Shurtleff, et al. v. City of Boston, et al., No. 20-1800 (S. Ct.). Oral argument set for January 18, 2022 at 10:00 a.m.
Upon application, the City of Boston permits groups to utilize spaces owned or managed by the city for commemorative purposes. Administered in conjunction with those spaces is a three flagpole display at Government Center, Boston’s City Hall.
Applications appear to have been freely granted up until 2017, when a group called “Camp Constitution” applied to the city property manager for permission to raise a “Christian flag” at Government Center to commemorate the role of the Judeo-Christian tradition in Massachusetts history.
Boston had never before denied an application for use of the flagpoles, but Camp Constitution’s application was denied not on the basis of the appearance of the flag proposed to be raised, identical in material respects to the Bunker Hill flag, but on the basis of its name, “Christian.”
The city property manager feared that the brief display of the flag raised Establishment Clause concerns. The city’s law department concurred, as did the United States Court of Appeals, following judgment on an agreed upon statement of facts in the United States District Court.
The First Circuit perceived the flagpoles and the flags displayed upon them to be government speech exempted from the First Amendment speech clause.
Camp Constitution, by its leader, Harold Shurtleff, argues before the Supreme Court that the government speech construction offered by the First Circuit was in error. The city spaces available for private use, open to all but Camp Constitution, are forums governed by the rules applicable to such spaces, which preclude the government from excluding views concerning religion.
Boston argues that Shurtleff is wrong on the facts, notwithstanding that the case was presented on an agreed-upon statement of facts before the trial court. The flagpoles are exclusively government property, Boston asserts, such that any use of the flagpoles is or becomes government speech excluded from First Amendment speech constraints.
The Solicitor General of the United States has joined the proceedings as amicus supporting reversal of the First Circuit decision, asserting that the questions raised in the case affect federally managed lands and federal agencies, such as the U.S. Park Service, upon which properties many groups frequently seek to hold events.
Oral argument will be held at 10:00 a.m. today.