What if it had been a New York Yankees flag?

Monday, May 23, 2022

What if it had been a New York Yankees flag?

Reading the Supreme Court’s decision in Shurtleff v. City of Boston the “what ifs” kept popping into my head. SCOTUS was unanimous in this one, holding that the City of Boston infringed on the free speech rights of a group that wanted to briefly fly a Christian flag on an 83-foot flagpole while they gathered on the Boston City Hall plaza. 

The city flies three flags in front of the City Hall every day—the U.S. flag, the Massachusetts flag and the City of Boston flag.  However, other groups are allowed to briefly raise another flag in place of the city flag.  From 2005 to 2017 there were about 50 groups that took advantage of this. Most of them raised flags representing their country of origin.  The Pride flag flew during Pride week.  Importantly, Boston had never turned down any group, and informed the public that it sought to “accommodate all applicants.” 

But when a group proposed raising what they described as “the Christian flag” the city balked, fearing that permitting this would be perceived as an endorsement of a religious group in violation of the Establishment Clause of the Constitution. 

The key to this decision is the Court’s conclusion that Boston was not “speaking” when it allowed   private groups to raise their flags on the plaza. This was private speech, not government speech, and Boston could not regulate the content. 

That seems fair. But I started to wonder about flags that would be more controversial. What if some group wanted to fly the New York Yankees flag—in the heart of Red Sox territory! It could be even worse than that. What if a group wanted to raise the Confederate flag?  What about a Nazi flag?  Surely, Boston would not want any such flag to be raised 83 feet high in front of the city hall.  How to prevent it? 

The Court provides a clue:

….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.  (Emphasis added). 

Not only that, the Court helpfully gave an example of how to avoid problems:

Boston could easily have done more to make clear that it wished to speak for itself by raising flags. Other cities’ flag-flying policies support our conclusion. The City of San Jose, California, for example, provides in writing that its “flagpoles are not intended to serve as a forum for free expression by the public.”

This kind of issue comes up in public school districts with regard to advertising in athletic venues, “donate-a-brick” campaigns and other activities that allow some degree of free expression.  You have to be thoughtful about those things, lest you fall into some embarrassing dilemmas. Lawyers can help you with that. The lawyers at Walsh Gallegos can do that, so let us know if you have questions.

This one is Shurtleff v. City of Boston, decided by the Supreme Court on May 2, 2022. It’s cited at 2022 WL 1295700.


Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com

Tomorrow: Toolbox Tuesday!!