Just when the looney Left has convinced the Democrat half of the country that the Supreme Court has been hopelessly politicized by a “Rightwing majority” comes a much-needed unanimous decision on free speech and religious liberty. The case is Shurtleff v. Boston, 20-1800.
The Associated Press reported late yesterday that the Supreme Court ruled Monday that Boston violated the free speech rights of a conservative activist when it 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 the activist, 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.
Occasionally, the city takes down its own pennant and temporarily hoists another flag.
Shurtleff and his Camp Constitution 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.
The city had approved 284 consecutive applications to fly flags, usually those of other nations, before it rejected Shurtleff’s because it was a Christian flag. The city said he could fly a different banner, but Shurtleff refused, and lower courts upheld the city’s decision.
The AP reported the high court said the lower courts and the city were wrong. The case hinged on whether the flag-flying is an act of the government, in which case Boston can do whatever it wants, or private parties like Shurtleff, Breyer wrote.
Attorney Mathew Staver, representing Shurtleff, argued during oral arguments that the city's policy specifically used the phrase "public forum," which would indicate that the flags would be an expression of the private speech of the group that applied.
“Finally, we look at the extent to which Boston actively controlled these flag raisings and shaped the messages the flags sent. The answer, it seems, is not at all. And that is the most salient feature of this case,” Justice Breyer wrote in an opinion that also riffed on the brutalist architectural style of Boston’s City Hall and the Siena, Italy-inspired 7-acre plaza on which it sits.
Breyer wrote that “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.”
In cases like this, where "a government invites the people to participate in a program," he continued, "[t]he boundary between government speech and private expression can blur."
In order to decide whether speech like the flag program is government or private speech, Breyer said according to reporting by FOX News, the court has to take a ‘holistic’ approach that looks at the context of the situation. In the past, he said, the court has looked at history, the likely public perception of the speech, and "the extent to which the government has actively shaped or controlled the expression."
Breyer noted that the city employee who fields flag applications testified that before Camp Constitution's application, he had never even asked to see a flag before granting approval or even before they were raised.
"The city's practice was to approve flag raisings, without exception," Breyer wrote.
Upon concluding that the flag program was not government speech, Breyer next turned to the question of whether denying Shurtleff's application was viewpoint discrimination that violated the First Amendment. In a brief analysis, the court ruled that it was.
Boston had acknowledged that they denied the application because of its religious content, due to their belief that it would have been government speech. Once the court decided that there was no government speech involved, that spelled the end of the city's case.
"Under our precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause," Breyer wrote.
Shurtleff v. Boston