SCOTUS Issues 9-0 Decision Regarding Free Speech

On Monday, the Supreme Court handed down a 9-0 decision authored by Justice Stephen Breyer, who is set to retire at the end of the term. The case, styled Shurtleff, et al. v. City of Boston, et al., involved the question of whether the City of Boston violated the First Amendment when it refused to fly the flag of a Christian group, though it did fly flags from other outside groups.


A little background: Three flagpoles stand in the plaza outside Boston’s City Hall. The American flag and the flag of the Commonwealth of Massachusetts grace two of the three flagpoles; the City’s flag usually flies from the third. However, over the years, the City has allowed outside groups to hold ceremonies on the plaza and fly a flag of their choosing from the third pole in connection with those ceremonies. Per the decision:

Between 2005 and 2017, Boston approved the raising of about 50 unique flags for 284 such ceremonies. Most of these flags were other countries’, but some were associated with groups or causes, such as the Pride Flag, a banner honoring emergency medical service workers, and others.

When Harold Shurtleff proposed to hoist a “Christian flag” for a ceremony celebrating the Christian community in 2017, the City’s Property Management Department commissioner denied the request to fly the flag, as he was “worried that flying a religious flag at City Hall could violate the Establishment Clause and found no past instance of the city’s having raised such a flag.” The ceremony could proceed but without the flag.


In holding that this decision was unconstitutional, the Court ruled:

1)  Boston’s flag-raising program does not express government speech.

a)  The Free Speech Clause does not prevent the government from declining to express a view;

b)  Some of the evidence before the Court favored the City; some favored Shurtleff.

2)  Because the flag-raising program did not express government speech, Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment.

Justices Sotomayor, Kagan, Kavanaugh, and Barrett joined in Justice Breyer’s opinion. Justice Kavanaugh filed a concurring opinion. Justice Alito filed a concurring opinion, in which Justices Thomas and Gorsuch joined. And Justice Gorsuch filed a concurring opinion in which Justice Thomas joined.

The full decision can be found here.



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