The City of Boston flies three flags in City Hall Plaza just outside the Boston City Hall:  those of the United States, the Commonwealth of Massachusetts, and the City of Boston.  From time to time, and at the request of civic groups, organizations, businesses, and others, Boston replaces its flag with another.  The Pride Flag has flown above City Hall, and so too the flag of a community bank.

When Harold Shurtleff approached the city about hosting a Christian event and hoisting a “Christian flag,” however, the city demurred.  A Christian event in City Hall Plaza was fine, officials explained, but raising the religious flag could create Establishment Clause concerns, they worried.  The city therefore rejected Shurtleff’s request.

Litigation followed, with Shurtleff arguing that the denial abridged his First Amendment right to free speech. Both the district court and the First Circuit sided with Boston, reasoning that the city could control access to the flagpoles as a matter of government speech.  The Supreme Court reversed, with all nine justices joining in the judgment.

Although the government speech doctrine has expanded in recent years across cases like Pleasant Grove City v. Summum (monuments) and Walker v. Texas Div., Sons of Confederate Veterans (vanity license plates), the Court identified the government’s control over the medium and the message as a significant consideration tying the doctrine together.  That factor proved dispositive here.  While Pleasant Grove City and the State of Texas actively controlled the monuments and license plates they selected, Boston’s involvement with the City Hall Plaza flagpoles was limited to processing applications and avoiding scheduling conflicts.  Until it turned down Shurtleff’s proposal, the city had never declined to raise another flag.  Boston also lacked any policy as to what flags it would fly or what messages they could communicate, and in fact described the plaza as among the city’s “public forums.”  None of those facts established the requisite control over the medium and message for Boston to assert that the flags were government speech.

Having concluded that the flags were not government speech, the Court analyzed Boston’s denial as a straightforward matter of viewpoint discrimination and concluded it was unconstitutional.

Justice Kavanaugh joined in the opinion and the judgment but wrote separately to remind government officials that the Establishment Clause permits (and requires) governments to treat religious persons, organizations, and speech equally with their secular counterparts.

In an opinion concurring in the judgment, Justice Alito, joined by Justices Thomas and Gorsuch, rejected Walker’s three-factor government-speech test, used again here: history, the public’s perception of who is speaking, and the extent to which the government has exercised control over speech.  Justice Alito instead proposed that government speech “occurs if—but only if—a government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech.”

Finally Justice Gorsuch added another opinion concurring in the judgment, and joined by Justice Thomas, decrying the Court’s Establishment Clause jurisprudence under Lemon v. Kurtzman as confusing, outmoded, and in need of reform.

Shurtleff v. City of Boston ___ S. Ct. ___ (May 2, 2022)