WBOSTON HEN opened its new town hall in 1969, the building’s brutalist style drew cheers and jeers. On January 18, another dispute related to the site reached the United States Supreme Court. Shurtleff v Boston City asks if Boston violated an organization’s free speech when a bureaucrat refused to fly its flag with a cross. A lopsided majority of justices seem to think the city violated the First Amendment.
The plaza in front of Boston City Hall is often adorned with flags from the United States, Massachusetts, and Boston. But since 2005, the city has occasionally changed its flag to that of a foreign country to commemorate anniversaries or honor visitors. It has also raised flags celebrating gay pride, Malcolm X and the Battle of Bunker Hill. But in 2017 he turned down a request from Camp Constitution, a group dedicated to the appreciation of America’s “Judeo-Christian moral heritage,” to fly what it called a “Christian flag.”
It was the first time Gregory Rooney, the commissioner in charge, had turned down an application. Boston had a duty to keep the government separate from the church, he reasoned. Other flags may have included religious symbols, such as that of Portugal, with its depictions of Christ’s wounds, but no group described their flag in religious terms when seeking airtime.
Camp Constitution sued and lost in two lower courts. The First Amendment “restricts government regulation of private speech in government-appointed public forums,” the First Circuit Court of Appeals wrote, but “such restrictions do not apply to government speech.” Since Boston owned and managed the flagpoles, the messages on the pennants were, the judges reasoned, those of the city itself.
This premise did not have a friendly reception among the magistrates of the Supreme Court. They seemed to agree with the flag raisers that, in light of “284 flag-raising approvals, no denials, and generally no reviews” over a span of 12 years, Boston had created a public forum. Opposing only when the city uncovered a religious viewpoint behind the Camp Constitution flag is “viewpoint discrimination,” the group’s attorney argued, anathema to free speech.
None of the six conservative justices accepted Boston’s defense that the flagpole has served as a megaphone for the city’s point of view. “Does the mayor of Boston really approve of the Montreal Canadiens?” Chief Justice John Roberts asked, referring to a week in 2014 when Boston flew the flag for the rival hockey team. Well, that was the mayor who made a bet, the Boston lawyer explained; if the Boston Bruins had beaten the Canadiens, the Bruins’ flag would have flown over Montreal.
The Boston attorney also faced critical questions from liberal justices. It’s understandable why Rooney thought flying the Christian flag would be contrary to separation of church and state, Judge Elena Kagan said, but her decision was based on a misunderstanding. A permanent cross at city hall may be prohibited, but “in the context of a system where flags go up, flags go down, different people have different kinds of flags,” there’s no real concern.
With prospects of prevailing in Shurtleff almost nil when the court rules in the spring, cities may still have a way to reject swastika flags and accept others. If the city exercised more control over every request and brought an official to every flag-raising, Judge Amy Coney Barrett explained, it would be kosher for Boston to say it is “happy to celebrate and communicate Juneteenth pride,” for example, but refusing to “participate in the raising of the Proud Boys flag.” ■
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This article appeared in the US section of the print edition under the headline “Pole dance”.