Shurtleff v. City of Boston
Issues
Whether the City of Boston violated the First Amendment by denying a private party’s application to fly a Christian flag on a flagpole in front of Boston City Hall when the City had approved all 284 previous flag-raising applications; whether the flagpole is a designated public forum for the purposes of the First Amendment; and whether designating a private party’s flag in a public forum government speech inappropriately expands the definition of government speech.
In this case, the Supreme Court must decide whether the City of Boston violated the First Amendment by refusing to fly a flag bearing a Latin cross on a flagpole in front of City Hall. Boston allowed private parties to apply for permission to raise and display their flags on one of three flag poles in front of City Hall. Before Boston rejected Petitioner Harold Shurtleff’s application to fly a flag bearing a Latin cross, it had approved every one of the 284 applications it received. Shurtleff argues that Boston designated the flagpole as a public forum for private speech and committed unconstitutional viewpoint discrimination by refusing to fly Shurtleff’s flag because it bore a Christian symbol. Boston responds that, because the flags flown in front of City Hall are government speech, not private speech, Boston could evaluate flag-raising applications with reference to content and viewpoint, without running afoul of the First Amendment. Interested parties on either side of the case warn of potential chilling effects on private speech, as well as the risk of hostility from the government or from private parties.
Questions as Framed for the Court by the Parties
(1) Whether the United States Court of Appeals for the First Circuit’s failure to apply the Supreme Court’s forum doctrine to the First Amendment challenge of a private religious organization that was denied access to briefly display its flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, conflicts with the Supreme Court’s precedents holding that speech restrictions based on religious viewpoint or content violate the First Amendment or are otherwise subject to strict scrutiny and that the establishment clause is not a defense to censorship of private speech in a public forum open to all comers;
(2) whether the First Circuit’s classifying as government speech the brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, unconstitutionally expands the government speech doctrine, in direct conflict with the court’s decisions in Matal v. Tam, Walker v. Texas Division, Sons of Confederate Veterans, Inc. and Pleasant Grove City v. Summum; and
(3) whether the First Circuit’s finding that the requirement for perfunctory city approval of a proposed brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants with hundreds of approvals and no denials, transforms the religious organization’s private speech into government speech, conflicts with the Supreme Court’s precedent in Matal v. Tam, and circuit court precedents in New Hope Family Services, Inc. v. Poole, Wandering Dago, Inc. v. Destito, Eagle Point Education Association v. Jackson County School District and Robb v. Hungerbeeler.
The City of Boston (“Boston”) owns and operates three flagpoles in City Hall Plaza, all of which stand conspicuously in front of the seat of its municipal government. Shurtleff v. City of Boston, at 82. The first flagpole flies the United States and POW/MIA flags, the second flies the Commonwealth of Massachusetts flag, and the third typically flies Boston’s flag. Id.
Additional Resources
- Adam Liptak, A Public Flagpole, a Christian Flag, and the First Amendment, New York Times (Nov. 29, 2021)
- Debra Cassens Weiss, Supreme Court will hear case of Christian group that wanted to fly its flag at Boston City Hall, ABA Journal (Oct. 1, 2021).
- Sean Philip Cotter, Boston ‘Christian flag’ lawsuit taken up by Supreme Court, Boston Herald (Sep. 30, 2021).