Boston “violated the free speech clause of the First Amendment,” writes Justice Breyer.
- The U.S. Supreme Court ruled unanimously on Monday that Boston violated the free speech rights of a conservative when the city refused his request to fly a Christian flag on a flagpole outside City Hall.
- Justice Stephen Breyer wrote for the court that the city discriminated against Harold Shurtleff because of his “religious viewpoint,” even though it had routinely approved applications for the use of one of the three flagpoles outside City Hall that fly the U.S., Massachusetts and Boston flags.
- Shurtleff wanted to fly a white banner with a red cross on a blue background in the upper left corner, called the “Christian flag,” to mark Constitution Day, Sept 17, in 2017. His application said it sought to raise the Christian flag for one hour at an event that would include “short speeches by some local clergy focusing on Boston’s history.”
- Lower courts upheld the city’s decision to reject Shurtleff’s request due to its being a Christian flag, but the high court said those lower courts and the city were wrong.
- Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh, and Amy Coney Barrett sided with the majority opinion, while Justices Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch agreed with the majority’s bottom line but not its rationale.
- The case is Shurtleff v. Boston, 20-1800.
WHAT JUSTICE BREYER SAID:
“We conclude that Boston’s flag-raising program does not express government speech,” Justice Breyer wrote, adding that the city’s refusal to let Shurtleff’s group “fly their flag based on its religious viewpoint violated the free speech clause of the First Amendment.”
- Boston reportedly approved 284 consecutive applications to fly flags in a 12-year period, including those of other nations, before it rejected Shurtleff’s request because it was a Christian flag.
- The case focused on whether flag-flying is an act of the government—in which case Boston can do whatever it wants—or of private parties like Shurtleff.
- The city said that if the Supreme Court sides with Shurtleff, it will probably change its policy to take more control of what flags can fly.