Christian flag brings free speech test to Supreme Court

The U.S. Supreme Court justices on Tuesday zeroed in on the free speech issue at the center of a dispute between the city of Boston and a private nonprofit. The city had denied a request to briefly fly a Christian flag on a City Hall flagpole despite making the option available to secular groups. A ruling in the case has the potential to clarify when religious speech is allowed in public forums like city buses, libraries, schools, and public buildings.

Liberty Counsel attorney Mathew Staver, who represented Harold Shurtleff and his nonprofit, Camp Constitution, told the court that for 12 years the city had approved 284 requests to fly other groups’ flags on one of the three flagpoles in front of City Hall. Shurtleff’s application to fly a Christian flag was the first it denied. The group appealed after lower courts dismissed Shurtleff’s claim that the exclusion was a denial of his free speech rights.

Boston had designated the flagpole as a forum for private groups to raise flags in honor of the city’s diversity. Over the years, it featured flags ranging from those of Cuba and the People’s Republic of China to one from a credit union across the street. Shurtleff, a Boston resident, sought to raise the cross-adorned flag for one hour in conjunction with a Constitution Day event on Sept. 17, 2017.

Justices seemed open to Staver’s argument that the city, having opened the flagpole to all groups, could not deny an application simply because it was religious. Several justices pressed for a place to draw the line. “Someone wants to fly the al Qaeda flag at City Hall in Boston,” queried Justice Brett Kavanaugh. “You’re—you’re saying they would have a right to do so?”

Yes, said Staver, at least under the city’s current policy. He suggested the city could have placed a limitation on subject matter or speakers. “For example, the city could limit all the flags to simply flags of other countries recognizing the various constituencies of their communities,” he said. “But the city has chosen not to do that.”

Justice Amy Coney Barrett questioned when the city could claim flags or other forms of expression were government speech as opposed to private speech. Staver argued the situation was different if the city exercised intentional control over the subject matter.

Commenting on the case, Thomas Berg, a law professor at the University of St. Thomas School of Law in Minneapolis, Minn., said that in order for something to qualify as government speech there has to be more than just a rubber-stamp approval process: “When many expressions have been approved, there must be some clear policy to explain how they’re all government speech—and before the fact, to guide the decision-maker, not after the fact.”

Justice Samuel Alito characterized the city’s 2018 policy, put in place after the denial of Shurtleff’s application, as “reverse-engineered.”

Justice Brett Kavanaugh dismissed concerns that the city may appear to endorse a particular religion if it allows religious flags to fly: “Isn’t the answer to that to say equal treatment of religious groups or religious speech is not an Establishment Clause violation?” he asked.

Justice Elena Kagan cut across the conservative-liberal divide to sum up the gist of the argument. “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,” she said. “The end.”

Berg said that when both the Biden administration and the American Civil Liberties Union support a religious speaker, the case result is near-assured: “Bottom line: It’s a free speech case, and the facts were overwhelming against the city.”