This Report summarizes opinions issued on April 28 and May 2, 2022 (Part I); and cases granted review on April 25 and May 2, 2022 (Part II).

Opinion: Shurtleff v. City of Boston, Mass., 20-1800

Shurtleff v. City of Boston, Mass., 20-1800. The Court unanimously held that the City of Boston violated the Free Speech Clause by denying a religious organization’s request to raise a religious flag at City Hall after previously approving similar requests by secular organizations. Three flagpoles stand in the plaza of Boston City Hall. The first two fly the American and Massachusetts flags. The third pole usually flies Boston’s flag, but since 2005 the city has allowed at least 50 unique flags to be raised in 284 ceremonies. Many ceremonies have involved the flags of foreign countries, and several have been associated with groups or causes such as Pride Week, emergency medical service workers, and a community bank. Boston never refused a request to raise a flag until July 2017, when Harold Shurtleff, the director of an organization called Camp Constitution, asked to raise a “Christian flag” (a red cross on a blue field against a white background). The city denied the request, citing concerns that flying a religious flag at City Hall would violate the Establishment Clause. Shurtleff sued, arguing that Boston’s refusal violated his right to free speech under the First Amendment. The district court held that flying private groups’ flags at City Hall amounted to government speech, and the City could decline to raise the Christian flag. The First Circuit affirmed. In an opinion by Justice Breyer, the Court reversed, holding that Boston’s flag-raising program does not constitute government speech, and that the City had engaged in unlawful viewpoint discrimination.

The Court observed that the Free Speech Clause allows the government to decline to express a view; the government may choose “what to say and what not to say.” But the boundary between government speech and private expression may blur when the government creates a forum for private speakers to express their views. When that happens, the Court “conduct[s] a holistic inquiry designed to determine whether the government intends to speak for itself or to regulate private expression.” This review is not “mechanical”; the Court considers factors such as (1) the history of the expression at issue, (2) the public’s likely perception as to who is speaking, and (3) the extent to which the government has controlled the expression. In the past, the Court has found that permanent monuments in public parks constitute government speech even though the monuments were privately funded because the government selected which monuments to accept and display, and then took ownership of them. Similarly, license plate designs are government speech because the government maintains control over the messages conveyed, actively reviews designs, and rejects design proposals. In contrast, granting trademark protection for words or symbols generated by private registrants is not government speech because the government does not exercise sufficient control over the nature and content of the marks.

Applying this multi-factor analysis, the Court found that some evidence favors Boston and some favors Shurtleff. In Boston’s favor, the speech at issue involves flying flags―a communicative act―at the seat of government. A passerby might see a privately-raised flag and believe it conveys a message on the government’s behalf, or she might associate the flag with the group in the plaza that raised the flag and conducted the ceremony. But the Court found that neither the act of flying a flag on government property nor the public’s likely perception of that act was dispositive. Instead, the “most salient feature of this case” is “the extent to which Boston actively controlled these flag raisings and shaped the messages the flags sent,” which was “not at all.” Although the city controlled the date, time, and physical premises, it told the public that it sought to “accommodate all applicants” who wished to hold events at Boston’s public forums, and the city’s practice was to “approve flag raisings, without exception.” Indeed, the city had no policies or internal guidance about which flags would be flown, and it had never denied a request before Shurtleff. Thus, Boston’s “come-one-come-all attitude” is more like the neutral granting of trademark protection than approving public monuments or license plate designs. Having found that the flag-raising program does not constitute government speech―and therefore did not raise Establishment Clause concerns―the Court found that Boston impermissibly discriminated against Shurtleff based on his religious viewpoint.

Justice Kavanaugh concurred, writing that “a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like.” He emphasized that “a government may not treat religious persons, religious organizations, or religious speech as second-class.”

Justice Alito concurred in the judgment, joined by Justices Thomas and Gorsuch. In their view, the majority’s three-factor test “obscures the real question in government-speech cases: whether the government is speaking instead of regulating private expression.” Justice Alito warned that courts must be careful when a government claims that speech by private speakers is actually government speech because there is a risk that the government simply favors one private speaker over others based on their viewpoints. For example, the third factor in the majority’s three-factor test looks to “the extent to which the government has actively shaped or controlled the expression.” On the one hand, that makes sense because “speech by a private individual or group cannot constitute government speech if the government does not attempt to control the message. But control is also an essential element of censorship.” Said the concurrence, “To prevent the government-speech doctrine from being used as a cover for censorship, courts must focus on the identity of the speaker.” The concurrence argued that history, perception, and control may not adequately show the identity of a speaker, and that the majority failed to adequately explain why the third factor trumps the first two in this case.

Justice Alito argued that “government speech occurs if―but only if―a government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech.” Under this framework, the government can speak through private actors either by enlisting them as its agents or by adopting a private actor’s medium of expression (for example, taking ownership of a monument in a city park). “Otherwise, the government is simply providing a forum for private parties to submit their own productions and usual First Amendment principles apply.” Justice Alito found that flag-raising ceremonies in front of Boston’s City Hall “were plainly private speech within a forum created by the city, not government speech.” The city did not indicate an intent to communicate a message through its program, did not deputize private speakers, and did not adopt expressive content. The flags allowed by the city “reflected a dizzying and contradictory array of perspectives that cannot be understood to express the message of a single speaker.” The city’s policy and practice showed that the flagpole was a public forum, and as such, the city could not exclude religious viewpoints based on Establishment Clause concerns.

Justice Gorsuch wrote a separate concurring opinion, joined by Justice Thomas, submitting that the Court itself is partially to blame for Boston’s concerns about violating the Establishment Clause. Justice Gorsuch criticized the test set out in Lemon v. Kurtzman, 403 U.S. 602 (1971), which asked whether a government action (1) had a secular purpose, (2) had the effect of advancing or inhibiting religion, and (3) “excessively entangled” church and state. The test was later modified in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989), asking whether a “reasonable observer” would consider the government’s action to be an “endorsement” of religion. In Justice Gorsuch’s view these tests “produced more questions than answers” and put policymakers in a difficult position with the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other. Justice Gorsuch noted the difficulty in defining a “reasonable observer,” and he argued that Lemon “devolved into a kind of children’s game” where a “lazy, uninformed,” and “irritable” observer is asked how he “feels” about a government display. Justice Gorsuch wrote that this case illustrates the problem, because the flags of many nations and private groups bear religious symbols, and Boston previously flew a flag presented by a secular group even though the flag had a cross similar in size to that on the Christian flag.

Justice Gorsuch suggested two reasons why governments continue to apply the Lemon test even though the Court has not done so in nearly two decades. “First, it’s hard not to wonder whether some simply prefer the policy outcomes Lemon can be manipulated to produce.” Depending on how one describes a “reasonable observer,” the test can be “guaranteed to spit out results more hostile to religion than anything a careful inquiry into the original understanding of the Constitution could sustain,” but “for some, that may be more a virtue than a vice.” Second, “Lemon’s abstract three-part test may seem a simpler and tempting alternative to busy local officials and lower courts.” Justice Gorsuch admitted that the historical approach employed until the mid-1900s “requires serious work and can pose its challenges.” But he identified some ways in which governments historically established religion. Beyond formally declaring an established church, founding-era governments (1) exerted control over church doctrine and personnel, (2) mandated church attendance and punished failure to participate, (3) punished dissenting churches and individuals, (4) restricted political participation by dissenters, (5) provided financial support for the established church and denomination, and (6) used the established church to carry out civil functions, often giving the church a monopoly over a specific function. The concurring justices favored a history-based approach, arguing that the “Court long ago interred Lemon, and it is past time for local officials and lower courts to let it lie.”