Legal Docket - Flag discrimination

NICK EICHER, HOST: It’s Monday, January 24th, 2022. You’re listening to The World and Everything In It from WORLD Radio. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

The Supreme Court handed down one opinion dealing with a criminal defendant’s right to confront witnesses against him—what are known as “adverse witnesses,” as guaranteed by the 6th Amendment.

By a vote of 8-1, the court ruled in favor of Darrell Hemphill. A jury convicted him of murder partly based on evidence allowed into the trial from someone who was out of the country and not cross-examined. The majority justices found that the trial court violated Hemphill’s rights in allowing this evidence. The case now returns to lower court and Hemphill’s legal team is going for a new trial.

EICHER: Now on to oral argument in a case out of Boston’s city hall, or rather, the plaza in front of it.

Three flagpoles stand there. One flies the American flag along with a banner that honors our military missing in action.

Another flies the state flag of Massachusetts.

The third flagpole is changeable; sometimes it flies the city flag of Boston, sometimes it flies a flag raised to commemorate a cause, a person, a group, or an event.

REICHARD: Over the years, that’s included an LGBTQ Pride flag, a flag to honor Malcolm X, and various countries including China, Cuba, and Turkey.

But one flag the city would not approve.

Harold Shurtleff wanted to fly a flag in honor of Constitutional Day and Citizenship Day back in September, 2017. Shurtleff runs a group called Camp Constitution that teaches about the nation’s Judeo-Christian heritage and about our founding documents. This flag is white with a red cross on a dark background in the upper left corner.

The city rejected that flag.

So, Shurtleff sued because he thought the city discriminated against him in violation of his First Amendment rights.

Here’s his attorney, Mat Staver:

STAVER: After 12 years with 284 flag-raising approvals, no denials, and usually no review, one word caught the attention of a Boston official: the word ‘Christian’ on the application, The flag itself was not the problem. Had it been called anything but Christian, the same flag would have flown for an hour without incident. The policy does not limit the flagpoles to subject matters or speakers. All applicants are welcome, except religious viewpoints.

But the city of Boston defends itself by pointing to its flag policy.

Here’s lawyer for the city, Douglas Hallward-Driemeier. Note I’ve edited his comments to make them a bit clearer.

HALLWARD-DRIEMEIER: Also, on the City’s website—under the policy, the first rule is that we, the City, will not put up a flag that is discriminatory, offensive, or that supports religion. It’s—the—the City is going to stay silent, neutral, with respect to religion. We’re not going to support a religion. Neither will we offer something that is derogatory of religion. And that’s consistent with the principles of the Establishment Clause.

Hallward-Driemeier emphasized the city’s desire to celebrate diversity without getting tangled up in religion.

Justice Clarence Thomas asked if diversity is the end all and be all, then how about a clarifying definition of it?

THOMAS: You mentioned diversity several times, and what I don't understand is your definition of diversity because it would seem to me that Christians in Boston would be a part of that diversity calculus.

HALLWARD-DRIEMEIER: The -- the -- the specific form of diversity that the City was trying to celebrate was national origin diversity, the references to countries throughout the -- the -- the world. Of course, there are other aspects of diversity. The City can choose to celebrate those aspects of diversity in many ways, and the City does celebrate religious events in other ways.

Those “other ways” do not include flying a Christian flag, though. That’s because the city official who turned it down thought the flag promoted a particular religion. And that ran afoul of the so-called separation of church and state.

The justices grappled to understand what line the city actually drew here.

Listen to this exchange between Justice Samuel Alito and Hallward-Driemeier, lawyer for the city:

ALITO: If someone in Boston wanted you to put up the North Korean flag, would you do that?

HALLWARD-DRIEMEIER: I -- if there was a --

ALITO: I don't know what the current flag of Afghanistan is, but if it becomes -- if it's -- becomes the Taliban flag, would you fly that?

HALLWARD-DRIEMEIER: If – if there was a community in Boston that sought to -- they may be refugees from those countries.

So, a flag that represents refugees from a certain country is fine.

What about other kinds of flags? The court needs to instruct cities on what policies they can have. Suppose cities like using flags for civic engagement but they also want some limits?

Here’s Justice Elena Kagan with Staver, lawyer for Shurtleff and his flag:

KAGAN: So the city has a policy of that kind, and then somebody comes to it and says, we'd like to put up this swastika on your pole. Does the city really have to say yes at that point?

STAVER: If it's a designated public forum, I think the answer is yes. But, on the other hand --

KAGAN: So, really, what you're saying is that a city can't possibly have a kind of open policy like this because no city is going to want to put up a swastika or a KKK flag or something like that. So, really, what you're saying is that this is just a kind of policy that a city can't have.

STAVER: No, Justice Kagan. In fact, the City could have a more limited policy. It didn't choose to do that.

That’s the hinge around which this dispute turns, that limited policy. And that depends on whether flying flags is government speech, or private speech. Just who is it that is expressing the pro-Christian message on the flag? Harold Shurtleff or the city government?

That matters, because depending on how you classify certain speech, the government can regulate it. Even discriminate against certain viewpoints.

The legal pathway here is murky because the case law is confusing. The Supreme Court decided before that a permanent monument in a public park is government speech that the government can regulate. But the court’s also said that trademarks issued by the government are not government speech and it cannot regulate those.

Other decisions warn against the government speaking or acting in a way that a reasonable person might perceive as an endorsement of a religious viewpoint.

But that raises another question: How do you define “reasonable observer”? Would he or she be a tourist? How about someone who lives there and passes by the city hall everyday on the way to work?

Justice Stephen Breyer imagines what that someone might think:

BREYER: Of course, you think it has something to do with the City, something. And so -- so they're saying, look, on the one hand, anybody -- anybody in his right mind would think it does have something to do with the City. And, number two, there isn't some huge diversity for any group in sight. All there is is the flag -- the flag of Paraguay and -- and a couple of exceptions for groups that we support.

So much for the reasonable observer. That hypothetical person could have all sorts of ideas about the meaning of flags.

Here are a few other factors past Supreme Court decisions have considered to determine whether an object is government speech or not: the historical use of the forum, like the flagpoles in the plaza in this case, and whether the government maintains control over the area.

The Biden Administration sides with Shurtleff. Listen to Assistant to the Solicitor General, Sopan Joshi:

JOSHI: I'm saying they can draw the lines based on content and based on even speaker status or identity. So, for example, nonprofits only or—I think, Justice Kavanaugh, you mentioned al Qaeda—a no-terrorist rule seems pretty reasonable to me. So that would probably pass muster. But they can't draw lines based on viewpoints. So, if the program is such that, for example, a group could raise a Black Lives Matter flag, they probably would have to be able to raise a Proud Boys flag. I mean, that's just what the First Amendment demands, even in a non-public forum.

Justice Kavanaugh thought the problem in this case is that the city government here has a mistaken view about the Establishment Clause. One that says government property opened up as a forum to speak should allow only secular groups to speak and not religious groups.

KAVANAUGH: And it seems like we’ve had case after case after case that has tried to correct that misimpression of the Establishment Clause, and that seems to me what the root cause is here.

Justice Elena Kagan put a fine point on that, and I think pointed to a win for Harold Shurtleff, his flag, and religious freedom:

KAGAN: It’s not a crazy mistake, you know? A city could not put a cross in my view on City hall. But, in the context of a system where flags go up, flags go down, different people have different kinds of flags, then it is -- a violation of the free speech part of the First Amendment and not an Establishment Clause violation. The end.

Here’s the thing: court watchers on both sides of the political aisle think the city of Boston did wrong here. Outlets from Vox-dot-com to the ACLU to The Wall Street Journal agree. The flag with the cross on it ought not to have been excluded.

I want to stop to savor this pleasant agreement!

As soon as the Supreme Court accepted this case, Boston decided it wouldn’t accept any more flag raising applications. The city says it’s “re-evaluating” things.

And that’s this week’s Legal Docket.

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