Unanimous Supreme Court Flies Flag for Free Speech in Boston Case

The Supreme Court ruled unanimously on Monday in favor of free speech.

The court ruled that the city of Boston was in violation of the Constitution when it banned a group from flying a Christian flag on a flag pole.

The court found that the city was not endorsing any message behind the flags and that the flag and what it represents did not constitute government speech.

The Free Speech Clause of the First Amendment was violated when it refused to allow a religious group to raise its flag.

Boston used to allow groups to raise a flag on one of the city's three flags in conjunction with ceremonies held on the City Hall plaza. The city approved the flying of 50 different flags over a period of 12 years.

It had an unofficial policy to accommodate all applicants. The city denied Harold Shurtleff's request to fly a Christian flag in conjunction with an event on the plaza celebrating the civic and social contributions of the Christian community.

The city had never denied other groups' requests to fly a flag, including the flag of a local bank.

The right to speak and assemble is protected by the First Amendment.

The high court divided public forums into three categories: traditional public forums, limited or designated public forums, and nonpublic or private forums.

The city acknowledged that by allowing the public to participate in flag-flying on the plaza, it had established a traditional public forum.

The line between a forum for private expression and the government's own speech is important, but not always clear.

When the government invites the public to participate in a program, the court has to look at particular factors to determine whether the government will speak for itself.

The history of the particular expression, the public's perception as to who is speaking, and the Supreme Court's decision in Walker v. Texas Division, Sons of Confederate Veterans were all included in these.

According to the record, Boston did not control the flag-raisings or shape the messages that the flags sent. The city did not have a policy about what flags groups could fly and what flags they could communicate.

All flag-raisings had been approved prior to Shurtleff's request. The city's refusal to let Shurtleff fly his flag was viewpoint discrimination and violated the Free Speech Clause.

Breyer wrote.

When the government encourages diverse expression—say, by creating a forum for debate—the First Amendment prevents it from discriminating against speakers based on their viewpoint. … [I]t may not exclude speech based on ‘religious viewpoint; doing so ‘constitutes impermissible viewpoint discrimination.’ 

The concurring opinion was the shortest we'll see all term, and it was written by Justice Kavanaugh.

Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.