The City of Boston was kicked to the curb by the U.S. Supreme Court for its effort to deny a group, Camp Constitution, the ability to use a public flagpole to raise its flag sporting a Latin Cross, while allowing 284 other flag-raising events from groups with a variety of messages. As Justice Neil Gorsuch noted: “Not a single member of the Court seeks to defend Boston’s view that a municipal policy allowing all groups to fly their flags, secular and religious alike, would offend the Establishment Clause.”
Justice Stephen Breyer, writing for the majority, wrote: “[T]he 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 ....” He concluded that since it was not government speech, the Camp Constitution’s flag could not violate the Establishment Clause. Excluding it was a violation of the Free Speech Clause.
Justice Breyer added:
“When a government does not speak for itself, it may not exclude speech based on ‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination.’”
Justice Brett Kavanaugh, in his concurring opinion, found:
“As this Court has repeatedly made clear, however, 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 … On the contrary, a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion …”
The majority noted that precedent held that trademarks were not government speech simply because the Patent and Trademark Office “registered all manner of marks and normally did not consider their viewpoint … Boston’s come-one-come-all attitude—except, that is, for Camp Constitution’s religious flag—is similar.”
Boston had argued that the display of a flag with a Christian motif would constitute government speech endorsing one religion over another. Justice Samuel Alito made a number of points that corresponded with the amicus brief of the Protect The First Foundation. He responded that “speech by a private individual or group cannot constitute government speech if the government does not attempt to control the message.” Justice Alito extended that reasoning to raise the specter of censorship in an expansive definition of “government speech.”
Concerned about the blurring of lines between government and private speech, Justice Alito suggested a new test under which two conditions are needed to satisfy ‘government’ speech protected from a challenge based on the Free Speech Clause. First, it must show that the challenged activity is purposeful communication of a governmentally determined message by a person empowered to speak for the government. Second, the government must establish it did not rely on a means that abridges the speech of private persons:
“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 …
“So government speech in the literal sense is not exempt from First Amendment attack if it uses a means that restricts private expression in a way that ‘abridges’ the freedom of speech, as is the case with compelled speech. Were it otherwise, virtually every government action that regulates private speech would, paradoxically, qualify as government speech unregulated by the First Amendment. Naked censorship of a speaker based on viewpoint, for example, might well constitute ‘expression’ in the thin sense that it conveys the government’s disapproval of the speaker’s message. But plainly that kind of action cannot fall beyond the reach of the First Amendment.”
Justice Alito warned that even if the government is conveying its own message, however, it still might find ways to abridge private speech.
The facts of this case are local and, on the surface, trivial. But today’s opinions suggested that Shurtleff v. Boston will become a precedent resolving the tension between the Establishment Clause forbidding an official religion and the Free Speech Clause. It is likely to be cited for creating a more generous precedent for religious speech than the 1971 Lemon case, which the late Justice Antonin Scalia likened to a “ghoul in a late-night horror movie.”
Shurtleff is sure to guide many future cases in the protection of religious speech.