A Public Flagpole, a Christian Flag and the First Amendment

“We don’t agree with Camp Constitution’s views,” he added, “but we defend its right to express them.”

The Biden administration also filed a brief last week urging the Supreme Court to reverse the First Circuit’s decision in the case, Shurtleff v. City of Boston, No. 20-1800. “The city cannot generally open its flagpole to flags from private civic and social groups while excluding otherwise similar groups with religious views,” the brief said.

In previous cases, the Supreme Court has sometimes struggled to distinguish the government’s speech from private speech in a public forum. One concerned the Confederate battle flag.

In 2015, in Walker v. Sons of Confederate Veterans, the Supreme Court ruled that Texas could refuse to allow specialty license plates bearing the Confederate flag because the plates were government speech and therefore immune from First Amendment scrutiny. The vote was 5 to 4.

Texas had permitted hundreds of specialty plates bearing all sorts of messages, including ones for college alumni, sports fans, businesses and service organizations. Others sent messages like “Choose Life,” “God Bless Texas” and “Fight Terrorism.”

All were government speech, Justice Stephen G. Breyer wrote for the majority.

“As a general matter,” he wrote, “when the government speaks, it is entitled to promote a program, to espouse a policy or to take a position.” Were this not so, he said, the government would be powerless to encourage vaccinations or promote recycling.

In dissent, Justice Samuel A. Alito Jr. questioned the notion that license plates saying “Rather Be Golfing” or supporting the University of Oklahoma conveyed a government message. The first cannot plausibly represent state policy, he wrote; the second, in Texas at least, bordered on treason during college football season.