Commentary: Unanimous Supreme Court Flies Flag for Free Speech in Case Against City of Boston

In a rare unanimous ruling on Monday, the Supreme Court secured a major victory for free speech.

In the opinion in Shurtleff v. Boston, authored by retiring Justice Stephen Breyer, the court ruled that the city of Boston violated the Constitution when it prohibited a group from flying a Christian flag on a flagpole it had held open to other groups and their flags.

The court determined that simply by permitting private groups to fly their flags on the City Hall flagpole, the city was not endorsing any message behind those flags and that, therefore, the flag and what it represents did not constitute government speech.

As a result, its refusal to allow a religious group to raise its flag simply because of its religious viewpoint was a violation of the Free Speech Clause of the First Amendment.

Boston had historically allowed groups to raise a flag on one of the city’s three flagpoles in conjunction with ceremonies held on the City Hall plaza. Over a period of 12 years, between 2005 and 2017, the city approved the flying of 50 different flags in conjunction with 284 events.

Its unofficial policy was to accommodate all applicants. But when Harold Shurtleff, director of a group called Camp Constitution, asked to fly what he described as a “Christian flag” in conjunction with an event on the plaza celebrating the civic and social contributions of the Christian community, the city denied his request, claiming that flying the flag would violate the Constitution’s Establishment Clause by “promot[ing] a specific religion.”

Notably, before Shurtleff’s request, the city had never denied other groups’ requests to fly a flag, including the “Pride” flag, the flag of a local bank, a flag for emergency medical service workers, and many others.

The First Amendment’s protections regarding the right to speak and assemble vary based on the speakers’ chosen forum.

In its 1983 ruling, Perry Education Ass’n v. Perry Local Educators’ Ass’n, the high court divided forums into three types: traditional public forums, limited or designated public forums, and nonpublic or private forums.

The city acknowledged that by allowing the public to participate in flag-flying on the plaza, it had established a traditional “public forum.” In a traditional public forum, the government’s content-based restrictions on speech are considered highly suspect.

But, as Breyer wrote in Shurtleff, “the line between a forum for private expression and the government’s own speech is important, but not always clear.”

In assessing Shurtleff’s claim, Breyer wrote that when the government invites the public to participate in a program, the court has to look at particular “holistic” factors to determine whether the government intends to speak for itself, or to regulate another’s private expression.

These, Breyer wrote, were derived from the Supreme Court’s 2015 decision, Walker v. Texas Division, Sons of Confederate Veterans, and included the history of the particular expression, the public’s perception as to who is speaking (the government or a private person), and the extent to which the government has actively shaped or controlled the message.

Breyer stated the record showed that Boston did not actively control the flag-raisings or shape the messages that the flags sent. In fact, the city had no written policy or guidance about what flags groups could fly and what those flags could communicate.

In addition, all flag-raisings had been approved prior to Shurtleff’s request in 2017. Therefore, the court held, the city’s refusal to let Shurtleff fly his flag was viewpoint discrimination and violated the Free Speech Clause.

Breyer wrote: “When the government encourages diverse expression—say, by creating a forum for debate—the First Amendment prevents it from discriminating against speakers based on their viewpoint. … [I]t may not exclude speech based on ‘religious viewpoint; doing so ‘constitutes impermissible viewpoint discrimination.’”

In a separate, concurring opinion—perhaps the shortest we’ll see all term—Justice Brett Kavanaugh took one paragraph to distill the case to its essence, writing: “Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”

Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, filed a separate opinion concurring in the judgment, but disagreeing with the court’s decision to analyze the case under the terms from the Walker case.

He argued that to use those factors as a test obscured the appropriate—and simple—inquiry in First Amendment cases emanating from challenges under the government-speech doctrine; namely, whether the government itself is speaking or whether it is regulating someone’s private expression.

These three justices believe that relying on Breyer’s “factorized approach” doesn’t present a principled way of deciding First Amendment cases. And, Alito added, to examine the degree of control over speech in a government setting could allow “governments to exploit public expectations to mask censorship.”

Gorsuch filed his own opinion centering on what he characterized as a misunderstanding of the court’s Establishment Clause precedent, which he believed was the real problem in the case.

His opinion harkened back to oral arguments on April 25 in Kennedy v. Bremerton School District, when former U.S. Solicitor General Paul Clement, counsel for coach Joe Kennedy, argued that the court’s Establishment Clause test, derived from Lemon v. Kurtzman (1971), needs to be “cut in half,” and was a “stubborn fruit.”

Gorsuch piled on in Shurtleff, arguing that Lemon has produced only chaos—and “new business for lawyers and judges.” Despite the court’s recognition of Lemon’s many problems, and what Gorsuch called the court’s abandonment of the case (which seemed to imply that Lemon is overruled at least in practice, if not in fact), the city of Boston made a costly mistake in relying on it anyway.

Breyer, 83, will retire at the end of this term next month, but remains on the bench pending the swearing-in of President Joe Biden’s Senate-confirmed nominee, federal Judge Ketanji Brown Jackson. He will continue to participate in this term’s remaining high-profile cases on abortion, free exercise, free speech, and the Second Amendment.

Originally published by The Daily Signal. Republished with permission.