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May 05

Third-Party Flags on Government Property: Government Speech or Public Forum? SCOTUS Weighs In

Posted on May 5, 2022 at 12:31 PM by Legislative Staff

The Supreme Court of the United States (SCOTUS) in a unanimous decision ruled that the City of Boston violated the free speech rights of a citizen when the city refused a request to fly a Christian flag on a flagpole outside of City Hall.  

The Court’s decision in Shurtleff v. City of Boston turned on whether or not the City’s flag-raising program constituted private, rather than government, speech. While the Free Speech Clause of the First Amendment does not regulate government speech, it does restrict government regulation of private speech. In weighing the factors and the facts presented in the case the Court determined that the City’s flag-raising program was not government speech, and in turn, by refusing the request to fly a Christian flag because of its religious message, the City violated the Free Speech Clause of the First Amendment.

The Court found most salient to this determination that Boston neither actively controlled the flag raisings nor shaped the messages the flags sent. Given the flag-raising program’s history with its lax standards and control over what flags could be flown, the City had not maintained that the flagpole was reserved for government speech, and it was in fact more of a public forum.

Local governments that allow third-parties to fly flags on government flagpoles and property should take note of this decision. Failure to maintain standards to ensure that flags flown on government property reflect the government’s opinion and act as an extension of the government speech could result in flags being flown on government property contrary to a message the local government wants to convey. Local governments should review their policies with their municipal attorneys to ensure compliance with the Supreme Court decision.

Contact:  Frank Marshall, Esq., Associate General Counsel, or 609-695-3481 x 137. 

Tag(s): SCOTUS