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Greetings, Court Fans!

Slow news week at One First Street, with just one 9-0 decision in a (fairly interesting) First Amendment case. What’s that you say? You’ve heard tell of another opinion making the rounds? Fair enough, it could be that the most significant constitutional decision in fifty years was “pre-released” on Monday. But as it’s also possible that the actual decision of the Court will be markedly different, we’re holding our quills for the moment. So for now, please look to pretty much anyone else for analysis of the leaked Dobbs opinion. But if it’s Shurtleff you’re after, read on . . .

Shurtleff v. City of Boston (No. 20-1800) might not be as earth-shattering as other decisions anticipated this term, but it is a significant new addition to the Court’s jurisprudence on government speech. The Court unanimously concluded that the City of Boston could not pick and choose which private flags it permitted to be flown alongside the American and Commonwealth flags. Since the private flag-raising program was not speech by the City, it could not refuse permission to fly a particular flag based on the views that it expressed. On that much, all nine Justices agreed; but there were still plenty of different opinions on exactly what the test for government speech should be and on whether and how the Establishment Clause played into to all of this.

For years, the city of Boston has permitted private groups to hold ceremonies at City Hall Plaza during which they may hoist a flag of their choosing on one of three flag poles (the other two being reserved for the American flag and Massachusetts flag). Most of the flags flown on the third pole have been other countries’, but some have been associated with groups or causes, such as the Pride Flag, and a banner honoring medical service workers. In 2017, Harold Shurtleff sought to hold an event on the plaza to celebrate the contributions of Christians to society, and to raise what he called the “Christian flag.” The commissioner of Boston’s Property Management Department feared that raising a Christian flag might violate the Establishment Clause, and so told Shurtleff that he could have his celebration, but could not raise the flag. Shurtleff sued, claiming the City’s refusal to allow him to raise the Christian flag violated his First Amendment speech rights. The District Court rejected this argument, holding that the flying of flags at City Hall was government speech, so Boston could, consistent with the First Amendment, decide what sorts of speech it wanted to endorse.

The Supreme Court unanimously reversed, concluding that Boston’s flag-raising program was not government speech, and therefore the City could not preclude a flag from flying based on the viewpoint it expressed. In his opinion for the Court, Justice Breyer started with the undisputed premise that the First Amendment does not prohibit the government from expressing its own views—including endorsing some positions and not others. As Breyer (a former Beantown-based First Circuit judge) observed, “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.” The tricky question is how to define the “boundary between government speech and private expression,” which is trickiest when (as here) the government invites others to speak. In those situations, the government is sometimes transmitting its own preferred message, and sometimes creating a forum for the expression of private speakers’ views.

Justice Breyer prescribed a “holistic inquiry” for determining “whether the government intends to speak for itself or to regulate private expression,” looking at factors including the history of the expression at issue, the public’s likely perception as to who (government or private person) is speaking, and the extent to which the government has actively shaped or controlled the expression. Applying that multi-factor test here, Breyer concluded that Boston’s flag-raising program was not government speech. Though it is true that, historically, flag-flying tends to convey a government message, Boston’s particular history of inviting others to raise their flags, expressing varied messages, shows that is not always the case. Breyer found the circumstantial evidence of the public’s perception to be indeterminate. But the “most salient” factor in this case was that Boston had never actively controlled or shaped the messages conveyed in the invited flag raisings. Until Shurtleff sought to raise the Christian flag, Boston had never disapproved a flag-raising request. And while some flags (those of other nations, or the Pride Flag, for example) may have expressed messages that Boston specifically endorsed, others (like the flag of a community bank) did not seem to be expressing the City’s views. Boston had no written policies regarding what sorts of flags could be flown, and expressly stated that it sought “to accommodate all applicants” wishing to hold events at its “public forums.” In short, Boston’s “come-one-come-all” practice led Breyer to classify the flag-raisings as private, not government speech.

Because Boston’s flag-raising program did not express government speech, its refusal to let Shurtleff fly his Christian flag violated the First Amendment. When government is not speaking for itself, it cannot exclude private speech based on viewpoint, even if it’s a religious viewpoint. Since Boston expressly conceded that it had denied Shurtleff’s request because his flag promoted a specific religion, there was no question that it had engaged in viewpoint discrimination. Unless (and likely until) the City assumes greater editorial control over its flag-program, it cannot deny applications on the basis of the views expressed.

Justice Breyer’s opinion for the Court (joined in full by the Chief Justice and Justices Sotomayor, Kagan, Kavanaugh, and Barrett) was characteristically flexible and multi-factorial, relying as it did on his earlier opinion for the Court in Walker v. Texas Division, Sons of Confederate Veterans (2015). Writing separately, Justice Alito (joined by Thomas and Gorsuch) expressed his agreement with the Court’s holding, but stated that “I cannot go along with the Court’s decision to analyze this case in terms of the triad of factors—history, the public’s perception of who is speaking, and the extent to which the government has exercised control of speech—that our decision in Walker . . . derived from” Pleasant Grove v. Summum (2009), a government-speech decision that Alito had written for the Court. Alito felt that Walker and Summum had invoked the “triad of factors” simply because the context of those cases presented them, not because the Court was announcing a test to be used in all government-speech cases. And he feared that the de facto three-part test the Court appeared to be announcing here could easily lead a court astray. Instead, the real, and only, question in government-speech cases is simply whether the government is speaking instead of regulating private expression. That is the only way, in his view, to “prevent the government-speech doctrine from being used as a cover for censorship.” (Alito all but predicted that Boston would do just that, by simply putting in place restrictions on what sorts of messages can be conveyed on its flagpoles that will demonstrate a “sufficient” degree of control to make it government speech under the Court’s standard, when it is really censorship of private speech.) Alito took a much narrower view of what constitutes actual government speech: it “occurs if—but only if—a government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech.” Under this framework, the flag displays were plainly private speech within a forum created by the City, not government speech.

Justice Gorsuch also wrote separately (joined by Justice Thomas). In his view, the “real problem” in the case was that Boston feared that the Establishment Clause prohibited it from allowing a Christian flag to be flown at City Hall. As Gorsuch pointed out, not a single Justice believed that to be the case. But the Court as a whole was responsible for Boston’s confusion because of that old bogeyman, the Lemon test. Though the Court has moved away from that test “and returned to a more humble jurisprudence centered on the Constitution’s original meaning,” Boston “chose to follow Lemon anyway,” and in so doing bought itself an expensive 9-0 reversal in the Supreme Court. Gorsuch took the opportunity to excoriate Lemon further, hoping that this case would provide a “cautionary tale” for other governments (and courts) that continue to look to that test for guidance in applying the Establishment Clause. “This Court long ago interred Lemon,” Gorsuch insisted, “and it is past time for local officials and lower courts to let it lie.”

Justice Kavanaugh (who joined the majority opinion in full), also penned a short concurrence to underscore (perhaps less acerbically) Gorsuch’s point: “As this Court has repeatedly made clear . . . a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities and the like. On the contrary, a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like.”

And with that, we’re done for the week. We’ll be back with more summaries when the Court issues more decisions (including, eventually, Dobbs).

Tadhg and Dave