Shurtleff v. City of Boston: Flagpole and Viewpoint Discrimination

In Shurtleff v. City of Boston, decided unanimously on May 2, 2022, the Supreme Court held that Boston violated the First Amendment when it refused to let a private group raise a Christian flag on a City Hall flagpole the city had opened to private speakers for years. Because Boston had approved roughly 284 flag-raising ceremonies over twelve years without denying a single request, the Court found the pole functioned as a forum for private expression, and the city could not suddenly exclude a flag because of its religious viewpoint.¹

What Boston Was Doing With the Third Flagpole

Three flagpoles stand outside the entrance to Boston City Hall. The first flies the American flag. The second flies the flag of the Commonwealth of Massachusetts. The third ordinarily displays the city’s own flag, but Boston routinely lowered it and let private organizations raise their own flags during scheduled ceremonies tied to cultural, heritage, and civic events.¹

Between 2005 and 2017, Boston approved about 50 unique flags across 284 ceremonies. Every application went through. The city had no written policy, no review criteria, and no formal standards for choosing which flags could go up.²

In 2017, Harold Shurtleff, director of Camp Constitution, applied to raise a flag during a ceremony marking the civic contributions of Boston’s Christian community. The proposed flag showed a red cross on a blue field against a white background. A city official denied the request solely because the application described it as a “Christian” flag, citing worries that flying a religious symbol on city property would violate the Establishment Clause. The official never viewed the flag itself before rejecting it.³

It was the first application Boston had ever refused. The District Court and the First Circuit both sided with the city, treating the flag-raisings as government speech that the city was free to control.²

The Constitutional Question

The case turned on one classification. If flags on the third pole were government speech, Boston could say whatever it wanted and exclude whatever it wanted, including religious messages. The government speech doctrine lets the government craft its own messages and pick its own views without First Amendment constraints.⁴

If the pole was instead a forum for private speech, the rules reverse. The government can set reasonable, viewpoint-neutral limits on time, place, and manner, but it cannot single out a message because officials dislike its content. Shurtleff argued that twelve years of approving every request had turned the pole into exactly that kind of forum.

How the Court Sorted Government Speech From Private Speech

Justice Stephen Breyer wrote the majority opinion. To decide whether the flag program qualified as government speech, the Court applied the framework developed in Pleasant Grove City v. Summum (2009) and Walker v. Texas Division, Sons of Confederate Veterans (2015). Three factors do the work: the history of the medium, whether the public would attribute the speech to the government, and how much editorial control the government actually exercises.

On history, flags on government property have a long association with official messages, but Boston’s practice of handing the pole to outside groups for their own events cut against any tradition of city messaging. On public perception, a flag that flies for a few hours during a private ceremony, on a pole that has hosted dozens of different organizations, does not carry the same implication of endorsement as a permanent monument or a state-issued license plate. In Walker, license plates carried the state’s name and gave a state board final approval over each design, which put the public on notice that Texas was speaking.⁵

The third factor decided the case. Editorial control means the government reviews content, applies standards, and makes real choices about what gets said. Boston had none of that. No written policy. No review criteria. No prior denial. Approving 284 consecutive ceremonies is not editorial control; it is administrative passivity.²

That was the gap between Boston and Texas. Texas actively curated its plates. Boston said yes to everyone until a flag with the word “Christian” appeared. A government cannot run an open-door program for years, take no interest in what walks through, and then claim ownership of the speech the moment it sees something it dislikes.

Why the Exclusion Was Viewpoint Discrimination

Once the flag program was not government speech, the Establishment Clause defense collapsed. Boston had opened a forum to private groups and then refused a single group access because its message was religious. Treating religious speech worse than secular speech in a forum the government itself created is viewpoint discrimination, and viewpoint discrimination in a public forum violates the First Amendment.¹

The ruling also drew a line between permanent installations and temporary displays. Monuments in public parks, as in Summum, sit indefinitely and go through submission requirements and legislative approval, which supports treating them as government speech. Flags raised for a few hours during a private ceremony, without prior review, do not carry the same weight.²

The Concurrences

All nine justices agreed on the outcome, but several wrote separately.

Justice Kavanaugh on the Establishment Clause

Kavanaugh addressed the concern that drove Boston’s decision directly. The government does not violate the Establishment Clause when it treats religious groups the same as secular ones. The violation runs the other way: excluding religious groups from access provided to everyone else is what creates constitutional problems under the Free Speech and Free Exercise Clauses.

Justice Alito on the Government Speech Doctrine

Alito, joined by Justices Thomas and Gorsuch, criticized the three-factor test. He called the government speech doctrine “susceptible to dangerous misuse” and warned it could shield censorship. Public perception, in his view, is a shaky factor because the public can be wrong about whether the government is speaking. He proposed a sharper test: the government must show it is actually communicating a governmentally determined message through someone with authority to speak for it, and it must show its method did not suppress private speech.²

Justice Gorsuch on the Lemon Test

Gorsuch used his concurrence to attack the Lemon test, the framework courts had long used to evaluate Establishment Clause claims. He argued Lemon’s abstract standards put officials “in a vise between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other,” pushing them to discriminate against religion in an effort to avoid endorsing it. He called for a framework rooted in historical practice and founding-era understandings of establishment, an approach the Court formally adopted weeks later in Kennedy v. Bremerton School District.²

What the Ruling Means for Cities

Shurtleff gave municipalities a choice. Either exercise genuine editorial control over public displays or accept that the space is a forum where viewpoint discrimination is off the table. There is no middle position that lets a city run a wide-open program and claim government speech authority only when a controversial applicant appears.

For cities that want to keep control, the opinion sketches a workable path. Adopt a written policy stating that the city retains editorial control. Set specific, viewpoint-neutral standards for reviewing requests. Apply those standards consistently, not just on paper. Structure the program so the public understands the displays carry the city’s message rather than private views.

A city can also close the forum entirely. Nothing in Shurtleff requires opening flagpoles to private groups in the first place. But once the door is open, the First Amendment governs who gets to walk through it, and the city cannot let everyone in except the groups whose messages officials find uncomfortable. Boston reportedly stopped flying third-party flags after the ruling rather than write a formal policy. The core lesson holds regardless of what any single city chooses: administrative indifference is not editorial control, and twelve years of saying yes is a hard record to overcome when a city finally wants to say no.

1
Justia. Shurtleff v. Boston, 596 U.S. ___ (2022)
2
Supreme Court of the United States. Shurtleff v. City of Boston, No. 20-1800
3
Supreme Court of the United States. Harold Shurtleff, et al., v. City of Boston – Brief for the Petitioners
4
Constitution Annotated. Amdt1.7.8.2 Government Speech and Government as Speaker
5
Justia. Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015)