In early May, the Supreme Court issued a unanimous opinion in the case of Shurtleff v. Boston. The case dealt with the question of whether or not the City of Boston’s choice to raise a flag qualifies as government speech. In the case, Shurtleff represented a group that wanted to raise a “Christian flag” for an event that they were holding around the city square. Normally, groups submit an application to have an event on the city square where they can request that a flag be flown alongside the American flag and the flag of the state of Massachusetts. The city has never rejected a group’s request to raise a flag, until Shurtleff’s request. The Supreme Court ruled in favor of Shurtleff, holding that the raising of a flag, or denial thereof, by Boston does not constitute government speech, and that Boston’s denial of Shurtleff’s request was discrimination based on viewpoint.
The Court analyzed several different key precedents such as Walker v. Texas Division, Sons of Confederate Veterans, Inc. The first line of Justice Breyer’s opinion for the Court delineates the Court’s reasoning well. Justice Breyer explains, “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.” The Supreme Court has delivered a great victory for First Amendment advocates and for Americans as a whole.
In many cases, the Court has recognized the government’s ability to control what it says. Justice Breyer observes that this attribute comes from their delegated power by the electorate to speak on their behalf and therefore be able to choose how they do so. The Court has said that things such as statues and monuments put on display by the government amounts to government speech. Moreover, things that the government publishes such as license plates are government speech. This is because in those instances the government has decisive control over the content of said speech.
The key phrasing that makes this case so significant is that Boston’s policy makes their plaza and flagpole in front of City Hall a “public forum”. The Court recognizes this as does Boston. This is the key separator from government speech because as previously mentioned, the government doesn’t control the speech in a public forum. The government is inviting private discourse, while merely providing a place to do so. Justice Breyer notes that a person who may see a flag flying in place of the city’s flag could simply look around and find a group meeting there that is promoting that message. The city never controlled what the groups did other than necessary clerical controls such as date and time management to “avoid conflicts,” the physical plaza, and then provided a hand crank so that groups may hoist their flag themselves.
In this case, the public should be applauding the Court. In what may seem like an inconsequential case about flags, the Supreme Court has protected the people’s right to a public forum. They have prevented a broad expansion of government power to control speech and set an important precedent.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.