As part of Halloran Sage’s continuing efforts to inform our clients of significant developments in the law, this is an update about a recent United States Supreme Court decision concerning the issue of whether the City of Boston’s refusal to fly a Christian Flag violated the Free Speech Clause of the First Amendment, and whether the exclusion of private speech through this refusal constitutes impermissible viewpoint discrimination. Municipalities may find the following review of this decision useful in considering their own flag flying policies.
The case, Shurtleff v. City of Boston, involves Boston city hall’s flag flying program for public events. The city’s policy was to allow event organizers to fly a flag of their choosing at the city hall plaza, in addition to the United States and Massachusetts flags, with the chosen flag replacing Boston’s flag for the duration of the event. In July 2017, Harold Shurtleff, the director of Camp Constitution, asked to hold an event to commemorate the Christian community’s civil and social contributions to society. Shurtleff attached a photo of a flag with a red cross on a blue field and requested it be flown during the event. The Commissioner of Boston’s Property Management Department rejected the proposed flag but stated the event could proceed if they proposed a different flag, believing that flying a religious flag would violate the Constitution’s Establishment Clause. Camp Constitution refused and did not hold the event.
Shurtleff and Camp Constitution (“Petitioners”) sued the City of Boston and the Commissioner, arguing that their refusal to fly the flag violated the Free Speech Clause. The District Court denied Petitioners’ request for the City of Boston to fly their chosen flag, concluding that Boston could properly deny the request because flying flags from the third pole amounted to government speech. The First Circuit Court of Appeals affirmed this holding. The Supreme Court agreed to hear the Petitioners’ appeal.
The Supreme Court’s majority opinion, written by Justice Stephen Breyer, held that Boston’s flag-raising program does not constitute government speech because the refusal to fly petitioners’ flag constituted religious viewpoint discrimination under the Free Speech Clause. Justice Breyer first discussed the history of flag-raising and recognized that flags often convey governmental messages, discussing how boundaries between government speech and private expression are blurred when the government invites people to participate in such a program. Justice Breyer sides with Petitioners on the key issue of Boston’s control over the program, stating the following:
For one thing, Boston told the public that it sought ‘to accommodate all applicants’ who wished to hold events at Boston’s ‘public forums,’ including on City Hall Plaza . . . The city’s practice was to approve flag raisings, without exception. It has no record of denying a request until Shurtleff’s . . . [T]he city’s lack of meaningful involvement . . . leads us to classify the flag raisings as [private speech].). Shurtleff v. City of Boston, Massachusetts, 142 S. Ct. 1583, 1592 (2022).
The majority decision suggests the Court may have decided differently if Boston established and followed a consistent policy of accepting or denying certain flags, with Justice Breyer noting that there is nothing preventing Boston from changing its policies. Justice Gorsuch concurred with the majority opinion, stating that this should function as a “cautionary tale” in balancing the relevant constitutional issues. Gorsuch sympathized with local officials such as Boston’s commissioner, observing that as a result of the previously unclear caselaw on this matter, “risk-averse local officials found . . . [t]o avoid Establishment Clause liability, they sometimes felt they had to discriminate against religious speech and suppress religious exercises. But those actions, in turn, only invited liability under other provisions of the First Amendment.” Shurtleff v. City of Boston, Massachusetts, 142 S. Ct. 1583, 1605 (2022).
While the majority’s decision establishes precedent unless and until the Supreme Court chooses to reconsider these issues, Justice Gorsuch’s assessment of Boston’s mistakes may be helpful to municipalities who find themselves re-considering their own flag-flying policies.
In Connecticut, there is no statutory or legal restriction on flying flags on municipal property, other than that the U.S. and Connecticut flags should be flown at the highest levels. Some municipalities have established policies to avoid or minimize controversy in the event a particular organization or citizen group requests their flag be flown. Established policies, when strictly followed, prevent the problematic issue of “picking and choosing” of which flags are flown, as the Boston Commissioner believed in good faith that flying the petitioners’ flag violated the Establishment Clause of the Constitution.
Consultation with an attorney regarding any policies, plans, and proposals drafted in light of this holding are encouraged, such as consultation before considering a potentially controversial flag request.
For more information, or if you would like to consult an attorney with specific questions, we encourage you to contact a member of Halloran Sage’s Municipal Law practice group.