Could Your Town Be Forced To Fly The Flag?

John Rudoff/SIPA via AP, FILE

By: Ava Kowitski and Tracy Osawe (Ed.)

May 29, 2023

In its 2021-22 term, the Supreme Court turned to history when analyzing Constitutional questions. This was seen in Kennedy v Bremerton, a case in which the Court rejected both the Lemon and Endorsement tests and replaced them (almost exclusively) with historical analysis; and Dobbs v. Jackson, where the Court scrutinized the history of abortion and overturned the long-standing precedent established by Roe v. Wade.

In the same term, however, the Supreme Court seemingly ignored history when analyzing a free speech claim in Shurtleff v. City of Boston. In that case, the City of Boston was charged with maintaining three flag poles that were in front of City Hall. The first flagpole flew the United States flag, the second flew the Massachusetts flag and the third flew Boston’s flag. Upon request, the city would replace Boston’s flag with that of a private organization. From 2005 to 2017, Boston approved all of the 284 requests submitted by private organizations seeking to fly their flags in front of City Hall. This practice was halted in 2017 when the city denied Camp Constitution the right to fly its flag.

Camp Constitution is a religious organization that endeavors to “enhance the understanding of the country’s Judeo-Christian moral heritage.” The director of Camp Constitution, Harold Shurtleff, requested to fly the organization’s flag in honor of an event commemorating “the civic and social contributions of the Christian community.” When Boston denied Camp Constitution’s request, Shurtleff filed a lawsuit alleging a violation of the Free Speech Clause contained within the First Amendment.

The Court used the previously established Summum factors to analyze whether the flag raising activity constituted government or private speech. If the activity was considered private speech, there would be First Amendment implications. The Court looked at: (1) whether the relevant medium has long been used to convey government speech; (2) whether reasonable observers would attribute the message to the government; and (3) the level of control exercised by the government over the medium. Based on these factors, the Court concluded that the flag raising was private speech, a win for Camp Constitution and its First Amendment claim. 

In reaching this decision, Justice Breyer believed that the historical roots of flag flying favored Boston. Justice Breyer noted that “flags are almost as old as human civilization... [and] other contemporary flags, both state and local reflect their communities.” Justice Bryer pointed out that flying a non-governmental flag can also convey a governmental message and concluded by pointing out that “[k]eeping with this tradition, flags on Boston’s City Hall Plaza usually convey the city’s messages.” https://reason.com/wp-content/uploads/2022/07/2022-Shurtleff-v-City-Boston.pdf.

 Nevertheless, the Court still sided with Camp Constitution. Instead of considering the historical context, the Court chose to focus on one specific factor - the level of control exercised by the government over the medium. To date, the Court has failed to explain the reasoning behind its decision making. As noted by Justice Kavanaugh in his concurring opinion, “[the] Court concludes that two of three factors – history and public perception – favor the City [of Boston]. But it nonetheless holds that the flag displays did not constitute government speech. Why these factors drop out of the analysis – or even do not justify a contrary conclusion – is left unsaid. This cannot be the right way to determine when governmental action is excluded from the First Amendment.”

 It is evident that the analysis provided by the Court in its majority opinion is flawed. The Court should have followed the jurisprudence established in other 2022 decisions and placed greater emphasis on history or at least explained why other factors were of greater importance. The emphasis on history would have resulted in a more judicially sound decision. Boston was acting in its own capacity and its denial was not a violation of Camp Constitution’s First Amendment rights.

Ava Kowitski is an undergraduate student at Fairleigh Dickinson University (“FDU”). She majors in Criminology. Ava is set to graduate in May 2024. Upon graduating, Ava plans to earn a master’s in criminal justice at FDU and subsequently apply to law

school..