How Boston Lost Its Case Against Request to Fly Christian Flag at City Hall

The Supreme Court ruled recently that Boston violated the free speech rights of a conservative activist when by refusing his request to fly a Christian flag on the City Hall flagpole.

The unanimous court decision was written by Justice Stephen Breyer and said the city discriminated against religious activist Harold Shurtleff because of his “religious viewpoint.”

The city has routinely approved applications to use one of its three flagpoles located outside City Hall for citizens to fly other chosen flags. The flagpoles usually fly the Boston, Massachusetts, and U.S. flags.

Shurtleff and his Camp Constitution organization requested to fly the Christian flag, a white flag with a red cross on a blue background located in a square in the upper left corner.

The request was made to mark Constitution Day, September 17, 2017.

Boston had approved 284 previous, consecutive applications to fly flags before rejecting Shurtleff’s because it was a Christian flag. The city suggested Shurtleff could fly a different flag or banner, but he refused, and the lower courts upheld the city’s decision.

However, the high court ruled that the city and lower courts were wrong.

Breyer wrote that the case hung on whether the flag-flying was an act of the government, which would mean Boston could do whatever it wanted, or an act of a private party expressing free speech, like Shurtleff.

A public forum

Justice Stephen Breyer wrote the court’s decision. He said the critical question in the case was whether the city of Boston had created a public forum by allowing private groups to utilize its flagpole or endorsing and choosing the flags it approves.

If a government entity speaks for itself, it is immune to scrutiny under the First Amendment.

Justice Breyer wrote, “Finally, we look at the extent to which Boston actively controlled these flag raisings and shaped the messages the flags sent. The answer, it seems, is not at all. And there is the most salient feature of this case.”

He continued saying 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.”

Boston had previously said that if it lost the case at the Supreme Court, it would likely change its policy to take more control over what flags can be flown.

Shurtleff has used his Camp Constitution website and position as a former organizer with the John Birch Society to question the outcome of the 2020 election, who was behind the September 11 attacks, the January 6 insurrection at the U.S. Capitol, and the efficacy of Covid19 vaccines.