Wednesday Writs: First Amendment in Shurtleff v Boston

Dph414, CC BY-SA 3.0 , via Wikimedia Commons

First thing’s first: I’m not getting into that case. I don’t engage that topic online as a general rule, and I also have not had the mental energy to even read it yet. I’m sure it will be discussed ad nauseum around here on other posts, but it won’t be this one. Sorry.

So, with that out of the way, moving on:

I know, I know. It’s been a while. You’ve missed my weekly roundup of new laws, lawsuits, Supreme Court justice profiles, and deep dives into obscure and not so obscure caselaw. I’ve been around, of course; I jumped in the deep end just a few weeks ago in that whole “groomer” debate. That was… fun. But Wednesday Writs have been on hiatus. I’m sorry about that. I’d like to resolve that will change henceforth, but the best I can say is that I will try. This day job thing has sucked my soul dry and left me bereft of motivation for other thoughtful pursuits.

Nevertheless, I’m back. For this week, anyway.

Never mind what I’ve been up to; what (else) has SCOTUS been up to? As usual, a little of this and a little of that. But it’s opinion season, and while we await some of the doozies let me tide you over with some nice First Amendment red meat. This week’s case of the week is hot off the SCOTUS press: Shurtleff v. Boston.

As you might have astutely surmised, this case comes out of the city of Boston. The case involves a flagpole outside Boston City Hall, of which there are three. Flagpoles, I mean. From one flies Old Glory, from the second the flag of the Commonwealth of Massachusetts, and from the third the flag of the city of Boston – sometimes. The third flagpole can also be used by private groups to fly their own flags for various reasons. Hundreds of such requests have been approved by the city. In fact, no request was denied – until 2017, when a Christian group requested to raise the Christian flag. The City of Boston feared it would run afoul of the Establishment Clause if the request was granted and turned down the group, which was called Camp Constitution and run by Harold Shurtleff.

Shurtleff contended that their refusal to allow the raising of the Christian flag was itself a First Amendment violation, specifically, that the city was engaging in viewpoint discrimination. Shurtleff filed a lawsuit. No doubt had the city granted the request to begin with, some other group would have headed to the courthouse to claim an unconstitutional endorsement of religion by a government entity

The District Court for Boston ruled in the city’s favor, finding that the raising of a flag in front of City Hall is government speech and thus the city officials had a right to turn down a viewpoint it did not wish to express. Mr. Shurtleff filed a petition for certiorari at the Supreme Court, leading to this week’s opinion.

The decision was written by Justice Breyer and was unanimous, though several justices spoke for themselves. All but Alito, Thomas, and Gorsuch joined the majority. Breyer set out the issue, explaining that the case hinges on whether the flag-raising at City Hall is government speech or private speech. If it was private speech facilitated by the government, then the government could not discriminate based on viewpoint. If it was government speech, then the City had the First Amendment right to decline to express a particular opinion. Wrote Breyer:

When the government wishes to state an opinion, to speak for the community, to formulate policies, or to implement programs, it naturally chooses what to say and what not to say. That must be true for government to work. Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans.

A somewhat silly analogy but it does deliver the point.

Here, the City invites private groups to engage in expression on its property. But does that mean that the government is speaking for itself in delivering those messages? The Court thinks not. Considering precedent Breyer cited three factors for consideration in answering this question: “the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.”

Engaging the first factor, Breyer discusses the history of flag-flying. Flags have always been symbolic of government, from the feudal system through modern day. The government also speaks through flags, such as when flown half-mast in mourning, inverted in distress, or raised by a conquering nation. And the flags outside of Boston City Hall usually represent both federal and local government. On balance, the first factor falls in the City’s favor.

Turning to whether or not this particular type of flag flying is viewed by the public as government speech, the Court concedes that the average passerby on a typical day would see the national, state, and city flag and perceive them as an expression of government. However, if the third flag is not the City’s flag but that of a third party – and particularly if the group represented by the flag are on the plaza below having a ceremony of some sort, the casual observer is likely to discern that it is not a government message. Overall, the Court found this factor was of neutral weight.

Finally, the Court considered the extent to which the government shaped or controlled the speech expressed by the flags flown by private groups. The answer, Breyer notes, “is not at all”, which he finds to be “the most salient feature of this case.” While the city regulated the date, time, and place of the flag raising and accompanying ceremony, the more important question is the level of control exerted over the content of the flags.

The City claimed that all of the unique flags that had been flown reflected views and values shared by the City. When flags of other nations were raised, it celebrated the heritage of Bostonians connected to those nations. When flags which promoted diversity were flown, it reflected the city’s commitment to the ideal. However, Breyer points out, it is hard to find the connection between the City’s interests and the flag ceremony held by a local bank.

In addition, the City conceded that the employee in charge of approving flag raising applications had never denied any organization’s application prior to Shurtleff’s, and had never even pre-viewed or pre-approved the content of any flag. The public was encouraged and invited to utilize this “public forum” to hold these ceremonies for recognition or awareness of an organization or a cause. There were no rules or guidelines, written or otherwise, dictating what was and was not allowed for these events.

All told, while the historical practice of flag flying at government buildings favors Boston, the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech—though nothing prevents Boston from changing its policies going forward.

Having determined that the speech expressed by the flag raising ceremonies amounted to the facilitation of private speech, the Court turned to the issue of whether the City had discriminated against the Christian group. This was an easy one; if the government is refusing to extend the use of its forum for private speech based on the viewpoint of the applicant, it has engaged in discrimination in violation of Free Speech.

Concurring in the judgment was Justice Kavanaugh, who wrote separately to reiterate in a single paragraph 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” and that, in fact, the opposite is true. It is not allowing a religious organization the same benefits as secular organizations that is a First Amendment violation.

Alito also wrote his own, significantly longer concurrence, joined by Gorsuch and Thomas. While Alito agreed with the ultimate outcome in Shurtleff’s favor, he did not agree with the use of the three factors the majority considered. Alito would have focused more on the question of whether the government was speaking or not. His concern is that governments may claim something is “government speech” in order to suppress viewpoints it does not want expressed – like Christianity. He recommends a more precise analysis of what constitutes government speech:

In my view, the minimum First Amendment conditions that must be met for expression to count as “government speech” can be identified by considering the definition of “government speech” and the rationale for the government-speech doctrine. Under the resulting view, 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.

Finally, writing for himself and Justice Thomas was Justice Gorsuch, who took the opportunity to air his grievances with a 50 year-old case that has apparently stuck in his craw. The case was Lemon v. Kurtzman, in which the Court held unconstitutional a Pennsylvania law that allowed public funds to reimburse Catholic schools for teachers’ salaries, books and supplies. The case spawned its namesake “Lemon test” for determining whether legislation survives the Establishment Clause. The test asks 1)is there a secular purpose? 2)Does it advance OR inhibit religion? and 3)does it result in “excessive government entanglement” with religion?

About the Lemon test Gorsuch writes “the only sure thing Lemon yielded was new business for lawyers and judges.” Noting that the Court eventually abandoned the test in favor of “a more humble jurisprudence centered on the Constitution’s original meaning,” he blames its persistence in the sphere of bureaucracy for the predicament Boston found itself in here:

…when the petitioners offered their flag, the city flinched. Perhaps it worried: Would the assigned judge’s imagined “reasonable observer” bother to learn about its generous policy for secular groups? Would this observer take the trouble to consult the long tradition in this country allowing comparable displays? Or would he turn out to be an uninformed passerby offended by the seeming incongruity of a new flag flying beside those of the city, State, and Nation? Who could tell? Better to err on the safe side and reject the petitioners’ flag. As it turned out, though, that route only invited years of litigation and a unanimous adverse decision because no government may discriminate against religious speech in a public forum. To avoid a spurious First Amendment problem, Boston wound up inviting a real one. Call it a Lemon trade.

WW 2: OK, so maybe one link about the case I don’t want to talk about. How about that leak? Was it illegal? It seems like probably not, though it is likely career suicide for the leaker.

WW3: Who among us has never carefully drafted an email, proofread it carefully, addressed it to all the intended recipients – and then forgot to hit send? A lawyer defending the City of New York in a lawsuit by protesters says that’s what happened to her, and she was fired for it.

WW4: Five years and 700 golf balls to their property later, a Kingston, Massachusetts family has been awarded $5 million in damages from the Indian Pond Country Club upon which the home sits. ““There’s 26 windows that need to be replaced. The entire siding of the home has to be replaced.”

WW5: The Trump Organization reached a settlement to pay the District of Columbia $750K stemming from misuse of funds from the nonprofit funds to benefit the former president and his family. The legal issue surrounded the using and payments to the Trump International Hotel in Washington, DC.

WW6:

In more First Amendment news, the 7th U.S. Circuit Court of Appeals at Chicago ruled Friday that Wisconsin’s mandatory bar doesn’t violate the First Amendment rights of the state’s lawyers.

WW7: The Disney vs. Governor Ron DeSantis and the State of Florida mess? That has First Amendment issues as well:

“Singling out a business in a way that detrimentally affects its free speech rights is always problematic,” Clay Calvert, a law professor at the University of Florida, told Mediaite. In this case, it’s “textbook viewpoint discrimination” and “presumptively unconstitutional.”

“If Disney can prove that that’s what happened—that there was a retaliation against Disney by the state of Florida, who sought to take away a benefit that the government had previously gave to Disney—that might set for a retaliation claim under the first amendment,” First Amendment lawyer Lawrence Walters told WESH 2 Florida.

“The question is not whether Disney has a ‘right’ to some special tax status; it is whether government officials may use the power of the state to punish a corporation for speaking out on political issues,” writes constitutional lawyer Robert Corn-Revere in commentary for the Foundation for Individual Rights in Education.