986 F.3d 78
1st Cir.2021Background
- Boston owns three prominent flagpoles at City Hall Plaza; ordinarily US, POW/MIA, Massachusetts, and a city flag are flown, but the city sometimes replaces its flag with third-party flags upon approval.
- Applicants must request permission; approvals are screened by Commissioner Rooney, who typically approves based on a short description and historically did not review the actual flag design.
- From 2005–2017 the City approved 284 third-party flag raisings (mostly country, civic, or secular flags); before the plaintiffs' request Rooney had never denied a request.
- In July 2017 Shurtleff and Camp Constitution sought to raise a Christian Flag; Rooney denied the request citing Establishment Clause concerns and a practice of not flying non-secular third-party flags.
- Plaintiffs sued seeking injunctive/declaratory relief; a preliminary injunction was denied (Shurtleff II), and the district court later granted summary judgment for the City; this appeal affirms that judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether third-party flags on the City Hall flagpole are government speech or private speech in a public forum | Shurtleff: flagpole is a public forum; City’s refusal is content-based and must meet strict scrutiny | City: the display is government speech (Summum/Walker factors apply); it may choose which flags to express | Held: government-speech — observer attributes message to the City; all Summum/Walker factors support government control |
| Whether the permitting process vests unbridled discretion / constitutes an unconstitutional prior restraint | Shurtleff: Rooney’s approval power is unbridled and subjective, creating prior restraint | City: approvals are subject to standards (consistency with City message/policy); no public-forum limits apply | Held: claim fails because the flagpole is government speech (not a public forum), so prior-restraint doctrine does not apply |
| Whether denial violated the Establishment Clause (religion vs. nonreligion and inter-religious discrimination) | Shurtleff: exclusion of the Christian Flag and allowance of other flags with religious imagery shows discrimination/hostility | City: secular policy aimed to avoid endorsement or entanglement; refusing to fly a novel religious flag is neutral and constitutionally permissible | Held: no Establishment Clause violation — City’s secular restraint is permissible; flying a new religious symbol at City Hall would risk endorsement |
| Whether denial violated Equal Protection (religious viewpoint discrimination) | Shurtleff: selective treatment of their religious speech compared to others is impermissible | City: no public forum; regulation reviewed under rational-basis tied to legitimate goals (celebrating diverse communities) | Held: equal protection claim fails — absent a public forum rational-basis review applies and is satisfied |
Key Cases Cited
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (city displays of donated monuments constitute government speech and are not subject to Free Speech Clause forum analysis)
- Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015) (specialty license plates are government speech; Summum three-factor test applied)
- Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550 (2005) (government "effective control" over messages supports government-speech classification)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (public forum created only by intentional opening; government may reserve forums for particular speaker classes)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (distinguishes public forums from nonpublic property and limits forum-based First Amendment claims)
- McCreary Cnty. v. ACLU of Ky., 545 U.S. 844 (2005) (Establishment Clause requires government neutrality; intent matters in endorsement analysis)
- Lemon v. Kurtzman, 403 U.S. 602 (1971) (Establishment Clause test addressing endorsement and entanglement concerns)
- Am. Legion v. Am. Humanist Assoc., 139 S. Ct. 2067 (2019) (historic religious displays may acquire secular meaning over time; new displays lack that presumption)
- Widmar v. Vincent, 454 U.S. 263 (1981) (when a forum is open to all, the government is less likely to be perceived as endorsing religious speech)
- Masterpiece Cakeshop Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 1719 (2018) (government hostility toward religion can violate constitutional protections and requires evidentiary support)