Whose Flagpole is it, Anyway? In Shurtleff v. City of Boston, the Supreme Court has Ruled that Boston Impermissibly Denied a Private Group’s Request to Fly the Christian Flag.
Public entities receive requests to place signs on public properties. Unlike private property owners who have discretion as to what message they wish to convey, public bodies are constrained by complex constitutional requirements that turn on the specific facts of each case. A decision issued by the United States Supreme Court on May 2, 2021, in Shurtleff v. City of Boston (“Shurtleff”) illustrates the consequences of granting the request of one group, but not another. As discussed below, municipalities and school districts need to carefully consider such requests. This decision has implications for public entities that permit or consider permitting the flying or display of flags by private parties in public places. A copy of the decision may be found here.
Boston’s City Hall Plaza is available for use by the public for events. The plaza has three flagpoles. The first is utilized for the flag of the United States and the second for the flag of the Commonwealth of Massachusetts. The third flagpole is ordinarily adorned with the City’s own flag. However, the City has allowed private groups using the Plaza to fly their own flag on this third flagpole, rather than the City’s flag, during the groups’ events. The City has also flown other flags on the third flagpole of its own accord, such as when the Mayor lost a friendly bet after the Boston Bruins failed to win the Stanley Cup. Use of the flagpole by private groups occurred nearly three hundred times in the dozen years preceding the events giving rise to the Shurtleff litigation. Over the years, the City has maintained control over the Plaza’s physical premises, and over the time and date of events to avoid conflicts. But the City never previously denied permission to any group regarding what flag a group could display on the flagpole. As a result, numerous private groups were allowed to raise dozens of different flags, including flags of other countries, flags associated with Pride Week, a flag commemorating emergency services workers and even the flag of a local bank. The City told the public that its aim was to “accommodate all applicants,” as it considered the flagpole a public forum.
In 2017, Harold Shurtleff, director of “Camp Constitution,” applied to use the Plaza for an event. He indicated in his application that the group planned to raise the Christian flag, a flag featuring a red cross on a blue field on a white background. The purpose of the event was to “commemorate the civic and social contributions of the Christian community.” The City had no objections to the event itself, but denied the request to fly the flag, on the grounds that permitting the flying of a religious flag would violate the Establishment Clause in the First Amendment of the Constitution.
Shurtleff sued, arguing that the prohibition regarding the flag abridged his First Amendment right to free speech. The District Court found that flags flown on City Hall’s third flagpole constituted government speech, and therefore the request could appropriately be denied; the Court of Appeals for the First Circuit affirmed the decision. These decisions followed the rule that, when a government speaks for itself, it may espouse the view dictated by its own policies and may choose what it does and does not wish to say.
Upon appeal, the Supreme Court reversed the lower Court’s ruling. The Court divided the question into two issues: whether the use of the flagpole constituted government speech; and, if not, whether this private speech could be curtailed.
The Court acknowledged that the flags flown on the third flagpole often conveyed a government message. Nonetheless, the City had permitted over four dozen different flags to be flown by different private groups, and had never, prior to Shurtleff’s application, exercised any control over the message conveyed by the flags. The City had no written policies or internal guidance regarding what flags the City itself, or outside groups using the Plaza, groups could fly.
The Court recognized that the third flagpole had long been available for use by groups using the Plaza. Because the City maintained a “lack of meaningful involvement in the selection of flags or the crafting of their messages,” the Court held that these flag raisings constituted private, and not government, speech and the third flagpole was considered a public forum. The Court also held that by allowing private flags to be flown and not permitting a religious flag to be flown, the City was discriminating against religion. The flying of a religious flag on the same terms as allowing non-religious flags to be flown does not violate the Establishment Clause.
Once the Court determined that the speech embodied by the private group flag-raisings was private speech, the next question was whether the City had any right to restrict that speech. The answer is controlled by another line of precedent, culminating with the decision in Good News Club v. Milford Central School, 533 U.S. 98 (2001). In Good News Club, the Court held that when a public entity allows its property to be used as a public forum, it may not engage in discrimination on account of viewpoint of those using its facilities, including religious viewpoint. The case involved a public school district that sought to prohibit a Christian student group from meeting, although it did permit non-religious groups formed for similar purposes to do so.
The City had allowed countless private groups to express messages relating to the culture of other countries and to sexual identity and orientation, by allowing private groups to fly their flags during their events at City Hall Plaza. Based on this history, the City could not refuse to allow Shurtleff’s group to fly the Christian flag, as it would constitute religious viewpoint discrimination, and abridge the group’s First Amendment free speech rights.
What this means for local governments and public school districts:
Municipal entities that do not wish to run afoul of the Supreme Court’s ruling will have to ensure that they do not create a limited public forum with their policies and procedures (or lack thereof) regarding the flying of private organization flags.
The City had a history of approving all prior requests by private organizations to fly their flags for their events at City Hall Plaza and had no policies or procedures governing what kind of flags could be flown. It was for this reason that the Court found that the speech embodied by the flags was not government speech, and, that as private speech, private organizations had First Amendment rights that could not be abridged.
Once policies and procedures are in place that permit private parties to fly a flag, municipalities should then enforce them in a consistent and evenhanded manner. Municipalities may receive requests from private citizens or groups for the group to fly particular flags to commemorate an event, honor a group, or for some other purpose. By honoring such requests, a municipality will be creating a limited public forum in which distinctions based upon viewpoint will be impermissible. Once a limited public forum is established, the rules for regulating speech must be reasonable and content – neutral.
The takeaway is that public entities have essentially the following options:
- Restrict the use of public flagpoles to displaying official flags only (e.g., the flag of the United States of America, and the flags of states and localities). Rules concerning how flags should be displayed can be found in N.Y. Executive Law § 403.
- Restrict the use of public flagpoles to official flags and flags chosen by the governing body to conveying a message of its choosing. In such instance, the public entity determines what message it wishes to convey, so long as it doesn’t violate the Establishment Clause and is related to a governmental purpose. A written policy should be established to ensure consistency and assign decision-making authority.
- Allow private organizations and individuals to display flags, but recognize that public officials will have very limited latitude to regulate the type of flags that are displayed and which groups are permitted to fly them. Any regulations must be content-neutral. For example, the size of such flags, and the duration of display, may be regulated, and commercial advertising may be prohibited. Beyond that, it’s a slippery slope, and drawing further distinctions will quickly become legally tenuous. Once the public entity decides to allow private organizations and individuals to display their flags, you must “serve all customers.” A flag that conveys a provocative or controversial message must be treated the same as one that conveys a message that is popular and generally accepted.
In sum, the interplay of constitutional law and allowing a private entity to use public property is fraught with potential difficulties. Allowing private messages to be conveyed on public property requires careful consideration. Our office will be presenting a webinar in June, “Flags, Banners, and Signs: Navigating The First Amendment Implications .” If you wish to be provided with details on the webinar, email Keane & Beane, P.C. If you have any questions or concerns, please feel free to contact Nicholas M. Ward-Willis, Susan E. Fine or the Keane & Beane attorney with whom you regularly work.
