The Department of Justice says federal courts in Boston goofed in upholding the city of Boston's decision to bar an ex-Bircher who used to live in West Roxbury from flying what he considers a "Christian" flag from one of the three flagpoles in front of City Hall.
The amicus brief was filed in the case of Hal Shurtleff, who has been fighting since 2017 to run his flag up one of the poles, now with the help of a Florida law firm that specializes in fighting for its version of "religious freedom." The Supreme Court is scheduled to hear oral arguments in the case on Jan. 18.
In a series of decisions between 2018 and 2020, a federal judge and the Court of Appeals for the First Circuit in Boston have sided with the city, declaring that, unlike City Hall Plaza, which is open to anybody, the flagpoles are not a "public forum" but rather a place for city government to exercise its own First Amendment rights, by deciding which flags fly, and so the city has a right to bar flags representing "discrimination, prejudice, or religious movements."
The Justice Department, however, argues that the way City Hall has run its program for allowing non-government flags to fly on one of the poles makes the poles a public forum: The city already lets private groups use one of them to promote events on City Hall Plaza, and barring Shurtleff, who runs a camp in New Hampshire to teach kids his views on the Constitution, is unconstitutional "viewpoint discrimination" based solely on the religious content of his proposed flag.
Most important, the City typically exercises no input into or control over the choice of flags or the content of the events at which they are raised. Instead, the City has made its flagpole generally available to a variety of private groups, approving all 284 applications it received in the twelve years before this case arose - usually without even reviewing the flags. This Court's decisions make clear that a government creates a forum for private speech where, as here, it seeks to foster a diversity of views from private speakers. And the Court has also held that the resulting speech remains private even if the government seeks to exclude religious speakers or other specific viewpoints.
The brief continues:
Although historically flags have often been used to convey government messages, the specific history of the City’s flag-raising program is quite different because the City has opened its flagpole to a wide variety of private groups. And for the same reason, the public would not reasonably attribute the flags flown during frequent private flag-raising events to the City - just as they would not reasonably attribute to the City the messages conveyed by the associated events on the plaza below. Finally, the flags are flown only temporarily and remain the property of the private parties.
And if you let one group use a flagpole, you can't simply deny another:
The City denied the application only because petitioners' flag was described as religious. This Court has long held that denying access to an otherwise-available forum simply because of the religious nature of the speech is viewpoint discrimination. The City cannot generally open its flagpole to flags from private civic and social groups while excluding otherwise-similar groups with religious views.
This is especially true, the federal government says, because nobody in Boston would think that the government is promoting a particular group or religion with that one pole, in particular because many of the flags are for groups that are using City Hall Plaza for an event that day.
And, the government continues, unlike in other "government speech" cases, the city of Boston doesn't even take ownership of the flags in question, but lets the sponsoring groups retrieve them at the end of the day.
The Justice Department says the city could turn the pole into an outlet for protected government speech through a couple of different means. It could, for example, limit its use to the flags of sovereign nations, such as the ones it typically flies when a foreign dignitary is visiting or on a particular country's national day. Or it could limit flags to promote events that the city itself is sponsoring, similar to the way the National Park Service can prevent extremist groups from demanding space or speaking time at events it sponsors in parks in Washington.
The amicus brief is one of 17 filed so far in the case