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Boston, A Flagpole, And Free Speech.

Imagine if you will, a large city with diverse interests. The city has three flagpoles out in front of City Hall – one is for the American flag, one for the state flag, and one is allowed for groups to fly when having an event in the plaza in front of City Hall.

Imagine if you will between …

… June 2005 and July 2017, the city received 284 applications from various community, civic, or social organizations wishing to hold flag-raising ceremonies. Every one of them was approved.

Over the course of those 12 years, the banners of scores of countries and causes were temporarily flown from the third pole. Among them were the flags of Mexico, China, Brazil, and Puerto Rico, the LGBT Pride flag, the Juneteenth flag, and banners heralding Marcus Garvey Day, the Walk for Peace, and the Bunker Hill Association. Boston’s published guidelines referred to City Hall Plaza and the third flagpole as “public forums” and said the city “seeks to accommodate all applicants.” On its website, the city affirmed that its intention was to provide access to all groups: “We commemorate flags from many countries and communities at Boston City Hall Plaza. We want to create an environment in the city where everyone feels included.”

In short, the City of Boston proclaimed a policy of unfettered free speech on the plaza and the third flagpole, and it upheld that policy without fail.

Imagine if you are a group that wishes to celebrate the Constitution of the United States and the Judeo-Christian beliefs of the people that struggled, wrote, and eventually passed that Constitution. You want to hold an event just like everyone else can, and you also want to fly a flag on the third pole. This flag, in fact:

Imagine then that you were turned down by the city and not allowed to fly your flag because it contains a “Latin Cross.”

Such are the facts of a case about to be argued in front of the Supreme Court called Shurtleff v. Boston where the City of Boston, after declaring the flagpoles as an open public forum, denied the application of a group called “Camp Constitution” wanted to fly the flag in honor and remembrance of Constitution Day on Sept. 17, a federal observance of the day the US Constitution was signed in 1787.

In the history of the public forum flag poles, the Camp Constitution flag was the only one that was denied. It was denied om the basis of the religious imagery of the flag.

Other flags raised on the city’s flagpole include the Turkish flag (which depicts the Islamic star and crescent) and the Portuguese flag (which uses religious imagery). City officials have also never denied the “messages” communicated by the “Chinese Progressive Association,” the rainbow flag of Boston Pride, and a “transgender” pink and blue flag. The flags of private community groups include Albania, Brazil, Ethiopia, Italy, Panama, Peru, Portugal, Puerto Rico, and Mexico, as well as of Communist China and Cuba. No flag was ever denied until the city denied the flag of Camp Constitution.

Just as interesting:

Gregory Rooney, the City Hall commissioner who turned Shurtleff down, claimed that Boston had a policy of “refraining from flying non-secular flags on the City Hall flagpoles” — i.e., “a religious flag that was promoting a specific religion.” But no such policy had ever been previously articulated. And Rooney later testified that it was solely the appearance of the word “Christian” on the application that triggered the city’s rejection. There would have been no objection to Camp Constitution’s proposed flag-raising if the flag had been described differently.

Camp Constitution sued the City and lost at the District Court level as well as the First District Court of Appeals. Both courts agreed that the City of Boston had the right to control / censor the message on the flag poles. Much of the reasoning was based on the case of >Walker v. Sons of Confederate Veterans where the Supreme Court voted 5-4 that the State of Texas did not have to allow the group “Confederate Sons of Liberty” to sponsor and sell specialty license plates. The majority ruled that the license plates conveyed a government message which the government could control.

In dissent, Justice Samuel A. Alito Jr. opined:

As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games—Notre Dame, Oklahoma State, the University of Okla-homa, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina)[1] is the official favorite of the State government? (emphasis ours)

(At least Alito understands the passion for college football in Texas.)

Still, we believe there is a difference between messages on a license plate which is not a public forum, and the plaza in front of Boston’s City Hall, which by declaration of the City, is a public forum.

The city refers to its flagpole as a “public forum” and allows private organizations to temporarily raise their own flags on the flagpoles. The city of Boston’s website even states the goals for flag raising events include, “We commemorate flags from many countries and communities at Boston City Hall Plaza. We want to create an environment in the city where everyone feels included.(emphasis ours)

(Unless your flag is described as a “Christian” flag, in that case, Boston doesn’t want to allow you to raise your flag and doesn’t want you to “feel included.”)

The Supreme Court will decide:

Issues: (1) Whether the U.S. Court of Appeals for the 1st Circuit’s failure to apply the Supreme Court’s forum doctrine to the First Amendment challenge of a private religious organization that was denied access to briefly display its flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, conflicts with the Supreme Court’s precedents holding that speech restrictions based on religious viewpoint or content violate the First Amendment or are otherwise subject to strict scrutiny and that the establishment clause is not a defense to censorship of private speech in a public forum open to all comers; (2) whether the 1st Circuit’s classifying as government speech the brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, unconstitutionally expands the government speech doctrine, in direct conflict with the court’s decisions in Matal v. Tam, Walker v. Texas Division, Sons of Confederate Veterans, Inc. and Pleasant Grove City v. Summum; and (3) whether the 1st Circuit’s finding that the requirement for perfunctory city approval of a proposed brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants with hundreds of approvals and no denials, transforms the religious organization’s private speech into government speech, conflicts with the Supreme Court’s precedent in Matal v. Tam, and circuit court precedents in New Hope Family Services, Inc. v. Poole, Wandering Dago, Inc. v. Destito, Eagle Point Education Association v. Jackson County School District and Robb v. Hungerbeeler.

Constitution Camp is being represented by Liberty Counsel, and both the ACLU and the Biden Administration (amongst many others) have submitted briefs in support of Camp Constitution and against the City of Boston.

The Supreme Court hearing is set for Monday, January 18, 2022 at 10 AM ET.

A long time ago, the City of Boston was one of the epicenters of the American Revolution. Men, women and children believed in free speech that was unfettered by governments and by the idea that someone may be “offended.”

The fact that Boston is now acting against those foundational beliefs show how far the government of Boston is from the idea of freedom.



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