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