Emerson Phillips
The US Supreme Court on Monday ruled that the city of Boston violated a Massachusetts man’s first amendment rights by refusing to fly a Christian flag at city hall.
Videos by Rare
In a ruling written by Justice Stephen Breyer, all nine members of the nation’s highest court agreed that the city should not have kept Harold Shurtleff’s flag off the flagpole, which the city had already agreed could be used by a bank and to recognize Gay Pride Week.
Shurtleff heads a religious group called Camp Constitution. He had argued that his group was denied a permit in 2017 to raise a Christian flag on one of three City Hall flag poles in connection with an event. Camp Constitution said Boston’s flagpole is a public forum, a concept in First Amendment law used by courts to help analyze when the government may regulate speech on public property. The government can’t restrict speech based on a speaker’s viewpoint in a public forum. The court ruled the city blocked Shurtleff for no other reason than the religious message his flag carried.
“The city’s refusal to let Shurtleff and Camp Constitution fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment,” Breyer wrote. “While the historical practice of flag flying at government buildings favors Boston, 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.”
According to the court, Shurtleff’s request was the only time the city refused to fly a flag between 2005 and 2017. During that time, the city approved 284 requests from a variety of businesses and organizations, the court said.
“This case is so much more significant than a flag,” said Mathew Staver, the founder and chairman of Liberty Counsel, a Christian legal group that represented Camp Constitution. “Boston openly discriminated against viewpoints it disfavored when it opened the flagpoles to all applicants and then excluded Christian viewpoints.”
Boston had argued that the flags on its flagpole are a form of government speech – not a public forum – and that city officials may choose the messages they want to convey.
“The first and basic question we must answer is whether Boston’s flag-raising program constitutes government, speech,” Breyer wrote. “If so, Boston may refuse flags based on viewpoint. The First Amendment’s Free Speech Clause does not prevent the government from declining to express a view. That must be true for government to work. Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans.”
