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On The Front Lines

Boston Uses 'Government Speech' Doctrine to Prohibit Display of Christian Flag While Displaying Flags Promoting Gay Pride, Islam, etc.

WASHINGTON, D.C. — The Rutherford Institute is sounding the alarm over attempts by Boston officials to use the “government speech doctrine” to censor or discriminate against expressive activities by Christians that take place in public which may be perceived as unpopular or politically incorrect. Weighing in before the U.S. Supreme Court in Harold Shurtleff v. City of Boston, Rutherford Institute attorneys argue that the City of Boston erroneously applied the “government speech doctrine” and violated the First Amendment when it prohibited a Judeo-Christian organization from flying a religious flag on a city hall flagpole while allowing hundreds of other flags, including those promoting gay pride events and the Islamic religion.

Mark D. Taticchi, D. Alicia Hickok, Renee M. Dudek, Elizabeth M. Casey, and Nicholas J. Nelson of Faegre Drinker Biddle & Reath LLP helped to shape and advance the arguments in the amicus brief.

“This is exactly the slippery slope that we have been warning about for years when it comes to the so-called ‘government speech doctrine’ which empowers the government to censor private speech whenever it occurs in a public or government forum,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “What started out years ago as attempts to use the ‘government speech doctrine’ to censor license plates that were perceived as politically incorrect has snowballed into broad efforts to whitewash and restrict any First Amendment-protected expression, including speech that is political or religious in nature, that occurs in public places.”

For twelve years, the City of Boston had allowed groups to temporarily fly a flag on one of its three flagpoles in front of City Hall. The City’s website stated that it wanted to create an environment where everyone feels included and to foster diversity and build connections among Boston’s many communities. The application form noted that the City sought to accommodate all applicants seeking to take advantage of its public forums. For that purpose, the City had approved 284 flag-raising events and had never denied any group’s application to fly its flag until 2017 when Camp Constitution applied to fly a Christian flag as part of an event featuring speeches by local clergy on Boston’s history as part of an effort to enhance understanding of the country’s Judeo-Christian moral heritage. Although the City had previously allowed groups to fly flags of other countries, such as the Turkish flag which contains religious imagery of the star and crescent of the Islamic Ottoman Empire, and flags celebrating causes such as gay pride, the City denied Camp Constitution’s flag-raising request. Camp Constitution submitted another request to raise a Christian flag for an event to celebrate the contributions which Boston’s Christian community has made to the City’s cultural diversity, and which would feature a reverend speaking on the need for racial reconciliation and a pastor speaking on the blessings of religious freedom. Camp Constitution’s second request was also not granted. In filing suit against the City, Camp Constitution alleged that government officials violated their First Amendment rights by refusing to allow the Christian flag to be flown on a flagpole which the City had opened to the public for raising other flags. Both the district court and the appellate court ruled in favor of Boston, affirming its decision not to allow Camp Constitution to fly a Christian flag.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

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