May 4, 2022 -- In Shurtleff et al. v. City of Boston (May 2, 2022), the U.S. Supreme Court unanimously held that the City of Boston’s refusal to let an organization fly their flag on city-owned flag poles based on their religious viewpoint violated the Free Speech Clause of the First Amendment. In Shurtleff, an organization brought action against Boston alleging the city violated, among other things, the First Amendment's Free Speech Clause by refusing to allow the organization to raise its self-described “Christian flag” under the city's program of allowing private groups to use one of the three flag poles on the plaza in front of city hall to fly the flag of their choosing for the duration of events sponsored by the groups. The First Circuit Court of Appeals disagreed and ruled in favor of Boston.
However, the U.S. Supreme Court reversed and concluded that Boston’s flag-raising program does not express government speech. Expressing government speech would have allowed Boston to refuse a flag based on viewpoint. Instead, the Supreme Court concluded that the program expressed private speech when it allowed private organizations to use the flagpole. Thus, Boston was therefore prohibited from restricting speech based on a speaker’s viewpoint. In making this determination, the Supreme Court concluded that “the city's lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech - though nothing prevents Boston from changing its policies going forward.”
If your city has a policy allowing private organizations to raise their flags on city-owned flag poles, or any other policy allowing private organizations to display a flag or other similar object on public property, then we recommend considering whether the policy should be reexamined in light of this case.
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