Shurtleff v. City of Boston, No. 20-1800, 595 U.S. (May 2, 2022)
Private Flag Permitting at Boston’s City Hall Plaza. Three flagpoles are situated on the public plaza surrounding Boston City Hall. These flagpoles ordinarily display the flag of the United States and the flag of the Commonwealth of Massachusetts. At times the flag of the City of Boston is displayed but the third flagpole is available, upon request and approval, for display of commemorative flags.
Until 2017 the City of Boston approved every application for a permit that was presented to it but stopped short of granting a permit to fly a flag showing a religious symbol where the name of the flag but not the flag itself, mentioned a religious faith.
A Boston City Official thought granting a permit for that flag would offend the Establishment Clause of the First Amendment of the U.S. Constitution. Litigation in the U.S. District Court for the District of Massachusetts and the U.S. Court of Appeals culminated in favor of the City of Boston, and review in the United States Supreme Court was then sought and obtained.
Constitutional Purposes and Constraints. Broadly stated, the Constitution of the United States constrains the government from acting against the interests of the people of the United States. The Establishment Clause checks the power of the state by forbidding the government from adopting a faith as the government’s own, coercing the adoption of a faith, endorsing a faith while excluding others, and other errors. The Free Speech Clause requires that where the government opens up a space for public participation, the government may not exclude or inhibit otherwise lawful speech, including the expression of religious views, in that space without committing the error of “viewpoint discrimination.”
Clauses on a Collision Course, or So It Sometimes Seems. Although in error, it is easy to see how an individual such as the decision-making official in Boston could think that permitting the presence of a flag with a religious symbol would be in error. However, the Establishment Clause applies only to government action. Were the space at City Hall and the flagpole to be considered a public forum for non-government speakers, the Establishment Clause would not preclude, and the Free Speed Clause would require, that all views, including religious views, be permitted.
Justice Breyer’s Judicial Opening Farewell. Justice Breyer wrote the Court’s opinion which unanimously held that the petitioner had been subjected to viewpoint discrimination, requiring that the judgment of the First Circuit be reversed. Perhaps as a parting gift to the nation and the law, the Justice began with clarity and thereafter applied his inquisitive style of jurisprudence.
Government speech and government created forums must be distinguished, he wrote. A government created forum must be open to all without restriction based on viewpoint. Government speech is not so constrained, as the government must be able to provides views and opinions in order to function as a government.
This is all very clear until it is not. In this case, had the city adopted the flag permitting and display process as its own, the city would be engaging in government speech and would not, in the ordinary case, be subject to the First Amendment. On review it did not appear that the city was engaged in government speech, and thus its refusal to permit the petitioner’s flag was viewpoint discrimination.
Meaningful distinctions between government and private speech become blurred where private speech occurs at the government’s invitation, where it is not always clear whether the government has transformed private speech into government speech, or whether the government has simply created a forum for private speech.
Today the Court has opined that a ‘holistic’ approach must be undertaken to determine whether “the government intends to speak for itself or to regulate private expression.” Slip. Op. at 6. Introducing its approach, the Court offered:
Our review is not mechanical; it is driven by a case’s context rather than the rote application of rigid factors. Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.
Slip Op. at 2.
In this case, the Court found evidence favoring the government except that the city had invited all participants and had approved all applications except the one in issue in this case, which was denied because the name of the flag, not the flag itself, signified a religion. The city’s self-perception that the program was government speech stands in contrast to its practice of unrestrained permitting except in this case.
Boston’s position was further weakened, the Court opined, because Boston had no written policies or guidance concerning flag permits, a situation which Boston might choose to rectify in the future.
A brief reiteration: Justice Kavanaugh concurs. This case arose, Justice Kavanaugh has noted, because a city official misunderstood the Establishment Clause. Speech principles, not the Establishment Clause, forbid the exclusion of religious speech in public activity. All views, secular or not, must be treated equally in public programs, benefits, facilities and related settings and activities.
The end may be all right, but the means, not so much. Justice Alito, joined by Justices Thomas and Gorsuch, concurs in the judgment and criticizes the controlling opinion. Justice Alito disfavors the application of facts such as history, public perception and government control as guidance in analysis. The core question is whether the government is speaking or regulating private opinion. Enlisting government speech analysis in viewpoint discrimination cases may cause more distortion than clarity.
Such distortion is dangerous, Justice Alito writes, as the government may claim to have adopted speech as its own to conceal favoritism among speakers. The critical question is who the speaker is. The Court errs, in Justice Alito’s view, in asserting that precedent has established a settled methodology to be applied to government speech analysis. No such test can be found. The totality of the circumstances, not limited by key factors, governs such cases and review of particular factors is helpful only to the extent that it aids in the identification of the speaker.
Government control is significant in identifying who a speaker is because speech over which the government exercises no control is not government speech, yet the concept of government control is central to analyzing censorship. Requiring or withholding government control of private speech can be censorship but granting permission to speak does not transform speech into government speech.
…neither “control” nor “final approval authority” can in itself distinguish government speech from censorship of private speech, and analyzing that factor in isolation from speaker identity flattens the distinction between government speech and speech tolerated by the censor. And it is not as though “actively” exercising control over the “nature and content” of private expression makes a difference, as the Court suggests, ibid. Censorship is not made constitutional by aggressive and direct application.
Alito concurrence in judgment, Slip. Op. 4
While history may aid in illustrating what was considered in the past, it cannot serve to dictate results in a particular matter. An overemphasis on tradition in this case favors the government simply because governments traditionally use flags for government messaging, but this cannot be of the consequence the Court affords it where the government activity in question is unorthodox, not traditional.
A focus on public perception yields no good result where it cannot be presumed that the public can know, from casual observation, who is speaking, where fear of misperception of private speech or government speech could promote exclusion of views, and where the government may always make plain to the public that the views expressed are not its own.
The issue is not simply one of fashioning an analysis, Justice Alito stresses. Risks of error pervade the Court’s “factored” test, but the greatest risk is the risk of aggressive application of the concept of government controls in service of censorship.
Finally, creating a three-factor test but applying only one factor to direct the outcome highlights the weakness of such an approach.
Justice Alito would analyze whether the government is purposefully presenting its own message through its own agent without abridging private speech. There should be no confusion about government speech where private citizens are ‘deputized’ to speak on the government’s behalf or where a private entity cedes its platforms for government speech.
The Unbearable Persistence of Lemon. Justices Gorsuch and Thomas concur in the judgment, but join to point to the errors not rectified but instead introduced into Establishment Clause cases by the Lemon test, itself a factor analysis which only serve to underscore how aptly the test is named.
Reliance on original meanings rather than on the much-loathed Lemon approach would return the law and the courts which administer the law to clarity after decades of great confusion:
“The thread running through these [Establishment Clause] cases derives directly from the historical hallmarks of an establishment of religion—government control over religion offends the Constitution, but treating a church on par with secular entities and other churches does not.
Gorsuch concurrence in judgment, Slip Op. at 12. (citation omitted.)