Outside of Boston City Hall, there are three flagpoles: one flies the American flag, the second files the Commonwealth of Massachusetts’ flag, and the third flies the City of Boston’s flag. Since at least 2005, the city has allowed groups to hold gatherings and ceremonies to raise flags on the third flagpole in place of Boston’s flag. Between 2005 and 2017, Boston approved at least 50 unique flags to be flown at 284 ceremonies—there is no record of Boston previously denying a request to fly a flag outside City Hall. In 2017, the City of Boston denied a Christian group’s request to fly a Christian flag on one of the three flagpoles. Boston allowed the group to use the adjacent plaza for an event but refused to allow the group to fly its flag out of concern that it would violate the Establishment Clause of the First Amendment.
The United States Supreme Court found that the city’s refusal to allow the Christian flag was impermissible viewpoint discrimination in violation of the group’s First Amendment right to free speech. In this instance, allowing citizens to fly flags on the flagpole outside of City Hall was not “government speech,” but “private speech.” Speech is considered “government speech” when a public body itself expresses an opinion—for example, and as used in the Court’s opinion, Boston could express support for the Boston Red Sox and would not run afoul of the First Amendment by simultaneously declining to express support for the New York Yankees. However, when a public body creates a public forum for the expression of private speakers’ viewpoints, then it cannot deny speakers based on the content or viewpoint of their speech (with some exceptions).
Here, the Court looked at many factors and specifically looked at Boston’s own flag-flying protocol and history. Because Boston had allowed about 50 other flags to fly in front of City Hall throughout the years and had not previously denied any other application until the Christian group applied, the Court found that denying the flag based on the content and viewpoint of the flag did violate the group’s right to free speech. While the Court determined that a public body flying flags can be considered government speech in many instances because public bodies do express themselves through the use of flags, the Court found that Boston had little to no involvement with the selection of private flags and ceremonies in front of City Hall. In fact, the Court compared Boston’s flag policy to other cities and public bodies’ flag policies and found that there are some that expressly state that its flag poles are not public forums for discussion. Boston had no such policy, and, in fact, barely had a policy at all regarding the flagpoles. Finally, Boston conceded to the Court that it denied the flag based on its contents and viewpoint—that of a Christian organization—and denial of speech based on content and viewpoint violates the free-speech rights afforded by the First Amendment.
Even though this case involved a city hall, it is an important reminder about the differences and nuances between government speech and when a public body creates a public forum where private opinions and viewpoints can be expressed. The dividing line can be blurry and does not always fit into a rigid analysis. As public bodies, school districts are subject to the requirements of the First Amendment free speech clause and should be mindful about denying expression based on content or viewpoint. In particular, school districts should review their policies and/or practices regarding use of facilities and other opportunities for citizens, students, and/or staff to participate in public forums in connection with the district.
Contact any attorney in our Litigation practice group if you have any questions about this case or your operations as a public school district.