Liberties Reporting on First Amendment freedoms

Public forum vs. government speech

First Amendment | Courts consider how the First Amendment applies to government-approved messages
by Steve West
Posted 8/24/20, 09:10 pm

When Hal Shurtleff requested permission to fly his organization’s Christian flag above Boston City Hall in 2017, he had no reason to think the city would deny his request. He was wrong.

Shurtleff’s case highlights the distinction between government speech and private speech in government-regulated forums. Similar questions have surfaced recently concerning Black Lives Matter murals on the streets of U.S. cities.

Shurtleff’s organization, Camp Constitution, asked to raise its flag, which features a cross, for an hour to mark Constitution Day on Sept. 17. For 12 years, the city had approved every request from civic organizations to temporarily fly flags—including a Turkish flag depicting the star and crescent often associated with Islam and the Portuguese flag, which uses religious imagery.

But the city denied his request because the application called it a “Christian flag.” Shurtleff sued, and a federal judge sided with the city in February, ruling the flagpole was not a “public forum” and the flags constituted “government speech.” U.S. District Judge Denise Casper reasoned that someone might see the flag “flying on the pole ordinarily reserved for the flag of the City of Boston” and think the city was endorsing Christianity.

Shurtleff appealed the ruling. In a reply brief filed on Aug. 14, his attorneys from Liberty Counsel argued that a policy granting equal access to religious speech demonstrates neutrality, not an endorsement. The city countered that, because it must approve the requests, the flags constitute government speech and cannot be associated with a religion.

A similar dispute is playing out in the nation’s capital. Judicial Watch filed a civil rights lawsuit in July against Washington, D.C., Mayor Muriel Bowser and other city officials for refusing to allow the organization to paint “Because No One Is Above the Law!” on a city street. Bowser allowed the Black Lives Matter organization to paint “Black Lives Matter” and “Defund the Police” on 16th Street in the district.

“There is a crucial difference between government endorsement of religion and private speech, which government is bound to respect,” Liberty Counsel Chairman Mat Staver said. “Censoring religious viewpoints in a public forum where secular viewpoints are permitted is unconstitutional.”

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Steve West

Steve is an attorney and freelance writer based in Raleigh, N.C. Follow him on Twitter @slntplanet or at his blog.

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