The Supreme Court ruled unanimously today that the city of Boston was wrong in refusing to let a man run a flag featuring a cross up one of the three flagpoles over City Hall Plaza - not because he necessarily has a First Amendment right to let his religion flag fly but because the city had a lame policy for deciding what could and couldn't wave over the plaza.
Boston says that all (or at least most) of the 50 unique flags it approved reflect particular city-endorsed values or causes. That may well be true of flying other nations' flags, or the Pride Flag raised annually to commemorate Boston Pride Week, but the connection to other flag-raising ceremonies, such as one held by a community bank, is more difficult to discern. Further, Boston told the public that it sought "to accommodate all applicants" who wished to hold events at Boston's "public forums," including on City Hall Plaza. ... The city's application form asked only for contact information and a brief description of the event, with proposed dates and times. The city employee who handled applications testified that he did not request to see flags before the events. Indeed, the city's practice was to approve flag raisings without exception—that is, until petitioners' request. At the time, Boston had no written policies or clear internal guidance about what flags groups could fly and what those flags would communicate. ... All told, Boston’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads the Court to classify the third-party flag raisings as private, not government, speech.
The ruling might be a victory for Hal Shurtleff, an ex-Bircher who now lives in New Hampshire, closer to the camp he runs to indoctrinate kids with his version of the Constitution, if the city continues to let third parties fly flags from one of the poles. The city could also decide to just bar everybody from the pole.
The city had argued that the pole represented "government speech," that governments, just like private parties, have a right to express themselves and that the pole was an example of that - and that letting a "Christian" flag fly from it would violate the establishment clause of the First Amendment. A federal judge and appeals court in Boston had repeatedly sided with the city, but Shurtleff, represented by the right-wing Liberty Counsel, appealed and the Supreme Court took the case.
In its ruling, the high court acknowledged governments have their own free-speech rights, but said Boston's lackadaisical approach to approval of flags on the pole, at least up until Shurtleff's initial request, meant the pole was not being used exclusively to tell Bostonians what their government thought about something. Replacing the Boston flag with a Canadiens flag after the Bruins lost a series? Yes, government speech, the court concluded. But then there were the 20 times a year when the city let private groups hoist flags to honor events on the plaza. That's not government speech, and if you're going to let one group raise a flag, then you have to let others as well:
Because the flag-raising program did not express government speech, Boston's refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment. When the government does not speak for itself, it may not exclude private speech based on "religious viewpoint"; doing so “constitutes impermissible viewpoint discrimination." Good News Club v. Milford Central School>, 533 U. S. 98, 112.