SCOTUS Issues 9-0 Decision Regarding Free Speech


Monday’s Supreme Court decision was 9-0. It was authored by Justice Stephen Breyer. He is expected to retire at the conclusion of the term. Shurtleff et al. was the case. The case of Shurtleff et al. centered on whether Boston violated the First Amendment by refusing to fly the flag of a Christian organization, even though it had flown flags from other groups.

A brief background: There are three flagpoles in the square outside Boston’s City Hall. The flags of the United States and Massachusetts are on two of the flagpoles. The City’s flag flies usually from the third. The City has over the years allowed outside groups to hold ceremonies at the plaza and fly flags from the third pole. The following was the decision:

Between 2005 and 2017, Boston approved approximately 50 flags to be raised for 284 ceremonies. While most of these flags were from other countries, some were associated to groups or causes such as the Pride Flag which honors emergency medical service personnel and others.

Harold Shurtleff suggested that a “Christian Flag” be hoisted at a celebration of the Christian community in 2017. The City’s Property Management Department commissioner declined to allow the flag to be flown. He was concerned that the Establishment Clause could be violated and had not seen any past instances of such a flag being raised at City Hall.

The Court ruled that the Court’s decision was invalid.

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

a) The government can decline to express a viewpoint under the Free Speech Clause

b) Some evidence presented to the Court was favorable for the City, while others were        favorable for Shurtleff.

2. Boston’s refusal of petitioners to fly their flag in the flag-raising program violated the First Amendment Free Speech Clause because it did not express government speech.

Justices Sotomayor and Kagan joined Justice Breyer in his opinion. Justice Kavanaugh submitted a concurring opinion. Justice Alito filed a concurring view, which Justices Thomas and Gorsuch also joined. Justice Gorsuch also filed a concurring view, in which Justice Thomas was also included.