Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes cases granted review on September 30, 2021 (Part I).
Case Granted Review: Shurtleff v. City of Boston, MA, 20-1800
Shurtleff v. City of Boston, MA, 20-1800. At issue is whether the City of Boston violated the First Amendment by denying a Christian organization’s request to raise its flag on the City Hall Flag Poles, even though the city had previously approved 284 flag raisings by private organizations, with zero denials. As the First Circuit explained: “The City owns and manages three flagpoles in an area in front of City Hall referred to as City Hall Plaza. The three flagpoles are each approximately eighty-three feet tall and are prominently located in front of the entrance to City Hall—the seat of Boston’s municipal government. Ordinarily, the City raises the United States flag and the POW/MIA flag on one flagpole, the Commonwealth of Massachusetts flag on the second flagpole, and its own flag on the third flagpole. Upon request and after approval, though, the City will from time to time replace its flag with another flag for a limited period of time. Such requests are typically made by a third party in connection with an event taking place within the immediate area of the flagpoles. . . . In addition to these flag-raisings, the City also allows organizations to hold [flag-raising] events in several locations near City Hall. . . . Before a flag-raising event is approved, Rooney [the Commissioner of Boston’s Property Management Department] must determine that the City’s decision to raise a flag is consistent with the City’s message, policies, and practices. Each applicant submits a short description of the flag that it wishes to hoist (e.g., ‘Portuguese Flag’), and it is Rooney’s invariable practice to act upon the flag-raising request without seeing the actual flag. . . . In a twelve-year period (from June 2005 through June 2017), the City approved 284 flag-raising events that implicated its third flagpole. These events were in connection with ethnic and other cultural celebrations, the arrival of dignitaries from other countries, the commemoration of historic events in other countries, and the celebration of certain causes (such as ‘gay pride’).”
“Camp Constitution is an all-volunteer association that seeks ‘to enhance understanding of the country’s Judeo-Christian moral heritage.’ [Harold] Shurtleff is the founder and director of Camp Constitution. In July of 2017, the plaintiffs emailed Lisa Menino, the City’s senior special events official, seeking leave to fly their own flag over City Hall Plaza. . . . Mulling the plaintiffs’ application, Rooney conducted a review of past flag-raising requests and determined that the City had no past practice of flying a religious flag. He proceeded to deny the plaintiffs’ flag-raising request. In response to the plaintiffs’ inquiry into the reason for the denial, Rooney responded that the City’s policy was to refrain respectfully from flying non-secular third-party flags in accordance with the First Amendment’s prohibition of government establishment of religion. . . . About a year later, the City embodied its past policy and practice in a written Flag Raising Policy. This policy includes seven flag raising rules, the first of which forbids the ‘display [of] flags deemed to be inappropriate or offensive in nature or those supporting discrimination, prejudice, or religious movements.’” Shurtleff and Camp Constitution (petitioners) sued the city in federal district court, seeking injunctive relief, a declaratory judgment, and money damages. The district court ruled for the city, and the First Circuit affirmed. 986 F.3d 78.
The First Circuit applied the three-factor test supposedly adopted in Pleasant Grove City v. Summum, 555 U.S. 460 (2009), and applied in Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015), and concluded that the third-party flags constituted government speech. The court reasoned that (1) “governments have used flags throughout history to communicate messages and ideas”; (2) “an observer would attribute the message of a third-party flag on the City’s third flagpole to the City”; and (3) “the City maintains control over the messages conveyed by the third-party flags.” The court found it immaterial that the city had never rejected a flag application, stating: “That potential applicants have successfully self-selected and offered a narrow set of acceptable secular designs cannot be evidence that the City is open to fly any flag.” Rejecting petitioners’ contention that the city created a public forum, the First Circuit said that “[t]he City’s restrictions demonstrate an intent antithetic to the designation of a public forum, and those restrictions adequately support the conclusion that the City’s flagpole is not a public forum.”
Petitioners argue that “[t]his should be a simple case, but the First Circuit abandoned this Court’s forum doctrine, and instead crammed Camp Constitution’s Free Speech challenge into a novel and rigid government speech test[.]” They maintain that “[t]he First Circuit’s government speech finding cannot be correct under this Court’s precedents because (1) the City’s flag raising application form designates the Flag Poles as a ‘public forum’ for the private speech of ‘all applicants;’ (2) the City never censored a flag from 284 applications over 12 years prior to Camp Constitution’s application; (3) the City approved 39 flags (averaging over three per month) in the year prior to Camp Constitution’s application; and (4) the raising of other country’s flags cannot be the City’s speech because it would be a crime under state law for the City to raise another country’s flag on City Hall.” Further, say petitioners, “[t]he First Circuit’s opinion excusing the City’s exclusion of Camp Constitution’s flag from the Flag Poles forum conflicts with this Court’s First Amendment precedents holding viewpoint discrimination in a public forum unconstitutional.” Petitioners add that “[t]he Establishment Clause simply provides no justification for suppressing the religious content of Camp Constitution’s speech in a forum that is available to similarly situated private speakers and organizations expressing content from non-religious perspectives.”
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]