The City of Boston has three flagpoles in the plaza in front of its city hall. Typically, the city displays an American flag and POW/MIA flag on one pole and the flag of Massachusetts on the second pole. The third pole is used for the City of Boston flag, or alternatively, the flag of a third party. The third pole has been used for flags of foreign nations, civic organizations, the LGBT rainbow flag, and others. Parties can submit applications to fly their flag on the third pole, and the city has guidelines that prohibits flags that involve illegal or dangerous activities or conflict with scheduled events. The city reviews applications to determine whether a flag is consistent with the city’s message, policies, and practices, but does not have any guidelines as to the content of the flags. When an applicant was denied the opportunity to place a “Christian flag” on the City Hall on the grounds that the city refrains from flying religious flags on the Plaza, he filed suit.

Late last month, on the plaintiff’s motion for preliminary injunction, a federal district court found for the city. The court determined that the display of flags in front of City Hall constituted government speech. Applying the factors established by the Supreme Court in Pleasant Grove City v. Summum and Walker v. Texas Division, Sons of Confederate Veterans, the court found that flags are a longstanding form of government speech, the flags in front of City Hall are likely understood to be government speech, and the city has effective control over the flags in front of City Hall. Finding that the flags constitute government speech, that effectively ended the First Amendment inquiry.

Nonetheless, the court also found that, even if the flags were not government speech, the flagpoles constituted a limited public forum in which the city had regulated in a reasonable, viewpoint-neutral manner. Because the flagpoles are not opened to all speakers and have not historically constituted a public forum, the court easily found that the flagpoles are a limited public forum. Because the city has chosen to exclude religion—which is an entire subject matter of speech—the court found the city’s policy to be viewpoint neutral and reasonable.

The court also found that the plaintiff was unlikely to succeed on the merits of his Establishment Clause and Equal Protection Clause claims.

Shurtleff v. City of Boston, No. 18-CV-11417-DJC, 2018 WL 4119982 (D. Mass. Aug. 29, 2018).