## Facts

- Boston City Hall Plaza has three flagpoles: one typically flies the U.S. and POW/MIA flags, one flies the Massachusetts flag, and the third usually flies the City of Boston flag.
- For years, Boston ran a flag-raising program allowing outside groups to hold ceremonies and temporarily raise a flag of their choosing on the third pole.
- From 2005 to 2017, Boston approved about 284 flag-raising events involving roughly 50 different flags, including national flags and flags linked to various causes.
- In 2017, Harold Shurtleff and Camp Constitution sought to hold an event celebrating the Christian community and requested to raise a “Christian flag” during the ceremony.
- A city official denied only the flag request (not the event), citing concern that a religious flag at City Hall might violate the Establishment Clause; the denial was Boston’s first in the program’s history.

## Issues

1. Whether Boston’s third-flagpole program was government speech, permitting Boston to choose which flags to fly without Free Speech Clause limits.
2. If not government speech, whether denying the Christian flag constituted impermissible viewpoint discrimination in a forum opened for private expression.
3. Whether allowing the Christian flag in that program would violate the Establishment Clause.

## Decision

- The Supreme Court unanimously reversed and remanded.
- The Court held the flag raisings under Boston’s program were private speech, not government speech, because Boston exercised minimal control over flag content and routinely approved requests without substantive review.
- The Court concluded Boston created, at minimum, a limited public forum for private expression and then excluded speech due to its religious viewpoint.
- The Court rejected Boston’s Establishment Clause justification on these facts, explaining that equal access for private religious expression in a forum open to comparable private speech does not amount to unconstitutional establishment.

## Legal Principles

- Government speech depends on a fact-specific inquiry into historical use, public perception of the speaker, and the government’s control over the message.
- When the government opens property for private expression (including a limited public forum), it may not exclude speech based on viewpoint, including religious viewpoint.
- Permitting private religious expression on equal terms with secular private expression in an open forum does not, by itself, violate the Establishment Clause.
- A government may avoid forum-based constraints by retaining and exercising meaningful control over messages presented as its own; absent such control, private-speaker protections apply.

## Conclusion

Because Boston’s flag-raising practice functioned as a forum for private speakers and lacked meaningful city control over flag messages, the refusal to allow a Christian flag amounted to viewpoint discrimination prohibited by the Free Speech Clause, and Establishment Clause concerns did not justify the exclusion on the facts presented.


Shurtleff v. City of Bos., 596 U.S. 243 (2022)