Shurtleff v. City of Boston

Boston has three flagpoles near its City Hall that generally display the flags of the United States of America (along with the POW/MIA flag), the Commonwealth of Massachusetts, and the City itself. The City, however, allows private parties to request permission to briefly display other flags on the third flagpole, typically in connection with events those parties organize for the public. Over the course of the past 12 years, the City has approved all 284 requests to display flags representing a broad array of groups—without denying a single request. However, when Camp Constitution, a religious group, applied to display its flag for just one hour, the City denied its application, citing concerns that displaying the religious symbol featured on the flag would violate the separation of church and state. Camp Constitution sued, alleging that the City’s decision violated the Free Speech Clause of the First Amendment. The organization lost in the appellate court, which ruled that the flag displays were’ a form of “government speech,” and therefore not subject to First Amendment constraints.

In an amicus brief filed with the Supreme Court, the ACLU and ACLU of Massachusetts argue that Boston’s denial of Camp Constitution’s request to display its flag violated the group’s free-speech rights because the City made its third flagpole a public forum for temporary flag displays by private parties. Having done so, it may not deny private speakers access to the forum based on their viewpoints, including religious viewpoints.

The ACLU’s amicus brief acknowledges that the City’s concerns regarding the proposed flag display were understandable, as displaying a religious flag on government property, especially near a city hall, would in most cases violate the Establishment Clause. But in this case, it would not have done so because the flag was to be displayed only for a single hour, just as hundreds of other groups’ flags had been over the past 12 years. Such a fleeting display as part of a series of other brief private displays would not express a message of religious favoritism or endorsement.