(The Conversation) — There are three flagpoles outside Boston City Hall. One flies the United States flag. Another flies the Massachusetts state flag. What can – and can’t – fly from the third is an issue that the Supreme Court considered during oral arguments on Jan 18.
The case, Shurtleff v. Boston, addresses whether the city violated the First Amendment by denying a request to temporarily raise the Christian flag on a flagpole outside City Hall, where Boston has temporarily displayed many secular organizations’ flags.
During oral arguments, the justices and the parties agreed that if the flagpole is a public forum open to all comers, then the city of Boston would be unable to deny a request to temporarily raise a religious flag, like the Christian flag.
The key question in the case then is this: is the third flagpole a public forum open to all comers or is it government speech?
To answer this question, the court’s decision, which will be handed down later this term, will likely clarify one or more free speech doctrines that I study in my work on free speech and the First Amendment. Such clarification of the court’s free speech doctrine would likely impact how courts nationwide interpret the First Amendment’s guarantees.
Boston permits groups to request that a flag temporarily fly alongside the American and Massachusetts flags at City Hall to mark special occasions, replacing the city flag that usually occupies the third post. Past examples include flag requests from the Chinese Progressive Association and the National Juneteenth Observance Foundation.
In 2017, Camp Constitution, a New Hampshire-based organization, requested to fly the Christian flag, which has a cross in the upper left corner and was designed by a Sunday school teacher and a missionary executive in the late 1800s. Today, some Protestant denominations display the flag inside their churches.
Camp Constitution asked to fly the flag as part of a planned event “to celebrate the civic contributions of Boston’s Christian community.” The organization says its mission is “to enhance understanding of our Judeo-Christian moral heritage, our American heritage of courage and ingenuity, including the genius of our United States Constitution, and the application of free enterprise.”
Boston denied the request. The city cited concerns that raising the Christian flag at Boston City Hall would violate the First Amendment’s establishment clause, which bars the government from promoting particular religions over others. After making a second request, which Boston also denied, Camp Constitution sued.
A federal district court and the First Circuit Court of Appeals sided with Boston on the grounds that flying a flag on the third flagpole was government speech, not private speech – and therefore the city was entitled to refuse to fly the Christian flag on its flagpole.
Camp Constitution appealed to the Supreme Court, which granted review.
The case’s outcome will likely hinge on the Supreme Court’s determination of whose views are represented by the flagpole outside City Hall: the private organization whose flag is temporarily flying, or the government. In other words, this case is about who is “speaking” when that flag goes up, and whose free speech rights are protected.
If the court determines that Camp Constitution is speaking, then a framework the court has developed, known as the “public forum doctrine,” will apply. This would likely result in a ruling favoring Camp Constitution.
If the court determines that the city of Boston is speaking, then the court’s government speech doctrine will apply. This would likely result in a ruling favoring Boston.
Federal, state and local governments oversee a wide variety of public spaces, such as parks, universities and courthouses, just to name a few. These areas serve different functions, some of which require more regulation of speech than others.
The Supreme Court has organized government spaces into several categories, each of which permits different types of restrictions on free speech. This set of categories and permitted restrictions is referred to as the public forum doctrine.
Spaces like public parks and sidewalks are considered public forums, the category that permits the fewest restrictions on speech. In a public forum, a government can never restrict speech based on viewpoint – specific positions on a topic – and is severely limited as to when it can restrict speech based on content – a given topic.
Normally, a flagpole outside a city hall would not be considered a public forum. However, the Supreme Court also recognizes a separate category, “designated public forums,” which are spaces the government converts into public forums. In a designated public forum, free speech regulation is limited in the same way it would be in a public forum.