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Can A Christian Flag Fly At City Hall? SCOTUS Will Have To Decide

This text is a part of TPM Cafe, TPM’s residence for opinion and information evaluation. It first appeared at The Conversation.

There are three flagpoles outdoors Boston City Corridor. One flies the USA flag. One other flies the Massachusetts state flag. What can – and may’t – fly from the third is a matter being taken up by the Supreme Court docket.

On Jan. 18, 2022, the Supreme Court docket will hear oral arguments in Shurtleff v. Boston. The case addresses whether or not town violated the First Modification by denying a request to briefly increase the Christian flag on a flagpole outdoors City Corridor, the place Boston has briefly displayed many secular organizations’ flags.

The case raises vital questions on free speech at a time when many members of the Supreme Court docket appear involved about restrictions on religion. The courtroom’s determination will seemingly make clear a number of free speech doctrines, impacting how courts nationwide interpret the First Modification’s ensures.

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Shurtleff v. Boston additionally highlights disagreements concerning the nature and scope of freedom of speech, the sort of disputes I examine in my work on free speech and the First Amendment.

Case background

Boston permits teams to request {that a} flag briefly fly alongside the American and Massachusetts flags at City Corridor to mark particular events, changing town flag that normally occupies the third put up. Previous examples embody flag requests from the Chinese language Progressive Affiliation and the Nationwide Juneteenth Observance Basis.

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In 2017, Camp Structure, a New Hampshire-based group, requested to fly the Christian flag, which has a cross within the higher left nook and was designed by a Sunday college trainer and a missionary govt within the late 1800s. Right this moment, some Protestant denominations show the flag inside their church buildings.

Camp Structure requested to fly the flag as a part of a deliberate occasion “to celebrate the civic contributions of Boston’s Christian community.” The group says its mission is “to boost understanding of our Judeo-Christian ethical heritage, our American heritage of braveness and ingenuity, together with the genius of our United States Structure, and the appliance of free enterprise.”

Boston denied the request. Town cited issues that elevating the Christian flag at Boston City Corridor would violate the First Amendment’s institution clause, which bars the government from selling explicit religions over others. After making a second request, which Boston additionally denied, Camp Structure sued.

A federal district courtroom and the First Circuit Court docket of Appeals sided with Boston on the grounds that flying a flag on the third flagpole was authorities speech, not non-public speech – and due to this fact town was entitled to refuse to fly the Christian flag on its flagpole.

Camp Structure appealed to the Supreme Court docket, which granted assessment.

The case’s final result will seemingly hinge on the Supreme Court docket’s willpower of whose views are represented by the flagpole outdoors City Corridor: the non-public group whose flag is briefly flying, or the federal government. In different phrases, this case is about who’s “talking” when that flag goes up, and whose free speech rights are protected.

If the courtroom determines that Camp Structure is talking, then a framework the courtroom has developed, generally known as the “public forum doctrine,” will apply. This might seemingly end in a ruling favoring Camp Structure.

If the courtroom determines that town of Boston is talking, then the courtroom’s government speech doctrine will apply. This might seemingly end in a ruling favoring Boston.

Public discussion board doctrine

Federal, state and native governments oversee all kinds of public areas, reminiscent of parks, universities and courthouses, simply to call just a few. These areas serve totally different features, a few of which require extra regulation of speech than others.

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The Supreme Court docket has organized authorities areas into a number of classes, every of which allows several types of restrictions on free speech. This set of classes and permitted restrictions is known as the public forum doctrine.

Areas like public parks and sidewalks are thought of public boards, the class that allows the fewest restrictions on speech. In a public discussion board, a authorities can by no means prohibit speech based on viewpoint – particular positions on a subject – and is severely restricted as to when it might prohibit speech based on content – a given matter.

Usually, a flagpole outdoors a metropolis corridor wouldn’t be thought of a public discussion board. Nevertheless, the Supreme Court docket additionally acknowledges a separate class, “designated public boards,” that are areas the federal government converts into public boards. In a delegated public discussion board, free speech regulation is restricted in the identical means it will be in a public discussion board.

A white flag with a red cross in the corner flies below an American flag, next to a church steeple.
A Christian flag flies beneath the American flag subsequent to a church steeple. nameinfame/iStock via Getty Images Plus

In Shurtleff v. Boston, each events agree that the world surrounding the flagpole is a public discussion board. However they disagree over whether or not the flagpole itself is a delegated public discussion board. Camp Constitution argues that Boston has turned the flagpole into a delegated public discussion board by permitting different teams to fly their flags there. In the meantime, Boston argues that it has not, as a result of town retained management by allowing restricted varieties of teams to lift their flags.

Camp Constitution notes that Boston beforehand accepted 284 requests to lift different flags, and that there is no such thing as a file of a previous request being denied.

However Boston counters that none of these earlier requests had been for non secular flags. The city argues that solely two varieties of flags have been permitted: flags representing territories, nations and ethnicities, and flags related to publicly acknowledged days of observance, reminiscent of Veterans Day and LGBTQ Pride Month. Boston argues that such restricted classes of approval aren’t what one would anticipate in a delegated public discussion board, and that that is proof that Boston has not turned its flagpole into a delegated public discussion board.

Authorities speech doctrine

Over 30 years in the past, in Rust v. Sullivan, the Supreme Court docket acknowledged that the federal government itself is a speaker with First Modification rights – an thought generally known as the government speech doctrine. Authorities speech just isn’t topic to the general public discussion board doctrine. As an alternative, the federal government has a lot better discretion in deciding which messages it endorses.

Boston argues that elevating a flag on the third flagpole at City Corridor is authorities speech and due to this fact town has the correct to find out what views it needs to precise on its flagpole. Camp Structure disagrees, sustaining that the flagpole is a delegated public discussion board and due to this fact few restraints on non-public teams’ free speech are allowed on the flagpole.

Each events’ arguments depend on competing interpretations of the federal government speech doctrine put ahead by the Supreme Court docket in two instances, Pleasant Grove v. Summum and Walker v. Texas Division, Sons of Confederate Veterans.

In 2009, the Supreme Court docket held in Nice Grove v. Summum that the everlasting monuments in a park owned and operated by the city had been authorities speech. The Supreme Court docket’s unanimous determination allowed the city to disclaim a request from a small religious group, Summum, to put in a everlasting monument expressing its beliefs, regardless that the park had beforehand accepted a monument of the Ten Commandments.

In 2015, the Supreme Court docket held in Walker v. Texas Division, Sons of Confederate Veterans that license plates had been authorities speech. This permitted Texas to disclaim a request for a specialty license plate that includes the Accomplice flag, regardless that Texas supplied a variety of different specialty plates. Not like Nice Grove v. Summum, this case was determined by a slim 5-4 majority.

Shurtleff v. Boston will seemingly require the courtroom to additional make clear the federal government speech doctrine. The central difficulty is that this: When one other flag briefly replaces Boston’s personal, who’s talking?

Mark Satta is an assistant professor of philosophy at Wayne State University.

This text is republished from The Conversation beneath a Inventive Commons license. Learn the original article.

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