WASHINGTON — The Supreme Court unanimously ruled on Monday that the City of Boston had violated the First Amendment when it refused to let a private group raise a Christian flag in front of its City Hall.
One of the three flagpoles in front of the building, which ordinarily flies the flag of Boston, is occasionally made available to groups seeking to celebrate their backgrounds or to promote causes like gay pride. In a 12-year period, the city approved 284 requests to raise flags on the third flagpole.
It rejected only one, from Camp Constitution, which says it seeks “to enhance understanding of our Judeo-Christian moral heritage.” The group’s application said it sought to raise a “Christian flag” for one hour at an event that would include “short speeches by some local clergy focusing on Boston’s history.” The flag bore the Latin cross.
Justice Stephen G. Breyer, writing for six members of the court, said the central question in the case, Shurtleff v. City of Boston, No. 20-1800, was whether the city had created a public forum by allowing private groups to use its flagpole or was conveying its own speech by choosing and endorsing the flags it approved. When the government is speaking for itself, it is immune from First Amendment scrutiny.
Justice Breyer concluded that the Christian flag was private speech in a public forum and that the city’s refusal to let “Camp Constitution fly their flag based on its religious viewpoint violated the free speech clause of the First Amendment.”
Both the Biden administration and the American Civil Liberties Union had filed supporting briefs siding with the Christian group’s position. “The city cannot generally open its flagpole to flags from private civic and social groups while excluding otherwise similar groups with religious views,” the administration’s brief said.
The court should consider three factors in deciding whether a given message is government speech, Justice Breyer wrote: the history of the practice in question, whether observers were likely to believe that the messages reflected the government’s views and how much the government controlled the messages. The third factor was “the most salient feature of this case,” Justice Breyer wrote, and it cut sharply against the city.
“All told,” he 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 railings as private, not government, speech — though nothing prevents Boston from changing its policies going forward.”
Justice Breyer stressed that governments must be free to take sides when they speak for themselves.
“When the government wishes to state an opinion, to speak for the community, to formulate policies or to implement programs, it naturally chooses what to say and what not to say,” he wrote. “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.”
Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh and Amy Coney Barrett joined the majority opinion.
In a concurring opinion, Justice Samuel A. Alito Jr. wrote that he agreed with the majority’s bottom line but not its rationale. Instead of a three-factor test, Justice Alito wrote, courts should focus on a single question in deciding whether expression is government speech: “whether the government is speaking instead of regulating private expression.”
“Government speech 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,” Justice Alito wrote.
The Boston program, he wrote, “cannot possibly constitute government speech.”
“The flags flown reflected a dizzying and contradictory array of perspectives that cannot be understood to express the message of a single speaker,” Justice Alito wrote. “For example, the city allowed parties to fly the gay pride flag, but it allowed others to fly the flag of Ethiopia, a country in which ‘homosexual acts’ are punishable by ‘imprisonment for not less than one year.’”
He has acknowledged that the Supreme Court has sometimes struggled to distinguish the government’s speech from private speech, and he has criticized a 2015 decision involving the Confederate battle flag.
In that case, Walker v. Sons of Confederate Veterans, the Supreme Court ruled that Texas could refuse to allow specialty license plates bearing the Confederate flag because the plates were government speech and therefore immune from First Amendment scrutiny. The vote was 5 to 4.
Texas had permitted hundreds of specialty plates bearing all sorts of messages, including ones for college alumni, sports fans, businesses and service organizations. Others sent messages like “Choose Life,” “God Bless Texas” and “Fight Terrorism.”
All were government speech, Justice Breyer wrote for the majority.
In dissent at the time, Justice Alito questioned the notion that license plates saying “Rather Be Golfing” or supporting the University of Oklahoma conveyed a government message. The first cannot plausibly represent state policy, he wrote; the second, in Texas at least, bordered on treason during college football season.
On Monday, Justice Alito said the license-plate decision had produced the three-factor test and warped the law in the process. “The government did not have any purpose to communicate, and instead allowed private parties to use personal plates to communicate their own messages,” Justice Alito wrote. “This expansive understanding of government speech by adoption should be confined to government-issued IDs.”
Justice Clarence Thomas, who had been in the majority in the license-plate case, joined Justice Alito’s concurring opinion, as did Justice Neil M. Gorsuch.
In his own concurring opinion, Justice Gorsuch said the city had rejected the Christian flag because it feared it would run afoul of the clause of the First Amendment barring government establishment of religion. He wrote that the Supreme Court bore part of the blame for that misunderstanding and that lower courts and local officials should not rely on Lemon v. Kurtzman, a 1971 decision that has been the subject of much judicial and academic criticism but has not been formally overruled.