Boston Christian Flag Argument Falls Flat

and Elena Kagan. But 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 on uh, speaking your own mind. A program that basically now says and and and previously we welcome all comers except for the most reprehensible, discriminatory speech and religious See that's what this program is. And why should we understand that to be government speech to say everything's good

except religion? And several of the justices pointed out that it would be easy for the city to avoid having to fly any and all flags by exercising more control

over the process. Here's Justice Amy Coney Barrett. The City of Boston sits down, asks what's going to be expressed, and says, yes, this is an idea that Boston can get behind and a government official participates in the flag raising, participates in the ceremony, communicating that yes, Boston is happy to celebrate and communicate pride in um juneteenths, but no, Boston is not going to participate in the flag raising for the proud voice. My guest is first Amendment expert

Eugene Volk, a professor at u c l A Law School. Eugene, what's the central issue here? So, the city of Boston has flag poles, as it's usual with city flag poles, that usually flies governments, American flag, state flag, city flags, but sometimes the city allows people to put up their own flags, and it's usually flags of foreign countries, and the city says that's because it's a way of recognizing the national origin of the many people who live in

Boston from all over the world. But sometimes it's also flags related to events commemorations, let's say in the like uh and also occasionally, for example of Pride flag gave

Pride flag was hoisted as well. So the question that the court is facing is does it have to at that point except really all proposed flags on the theory that it's created a limited public forum where it can't exclude flags, for example, because they're religious the particular claimant here wanted to put up a Christian flag, or whether there's no public forum. And this is all government speech. Even when the government puts up other people's flags, it's

endorsed in them. And then it gets that they can choose, and it could say, you know, we don't want to endorse Christian flag, we don't want to endorse some other flag, and the like. Occasionally we might fly some flag me or maybe in honor of a visiting dignitary or uh to mark some some important event or whatever else. But it's up to us to decide that, just like when we decide whether to accept a monument for placing in a park. There has been a precedent on the subject

from UH some years ago. We they can choose and we say, you know, some monuments we don't want, other monuments we do want. So everybody agrees the city could do that. The question is whether the city did do that here or whether it took such a laws their attitudes, like we put up pretty much everything apparently that never rejected some other flag before that. It shows that between that and the way that it's framed its policies. It shows that it deliberately opened up a limited public form.

So I think the decision is going to end up not saying much about what can be allowed with regard to cities and flags, and more about just how the particular details of the city's decision should be interpreted. As a legal bath, the city argues that flying this flag would amount to a government endorsement of religion. And you know, when people look at those flagpoles, they assume that that's

the city of Boston. They don't assume that the third poll is a separate organization has nothing to do with the city. Well, there are too answers to One is that this question of government endorsement ties in very directly to this broader question that I mentioned, which is is this a limited public forum or is this government speech?

Because the Supreme Court has made clear that in a limited public forum, religious speakers are equally free to participate, in part because the very fact that this is an public forum open to all viewpoints means the government isn't endorsing. The government doesn't endorse any particular view when it merely

complies with the subligation of viewpoint neutrals. On the other end, if this is seen as woman's speech, then yes, by definition, when the government says something, it's presumably endorsing it in at least some measure, and therefore should be entitled to say, well, we don't want to endorse religions. Now, let me also suggest so that I think that as a factual matter, And this is not something that came up in the arguments much, but I think I think it's true as

a factual matter. Let's say somebody's walking by these flags and he sees the flag with a star and crest, and he knows and and color green. He knows those are Muslim symbols. So he says, oh, wait a minute, wait a minute, maybe the city is endorsing Islam. So so what do we think about that? Well, the flag I just described happens to be the flag of the nation of Pakistan, unsurprisingly, because Pakistan is an overwhelmingly muslimination,

so does use, like many musliminations, Islamic symbolism. So presumably the person would then call up the city if he's really upset by the say how dare you endorse Islam? And I think the city would say no, no, no, no, that's the flag of Pakistan. We're not endorsing Islam. We're

just showing respect to people in Boston who are from Pakistan. Likewise, I think if somebody sees a Christian flag flne first of all, they might say, wait a minute, that might be the flag of some country if they know of this practice because some countries flags that many countries flags do indeed have crosses them, um, because those because of

the Christian history of those countries. Um. But if the person sort of says no, no, no, no, I know that's not a country flag, so it calls up the city, and the city says says, oh, well, no, no, this is a limited public forum. We're not endorsing it. We just have to accept it. See the Supreme Court decision. So one way or the other, I expect most people looking at those flags wouldn't wouldn't pay much attention to them. To the extent they do, they would probably assume it's

some foreign countries flag. They just don't happen to know it. And if they don't think of that, then if they do call up the city, which I think would be the reasonable thing to do, it you think there's something, something, something bad a foot there, then there will be it will be explained to them what's going on, uh, that this isn't the city's endorsement of the religious message. So I think it's a practical matter that's concerned about endorsement

is overstated. But as a legal matter, it maps very closely on this question of whether it's a limited public form or government speech. And if government speech, then the government is entitled to avoid flying something in order to avoid endorsing it. Whereas it's it's a limited public forum, it's a different matter. What do you think the decision will be? Will it be a unanimous decision? You know, it's really hard to tell. I hate making predictions about that.

I don't think there's anything really clear from moral argument as to how the justices will end up interpreting this particular program. Again, I think there's broad acknowledgement on the court's part night just from oural arguments from past decisions that if it's a limited public form, of course they can't exclude speech based on viewpoint or generally speaking, based on its religiosity. There's a broad acknowledgement as if it's

government and speech. When the government gets to pick and choose. The real dispute, if there will be much dispute on the court, will be how do we classify this particular program. Maybe it will be split by four or six three, Maybe it'll lend up being nine zero. Which way exactly it goes, I don't know. So the way the city of Boston has it set up right now, would they have to fly a flag with a swastika on it? If the answer is that the city set up a

limited public forum, the answer is definitely. In a limited public forum, the city can't discriminate based on viewpoint. It can't discriminate against pro Nazi views, it can't discriminate against pro communist views, it can't discriminate against pro Johattest view.

So if the city set up this limited public forum, then then that cats that would have to fly the flag, which again suggests that if the court says yes in this case the things the city did lead to the creation of a limited public forum, then from now on, all cities, including I would imaginement especially Boston, will say we're gonna try very very hard to avoid creating this

limited public form. We're either going to abandon the practice applying other people's flags or at least make sure it's sharply sharply limited, whether in the formal rules or if it's set up in kind of the discretionary nature of the decision making process where they routinely say, look, you know, I'm sorry, we we don't want your flag. What do you think the decision will be? Will it be a unanimous decision? You know, it's really hard to tell. I

hate making predictions about that. I don't think there's anything really clear from moral argument as to how the justices will end up interpreting this particular program. Again, I think there's broad acknowledgement on the Court's part, not just from oural argument from past decisions that if it's a limited public form of course, they can't exclude speech based on

viewpoint or generally speaking, based on its religiosity. There's a broad acknowledgement as if it's government speech and the government gets to pick and choose. The real dispute, if there will be much dispute on the court, will be how do we classify this particular program. Maybe it will be split five four or six three, Maybe it'll end up

being nine zero. Which way exactly it goes, I don't know, And I'm not sure it matters that terribly much, because again, one way or the other, I think there'll be plenty of room for cities going forward to set up the flagpole programs if they have any such in a way that allows them to pick and choose. That's exactly what they will do. And I doubt there will be a lot of presidential significance to this decision either, just because again I think it will turn on the very peculiar

details of this particular programs. In past cases, has the Court drawn a clear line between government speech and private speech. Not a super clear line by any means. There is some gray, and the clearest example of that is the Sons of Confederate Veterans license plate design case, where the court split sharply split five four on the question and

maybe got wrong. It's concluded that a program where the state of Texas allowed hundreds of designs for license plates that could be submitted by various groups, that that was still government speech because traditions that license plate designs were set up by the government, and because then a public perceptions based in that tradition, and because it exercised some control over those So that was a close case. But

there are other cases which weren't closed at all. So, for example, the government was trying to prohibit derogatory trademark mentality camp As. The case involving stand called the plants and the government, so that's a racially derogatory term. And the court unanimously said, well, this isn't government speech. This is the government promoting private speech in the form of private trademarks, and therefore it can't discriminate based on viewpoint.

That was unanimous. Likewise, in the Sumon case, so one involved in monuments, the court nearly unanimously said, yeah, when the city is deciding which monuments to accept for a public park, of course that's government speech. So you've got pretty clear things on both sides of the line. And then, of course occasionally with most lines you get some ray areas right next, but not a vastimous race. Thanks Eugene.

That's Eugene Vault of u c l A Law School, And that's it for this edition of the Bloomberg Law Show. I'm June Grosso and you're listening to Bloomberg