“We conclude that, overall, Boston did not make the rise and wave of private group flags a form of government speech,” Judge Stephen Breyer wrote. The case was filed in 2018 after a Boston official rejected a Camp Constitution group request to raise a flag – described as “Christian” in the petition – on one of three flagpoles outside Boston City Hall. The group is an exclusively voluntary association that seeks to “enhance the understanding of the country’s Judeo-Christian moral heritage”.
Central to the case was whether the flagpole was taken as an example of government speech. If so, the city has the right to restrict appearances without violating the principles of freedom of speech. The Free Speech clause of the Constitution restricts the governmental regulation of private speech, does not regulate governmental speech. But if, on the other hand, the projection is tantamount to private speaking, in a government-created forum where others are invited to express their views, the government can not discriminate on the basis of the opinion of one of the speakers. Breyer concluded that the flag-raising program “does not reflect government discourse.”
All the judges agreed on the outcome of the case, but three conservative judges said they had different reasons to rule against Boston.
Judge Samuel Alito, writing about Judges Neil Gorsuch and Clarence Thomas, said that although the tribunal relied on “history, public perception of who is speaking and the extent to which the government has exercised control over speech” to determine that the flag The growth plan was not tantamount to a government discourse, it would have analyzed the case on the basis of a more precise definition of what constitutes a government discourse.
Under a narrower definition of government speech, Alito wrote that it appears “if – but only if” a government “deliberately expresses its own message through persons authorized to speak on its behalf.”
He said the Boston flag program “could not be a government speech” because the city had never replaced private speakers and that the various flags fluttering under the program “reflected a dizzying and contradictory range of perspectives that could not be understood as expressing the message from a single Speaker. ”
Boston occasionally allows private groups to carry flags, often flags from different countries, on one of the flagpoles as part of a program to celebrate various Boston communities. Flag-raising events are related to national and other cultural celebrations or the arrival of officials from other countries or to celebrate historical events. According to Camp Constitution, Boston had approved another 284 flags that private organizations had tried to raise as part of the program over the past 12 years, and no previous applications had been rejected.
In a case of unusual comrades, the conservative Christian group that sought to wave its flag won the support of both the Biden government and the American Civil Liberties Union.

“A purely religious message”

Boston resident Hal Shurtleff, the founder of Camp Constitution, emailed senior city special events officials in 2017 asking for permission to raise the Christian flag and give a presentation to local clergy focusing on Boston history. At that time, there was no written policy for handling applications and the city had never refused a flag hoisting request. The city decided that it had no practice of carrying a religious flag in the past, and the request was rejected due to concerns that the city would appear to be embracing a particular religion in violation of the Constitution’s founding clause. After the controversy, the city created its first written policy for the Raising of the Flag.
Shurtleff sued the city, arguing that the denial of the flag violated his rights to freedom of speech under the First Amendment.
A district court ruled in favor of the city, arguing that the city was justified in rejecting the Camp Constitution flag because the demonstration was tantamount to government speech. A federal appeals court confirmed the district court, arguing that raising the Christian flag “would threaten to communicate and approve a purely religious message on behalf of the city.”
Surtlef appealed the ruling to the Supreme Court, arguing that Boston had violated the First Amendment because flagpoles were the equivalent of a public forum, and his group was rejected because of its religious affiliation.
“The exclusion of the Camp Constitution flag from the City Hall Flag Poles forum just because the flag was called ‘Christian’ is an unconstitutional discrimination,” his lawyer said.
Mathew Staver, Shurtleff’s lawyer, told the judges that the city had no control over messages sent during a temporary flag-raising event that was open to other groups. Proponents of her case have been working to make the actual transcript of this statement available online. .
He said that like the other flags that have flown before, the flag will be considered the flag of the group “and therefore, the city can not reject it because the flag is religious”.
Attorney General Elizabeth Prelogar also told the judges that the flag-raising program was not tantamount to government speech in part because the city usually had no control over the choice of flags.
The city responded to court documents by saying the flagpole display was not a public forum open to all.
Douglas Hallward-Driemeier, a lawyer representing Boston, told judges that the flagpole “in a prominent position in the city’s government headquarters is a means by which the city communicates its own message and is not simply delivered.” in private places as a forum. to utter their own messages, including those contrary to those of the city. ”
He said the goals of the flag-raising program were to honor flags from many countries and communities to create an environment in the city where “everyone feels included and treated with respect”.
“In a democratic system like ours, it is extremely important that governments retain the right and ability to speak on behalf of their constituents and to take a position and favor certain views when they do,” said Holward-Dreimer. He also said that the city has stopped the flag-raising program while the appeal process is evolving “to ensure that it can not be forced to use the city flagpole to publish messages contrary to its own”. This story has been updated in more detail on Monday.