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That’s in part because the case could arguably affect numerous other controversial First Amendment issues ranging from campus “speech codes” to advertising on public transportation. Shurtleff’s case drew some two dozen amicus briefs ranging from a consortium of 12 states to the American Civil Liberties Union, the American Legion, the Anti-Defamation League and the National Council of the Churches of Christ in the USA.
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The question in all the cases is “Who is speaking?” If the government is speaking, then it can say (or not say) whatever it wants, but if it has created a public forum then free speech prevails. “Boston’s come-one-come-all attitude - except, that is, for Camp Constitution’s religious flag - is similar.” “There, we held that trademarks were not government speech because the Patent and Trademark Office registered all manner of marks and normally did not consider their viewpoint, except occasionally to turn away marks it deemed ‘offensive,’” he wrote. Tam, in the opinion for Shurtleff and his group Camp Constitution on Monday. The next year, however, the justices ruled that the federal government couldn’t reject a trademark for an Asian rock band called The Slants on the grounds that it was ethnically derogatory.īreyer invoked The Slants case, known as Matal v.
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In 2015, the court said the state of Texas could reject a specialty license plate with a Confederate flag despite having approved numerous other citizen-proposed designs. The high court has given mixed signals on the issue since 2009 when it held that a city didn’t have to accept a monument in a public park proposed by the quasi-religious group Summum despite having previously allowed other privately funded monuments. How governments use their channels to allow some people to speak but not others has been a major bone of contention in recent years - one that has given rise to frequent charges of favoritism and censorship.
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“And that is the most salient feature of this case.”īoston acknowledged that it “hadn’t spent a lot of time really thinking about” its flag-raising practices, Breyer dryly noted.īreyer pointed in contrast to the city of San Jose, California, which provides in writing that its “flagpoles are not intended to serve as a forum for free expression by the public” and lists approved flags that may be flown “as an expression of the city’s official sentiments.” “The answer, it seems, is not at all,” he said. “All told, while the historical practice of flag flying at government buildings favors Boston,” Breyer wrote, “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.”Įarlier in the opinion, Breyer described the court’s study of “the extent to which Boston actively controlled these flag raisings and shaped the messages the flags sent.” By allowing so many other people to fly flags, the city had turned its flagpole into a public forum and now it is barred from limiting speech that it does support or discriminating on the basis of religion. The city was wrong, the Supreme Court ruled. When a man named Howard Shurtleff wanted to fly a so-called Christian flag featuring a red Latin cross, however, the city said no. One of the poles usually flies the city’s flag but, on hundreds of occasions, the city has allowed private individuals to temporarily fly other flags in conjunction with an event - typically flags of other nationalities but occasionally ones that celebrated subjects such as Juneteenth or gay pride. The case involves three 83-foot-tall flagpoles outside Boston’s City Hall. No member of the court dissented, but Justices Brett Kavanaugh, Samuel Alito and Neil Gorsuch all wrote concurring opinions. Justice Stephen Breyer wrote the lead opinion, which is joined by five colleagues. Missoula County at times has allowed certain groups to illuminate the courthouse for special causes.īOSTON (CN) - Once a government opens up a forum to the public, it might have to allow viewpoints it doesn’t agree with, the Supreme Court ruled Monday in a decision that scolds Boston for being selective about which flags citizens can fly outside city hall.