The American constitution entitles even unsavory individuals to free speech

At Boston’s City Hall Plaza, there are three flagpoles that fly the American flag, the Massachusetts flag, and the City of Boston’s flag, respectively.

Now, Boston City Hall has the dubious distinction of being named the “world’s ugliest building” in a 2008 online poll. In the 1960s, then-Boston mayor John F. Collins reportedly gasped as the design was first unveiled, and someone in the room blurted out, “What is that?” (Then again, in a 1976 Bicentennial poll of historians and architects regarding America’s greatest buildings, sponsored by the American Institute of Architects, Boston City Hall received the sixth-most mentions. Go know, as they say.)

Ugly or not, the city has on occasion turned its flagpole over to private groups that requested use of it to raise flags of their choosing, and in the past 12 years, Boston approved 284 requests to fly dozens of different flags. It did not deny a single one until 2017, when Harold Shurtleff, the director of a group called Camp Constitution, asked to fly a Christian flag for one hour at an event that was to include “short speeches by some local clergy focusing on Boston’s history.”

But Boston refused the request, and Camp Constitution sued. Each party claimed the other’s position would violate the First Amendment, the city arguing that flying the flag would be governmental endorsement of religion, and the group contending that the city’s decision violated its right to free speech.

The plaintiff, Harold Shurtleff, is a former organizer of the notoriously anti-Semitic, far-right John Birch Society, and he has used the Camp Constitution website to question the reality of the January 6 riot at the U.S. Capitol, the efficacy of COVID-19 vaccines, and who was behind the September 11 attacks.

But the American constitution entitles even unsavory individuals to free speech, including by flying flags outside thoroughly unattractive edifices, and so the lawsuit, Shurtleff v. City of Boston, proceeded.

When the First Circuit ruled in Boston’s favor, Shurtleff and Camp Constitution appealed the decision to the Supreme Court. The Biden administration filed a brief supporting their position, arguing that the city “cannot generally open its flagpole to flags from private civic and social groups while excluding otherwise similar groups with religious views.”

In a 9-0 ruling, the Court sided with Shurtleff and his group. In an opinion joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh, and Barrett, Justice Breyer wrote that Boston’s refusal to let “Camp Constitution fly their flag based on its religious viewpoint violated the free speech clause of the First Amendment.” Justices Alito, Gorsuch and Thomas concurred in the holding, but on somewhat different grounds.

At issue, Breyer wrote, was whether “Boston reserved the pole to fly flags that communicate governmental messages, or instead opened the flagpole for citizens to express their own views. If the former, Boston is free to choose the flags it flies without the constraints of the First Amendment’s Free Speech Clause. If the latter, the Free Speech Clause prevents Boston from refusing a flag based on its viewpoint.”

Justice Breyer applied an approach the Court has used previously in similar cases, which examines three factors: the history of the expression at issue; the public’s likely perception as to whether it is the government or a private person who’s doing the speaking; and the extent to which the government has actively controlled the expression.

Looking at the history of governmental flagpoles, Breyer found that it tended to support Boston’s position. “Boston’s flag, when flying there at full mast, symbolizes the city. When flying at half-staff, it conveys a community message of sympathy or somber remembrance. When displayed at other public buildings, it marks the mayor’s presence. The city also sometimes conveys a message by replacing its flag with another. When Boston’s mayor lost a bet with the mayor of Montreal about whose hockey team would win a playoff series, Boston, duty-bound in defeat, hoisted the Canadiens’ banner.”

Still, he wrote, the “question remains whether, on the 20 or so times a year when Boston allowed private groups to raise their own flags, those flags, too, expressed the city’s message. So we must examine the details of this flag-flying program.”

And on that score, Justice Breyer concluded that “the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech,” albeit in a public forum. For the city, then, to refuse to let Shurtleff and Camp Constitution raise their flag based on their religious viewpoint was an unconstitutional curtailment of their freedom of speech.

Consider this confluence of events: On the same day the Supreme Court unanimously validated the use of Boston City Hall’s flagpole for free speech of a religious nature, elsewhere in Washington DC, a jury in federal district court found former New York City police officer Thomas Webster guilty of assault and other charges for attacking Metropolitan Police Department Officer Noah Rathbun at the U. S. Capitol on January 6, 2021, with a metal flagpole.

Although he claimed to have acted in self-defense, the New York Times reports that videos showed “Mr. Webster emerging from the crowd and berating officers at the barricades in a state of foul-mouthed rage. Mr. Webster could be seen in the videos repeatedly pushing at the barricades, then swinging a flagpole at Officer Rathbun before he shoved through the police line and tackled the officer.”

When he will be sentenced, Webster will learn that such form of expression with a flagpole is not at all free, but very costly.

(Originally featured in Mishpacha, Issue 910. Eytan Kobre may be contacted directly at kobre@mishpacha.com)