The Supreme Court unanimously sided with conservative activist Harold Shurtleff in his lawsuit against the city of Boston over his request to fly a Christian flag outside City Hall. The request was made to commemorate Constitution Day on Sept. 17, 2017. The city rejected his request.
“Because the flag-raising program did not express government speech, Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment,” the court wrote in its ruling. “When the government does not speak for itself, it may not exclude private speech based on ‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination.’”
Occasionally, the city takes its own flag down outside of city hall and temporarily hoists another flag. The city had approved 284 consecutive applications to fly flags, usually those of other nations, before it rejected Shurtleff’s request. Lower courts sided with the city in Shurtleff’s lawsuit. At question was whether the flag-raising program is an act of the government.
“If the former, Boston is free to choose the flags it flies without the constraints of the First Amendment’s Free Speech Clause,” Justice Stephen Breyer wrote in one of his final opinions before he is set to step down from the court in June. “If the latter, the Free Speech Clause prevents Boston from refusing a flag based on its viewpoint.”