On Tuesday, the High Court heard arguments in Shurtleff v. Boston. The key to this whole case lies in determining whose speech a flagpole in front of Boston City Hall represents, the government or private citizens.
Justices seemed skeptical about the cities argument that the flagpole represents its voice.
"When you say anybody can speak by putting up a flag with these few exceptions, are you not creating a forum for private speech rather than speaking your own mind," Justice Samuel Alito asked Douglas Hallward-Driemeier, the attorney representing Boston.
"No, your honor. I do believe that the fact that we're talking about the government's own flagpole, in front of the government's seat of power, where governments have previously spoken, its the governments bully pulpit, everyone would think it's the government speaking," Hallward-Driemeier responded.
There are three flagpoles outside Boston City Hall.
One flies the U.S. flag, another, the flag of the Commonwealth of Massachusetts, and the third flagpole is to celebrate other countries, cultures, and causes.
Private organizations simply have to apply to have their banner raised.
While the city may have viewed that third pole as representing the government's voice, the plaintiff's attorney says said its website conveyed a different message.
"The policies, specifically written by the city for 2005-2017, include the statement that these are 'public forums' open to 'all applicants,'" said attorney Mat Staver from the Liberty Counsel.
Staver represents Hal Shurtleff, the director of Camp Constitution, an organization that applied to fly a Christian flag in honor of Constitution Day. Their request was rejected.
"After 12 years, with 284 flag-raising approvals, no denials, and usually no review, one word caught the attention of a Boston official, the word 'Christian' on the application," Staver said in his opening argument before the Supreme Court.
He calls this is a case of viewpoint discrimination, accusing the city of using its argument of government speech as a guise for censorship.
"Can't the government choose what it wants to say? And if the government makes it clear, and it's not just stamping 'government speech' on it to hide discrimination against private viewpoints, but if the government truly exercises control, wouldn't that be okay?" questioned Justice Amy Coney Barrett.
"If the government truly exercised control. Other cities don't open for third-party flags for obvious reasons. Those that do can invite some third party participation as long, as they maintain very specific control of the subject matters and messages, and that it's very clear that it is their speech," responded Staver.
While Boston argued there were clear parameters over the flags it considers acceptable, ultimately, the justices expressed that it seemed officials were operating off the belief that it would be unconstitutional to allow a religious flag to fly outside of City Hall–and that was a mistake.
"In context of a system where flags go up flags go down, different people have different kinds of flags, then it is a violation of the Free Speech part of the Amendment and not an Establishment Clause violation. The end," said Justice Elena Kagan.
Boston suspended its flagpole program in 2021 pending a decision from the High Court.
Hallward-Driemeier says the city intends to clarify its policies going forward by explicitly stating the flagpole represents government speech.