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Explainer: Supreme Court unanimously upholds free speech in Boston flag case

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May 2, 2022

Today, the U.S. Supreme Court unanimously ruled that the city of Boston violated the First Amendment rights of petitioners Harold Shurtleff and his organization, Camp Constitution, by refusing to allow the group to fly the Christian flag in front of City Hall. The court’s decision today is a win for free speech. Justice Breyer delivered the opinion of the court, with Chief Justice Roberts,  and Justices Sotomayor, Kagan, Kavanaugh, and Barrett joining. Other justices filed concurring opinions.

ERLC Acting President Brent Leatherwood stated of this victory:

“In a unanimous decision, the Court today resoundingly shot down the city of Boston’s incompetent attempt to abridge the free speech rights of an individual and his organization for communicating a ‘religious viewpoint.’​ The opinion of the Court lines up with many of the themes of the brief joined by the ERLC in this case. We view this decision as a welcome addition to our nation’s First Amendment jurisprudence.

The reality is, had Boston continued with its established track record of approving every request that came in, this issue never would have been adjudicated. Given the united admonition of Boston’s unconstitutional actions, I’m sure the city now wishes it had simply granted Mr. Shurtleff’s request in the first place.”

What is this case about?

The City of Boston manages three flagpoles in front of its City Hall. Typically, those flagpoles fly the American flag and the POW/MIA flag on one flagpole, the Commonwealth of Massachusetts flag on the second, and Boston’s own local flag on the third. The City occasionally, upon request and approval, will fly another flag for a brief period of time rather than Boston’s flag, typically in conjunction with an event happening at City Hall.

In 2017, Harold Shurtleff, through his organization, Camp Constitution, petitioned to host an event at Boston City Hall, raise a Christian flag, and have members of the clergy speak about the religious history of Boston, the Commonwealth of Massachusetts, and the Constitution. The City denied Camp Constitution’s request to fly the Christian flag.

As noted in Justice Breyer’s opinion,

“As part of this program, Boston approved hundreds of requests to raise dozens of different flags. The city did not deny a single request to raise a flag until, in 2017, Harold Shurtleff, the director of a group called Camp Constitution, asked to fly a Christian flag. Boston refused. At that time, Boston admits, it had no written policy limiting use of the flagpole based on the content of a flag. The parties dispute whether, on these facts, Boston reserved the pole to fly flags that communicate governmental messages, or istead opened the flagpole for citizens to express their own views.”

Justice Breyer goes on to note, “Boston acknowledges that it denied Shurtleff ’s request because it believed flying a religious flag at City Hall could violate the Establishment Clause. And it admits this concern proceeded from the premise that raising the flag would express government speech.”

Following this denial, Camp Constitution sued the City of Boston claiming a violation of the organization’s First Amendment rights. Both the district court and U.S. Court of Appeals for the First Circuit ruled in favor of the City, and the Supreme Court heard oral arguments in the case on Jan. 18.

Why does this decision matter?

This case provided another victory in free speech jurisprudence, affirming the First Amendment rights of all organizations, including religious organizations, and clarifying the understanding of the Establishment Clause, with implications for religious speech at other limited public forums such as schools, city halls, and public libraries.

Becket Law stated that “Boston and the lower courts relied on an outdated understanding of the Establishment Clause [that] often ban[s] religious elements from the public square simply because they are religious.” They continue:

“This error isn’t limited to Boston. For years, government officials (with approval from lower courts) have been censoring religious expression from the public square in fear of violating the Constitution. Many mistakenly think that exclusion of religion is the safest option. This mistake goes beyond a flagpole—similar reasoning has been used to prohibit religious groups from advertising on trains and buses, exclude religious schools from generally available funding programs, and even deny FEMA aid to churches and synagogues damaged by hurricanes.”

This case helps to clarify that misconception. In his concurrence, Justice Kavanaugh addresses this point,

“As this Court has repeatedly made clear, however, a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like. . . On the contrary, a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like. . . Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”

How did the ERLC engage this case?

The ERLC joined an amicus brief asking the Supreme Court to rule in favor of Camp Constitution. Our brief argued that the City of Boston violated the Free Exercise Clause and Establishment Clause and wrongly discriminated against the speech of an organization. As reasoned in our brief,

Providing organizations the opportunity to communicate on public property does not give the government the authority to discriminate based on the viewpoint of their speech, even when the forum is used at other times for the government’s own speech. That conclusion follows from both this Court’s forum analysis under the Free Speech Clause and its Free Exercise Clause precedents requiring religious organizations to be treated on a nondiscriminatory basis when government benefits are dispensed or restrictions imposed.

The ERLC believes our First Amendment rights travel together. A weakening of one is a weakening of all of the foundational rights contained in the First Amendment. The Supreme Court has taken a robust view of these foundational rights, and we are grateful that the justices once again ruled in favor of freedom of speech in the public square.