In a recent decision with major implications for municipal governments across the country, the U.S. Supreme Court ruled that the City of Boston's refusal to fly a Christian flag on a city flagpole constituted viewpoint discrimination regulation on speech, which the First Amendment forbids.
The case revolves around a flagpole in front of Boston's city hall. The flagpole ordinarily flies typical governmental flags, such as the flags of the City of Boston and the State of Massachusetts; however, the city also invited citizens to apply to have different flags of their own choosing flown for a day. Under this “one-day guest flag” program, Boston has flown, inter alia, LGBTQIA+ flags, a flag commemorating the Battle of Bunker Hill, and the flags of various other nations with close ties to the United States such as Mexico and Italy.
The controversy arose when Harold Shurtleff of the organization Camp Constitution asked the city to fly a Christian flag, to celebrate the civic contributions of Christians to Boston and the United States. The city declined the request, stating that flying a Christian flag from a government flagpole would violate the Establishment Clause of the First Amendment. The case eventually reached the U.S. Supreme Court, who issued their decision in Shurtleff Et Al. v. City of Boston Et Al., 142 S. Ct. 55 (2022) last month.
Justice Breyer, writing for the majority, held that the city's refusal to fly Shurtleff's Christian flag constituted viewpoint discrimination in violation of the First Amendment. Under basic First Amendment free speech doctrine, viewpoint discrimination occurs when the state regulates or prohibits speech based on the specific ideas the speech expresses. While the Supreme Court has regularly upheld reasonable speech regulations that discriminate on the basis of time, place, and manner (when, where, and how all speech can or cannot occur, i.e. no megaphones after 9:00 PM), viewpoint discrimination is deeply disfavored, and viewpoint discrimination restrictions on speech are presumptively unconstitutional.
Shurtleff argued that the city's flagpole was more akin to a public square, where anyone can come to proclaim their message, while the city argued that the flagpole was more analogous to an official governmental message board, and therefore by flying the Christian flag, the city would be endorsing one religion over others. The Court agreed with Shurtleff that the flagpole was more like a public square, since the general public has used the flagpole to express their own messages, and a decision to exclude Shurtleff from conveying their message in a public square on the basis of the content of the message violated his constitutional rights.
Justice Breyer clearly pointed out that what doomed the city in this case was that the flagpole policy had apparently been to simply honor all requests that citizens made—other than Shurtleff, the city could not name one other flag request that it denied. This meant that excluding Shurtleff because of the message and symbolism of his flag could not be justified as the application of any neutral policy. Justice Breyer pointed out that the city was free to change its policy at any time, for example, to a policy of only flying governmental flags, thereby avoiding the potential for a constitutional violation to arise from the misapplication of the city's discretion.
Municipal entities should take careful note of this decision, and adjust their policies with respect to flagpoles to avoid liability for a constitutional violation. The safest bet for all municipalities now is to adopt a policy that does not permit any flags other than governmental flags chosen by the city to be flown. Under no circumstances should municipalities allow citizens to apply to have their own “guest flags” flown unless there are clear and unambiguous, neutral criteria for approving or denying these requests; however the safest bet is to simply fly the flags of municipality, state, or the United States, and no other flags.
For legal advice on this issue, or any issue of municipal liability, Rose Kallor attorneys stand at the ready to assist you.