something like that,” Kagan said.
BLM, Proud Boys
Whether something is considered government speech has traditionally turned on whether it is the kind governments have historically conveyed, whether a reasonable viewer would interpret the speech as coming from the government, and the degree of control the government has over what’s said or displayed.
“If you’re on the street in Boston and looking over to City Hall and see these” flagpoles, “why would you think that this is anything other than government flying a flag?” Kagan said in an exchange with advocate Matt Staver of Liberty Counsel, who represented the religious group.
“Because an informed observer would understand the history, the policy,” Staver started to answer.
“Well, that is very, very informed,” Kagan interjected. “I mean, that is not your typical person who walks the street in Boston.” And Justice Sonia Sotomayor called it a “ficton.”
But Justice Amy Coney Barrett thought the control element “does almost all of the work,” rather than the other two factors.
“Really it’s the informed observer knowing about the degree of control that the government exercises that, if we’re creating this fiction, makes the informed observer think or not think that the speech is actually uttered on behalf of the government,” Barrett said.
The Biden administration, weighing in on the side of the religious group, agreed, saying the city’s hands aren’t tied because it can always increase its control over the speech at issue in the program.
Still, governments “can’t draw lines based on viewpoints,” said Justice Department lawyer Sopan Joshi said, who argued as an friend-of-the-court in support of the religious group.
“So, if the program is such that, for example, a group could raise a Black Lives Matter flag, they probably would have to be able to raise a Proud Boys flag,” he said. “I mean, that’s just what the First Amendment demands, even in a non-public forum.”
Ultimately, the case seems likely to come down to whether the city discriminated against all religions by refusing to fly religious flags.
“After 12 years with 284 flag-raising approvals, no denials, and usually no review, one word caught the attention of a Boston official, the word ‘Christian’ on the application,” Staver said.
Although the case is a free speech case at heart, it implicates religion as well, and in particular how far governments can go to distance themselves—or stay neutral—on the topic of religion.
Several justices suggested that Boston’s decision to stay neutral on religion to avoid problems with the Constitution’s Establishment Clause, did amount to discrimination under the Constitution’s other religion clause, the Free Exercise Clause.
The court under Chief Justice John Roberts has repeatedly provided a robust reading of the Free Exercise Clause, which says governments can’t inhibit a person’s religion, at the expense of the Establishment Clause, which says government’s can’t become too entangled with religion.
“And it seems like we’ve had case after case after case that has tried to correct that misimpression of the Establishment Clause, and that seems to me what the root cause is here,” Justice Brett Kavanaugh said.
The case is Shurtleff v. Boston, U.S., No. 20-1800.