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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. But when the government speaks for itself, the First Amendment does not demand airtime for all views. After all, the government must be able to promote a program or espouse a policy in order to function. Hence, when a government does not speak for itself, it may not exclude speech based on religious viewpoint; doing so constitutes impermissible viewpoint discrimination.
Outside the entrance to Boston City Hall, located on City Hall Plaza, stand three flagpoles. Respondent City of Boston flies the American flag from the first pole and the flag of the Commonwealth of Massachusetts from the second. Respondent usually flies its own flag from the third pole. However, for years, respondent has allowed groups to hold ceremonies on the plaza during which participants may hoist a flag of their choosing on the third pole in place of respondent’s flag. For years, respondent approved the raising of unique flags for ceremonies. Most of these flags were other countries’, but some were associated with groups or causes. In 2017, petitioner Harold Shurtleff, director of an organization called Camp Constitution, asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community. As part of that ceremony, he wished to raise what he described as the Christian flag. The Commissioner of Boston’s Property Management Department worried that flying a religious flag at City Hall could violate the Establishment Clause. The commissioner likewise found no past instance of the respondent’s having raised such a flag. Thus, he told petitioner that his group could hold an event on the plaza but could not raise their flag during it. Petitioners filed suit, claiming that Boston’s refusal to let them raise their flag violated the First Amendment’s Free Speech Clause. The district court held that flying private groups’ flags from City Hall’s third flagpole amounted to government speech, hence, Boston could refuse petitioners’ request without running afoul of the First Amendment. The First Circuit affirmed.
Could respondent city deny petitioners’ flag-raising request?
The court reversed the first circuit’s judgment. The court held that respondent’s flag-raising program did not express government speech. That while the historical practice of flag flying at government buildings favored respondent, the respondent’s lack of meaningful involvement in the selection of flags or the crafting of their messages led the Supreme Court to classify the flag raisings as private, not government, speech. Thus, the court concluded that respondent’s refusal to allow petitioners to raise their Christian flag at City Hall based on its religious viewpoint amounted to impermissible viewpoint discrimination; a violation of the Free Speech Clause of the First Amendment. The court likewise found that respondent denied petitioners’ request solely because the flag promoted a specific religion. Accordingly, the case was remanded for further proceedings.