Shurtleff v. City of Boston
928 F.3d 166
1st Cir.2019Background
- Harold Shurtleff, director of Camp Constitution, sought a permit to temporarily raise a Christian flag on one of three City Hall Plaza flagpoles for a September 2017 event; the City denied the flag request but allowed the event to proceed.
- Two of the three poles routinely fly U.S. and Massachusetts flags; the third normally flies the City flag but has occasionally displayed third-party flags (national, civic, and cause flags).
- The City has no written flag-content policy, but the Commissioner of Property Management reviews flag requests to ensure consistency with the City’s messages and stated practice of refraining from flying non-secular flags.
- Shurtleff sued the City and the Commissioner, asserting First Amendment (free speech and public-forum), Establishment Clause, and Equal Protection claims, and moved for a preliminary injunction requiring the City to permit the Christian flag.
- The district court denied the preliminary injunction, concluding the City’s selection of flags constitutes government speech; the First Circuit affirmed, finding the government-speech analysis controlling and Shurtleff unlikely to succeed on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether temporary third-party flags flown on the City Hall pole constitute government speech or private speech in a public forum | Shurtleff: poles are a designated public forum; temporary, privately owned flags are private speech entitled to forum analysis | City: choice of which flags to display is government speech because flags communicate government messages, observers attribute the display to the City, and the City controls which flags fly | Held: Government speech — Summum/Walker factors favor government speech; not a public forum |
| Whether permanence or private ownership precludes government-speech classification | Shurtleff: Summum/W alker require permanence or government ownership/control over private property to be government speech | City: permanence and private ownership are not required; government can convey message even when assisted by private sources | Held: Permanence and private ownership are not required; government speech applies despite temporary/private flags |
| Whether the City’s practice violates the Free Speech Clause by viewpoint discrimination | Shurtleff: policy excludes his religious flag while permitting other third-party flags, amounting to viewpoint discrimination | City: choice to refrain from flying non-secular flags is government speech and thus not subject to Free Speech forum restrictions | Held: No likely Free Speech violation because City speech is government speech and not subject to forum doctrine |
| Whether the City’s actions violate the Establishment Clause | Shurtleff: excluding a Christian flag but allowing other (allegedly secular) flags shows hostility to religion or preference for secular views | City: record contains no instance of permitting explicitly religious flags; allowed flags with incidental religious symbols are secular for Establishment analysis | Held: Establishment claim unlikely to succeed on present record; no evidence of sectarian preference or hostility |
Key Cases Cited
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (permanent monuments in public parks constitute government speech)
- Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015) (state specialty license plates are government speech; Summum framework refined)
- Johanns v. Livestock Marketing Ass'n, 544 U.S. 550 (2005) (government maintains message control when it exercises final approval authority)
- Matal v. Tam, 137 S. Ct. 1744 (2017) (observing limits of government-speech doctrine; noting its outer bounds)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (forum analysis requires intentional government opening of nontraditional forum)
- Sutliffe v. Epping School District, 584 F.3d 314 (1st Cir. 2009) (material controls and final approval demonstrate government speech; absence of written policy irrelevant to speech characterization)