Supreme Court justices question Boston's decision not to allow Christian flag outside city hall

The Supreme Court on Wednesday heard arguments in a case where the city of Boston rejected the application for a Christian flag to be flown outside city hall.

Justices and both sides of the case agreed that it all comes down to whether the city's program of flying flags of third parties is private speech delivered in a public forum, or government speech.

"If it’s a public forum, the city acknowledges it has no basis to exclude," Boston’s attorney Douglas Harry Hallward-Driemeier told the court.

The city, looking to celebrate its diversity, allows outside groups to apply to have flags flown, typically those of foreign countries or those commemorating holidays. The flag at issue in Wednesday’s case belonged to Camp Constitution, which was founded by Harold Shurtleff and, according to their website, aims "to enhance understanding of our Judeo-Christian moral heritage, our American heritage of courage and ingenuity, including the genius of our United States Constitution, and the application of free enterprise." The flag’s design includes a cross.

Attorney Mathew Staver, representing Shurtleff, argued that the city's policy specifically used the phrase "public forum," which would indicate that the flags would be an expression of the private speech of the group that applied. Denying the application for describing the Christian flag, he argued, is "clearly viewpoint discrimination" that violates the First Amendment right to free speech.

One factor that the justices discussed in sorting out whether the flags were private or government speech is how a casual observer would interpret it. Justice Stephen Breyer pointed out that the flagpole is situated outside ... (Read more)

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