throbber
No. 20-1800
`
`IN THE
`Supreme Court of the United States
`————
`HAROLD SHURTLEFF, et al.,
`Petitioners,
`
`v.
`CITY OF BOSTON, MASSACHUSETTS, et al.,
`Respondents.
`
`————
`On Writ of Certiorari to the
`United States Court of Appeals
`for the First Circuit
`————
`BRIEF OF LOCAL GOVERNMENT
`ORGANIZATIONS AS AMICI CURIAE
`IN SUPPORT OF RESPONDENTS
`————
`DANIEL H. BROMBERG
`Counsel of Record
`PILLSBURY WINTHROP
`SHAW PITTMAN, LLP
`Four Embarcadero Center
`22nd Floor
`San Francisco, CA 94111
`(415) 983-1000
`dan.bromberg@pillsburylaw.com
`SHELBY L. DYL
`PILLSBURY WINTHROP
`SHAW PITTMAN, LLP
`1200 Seventeenth Street, N.W.
`Washington, D.C. 20036
`(202) 663-9010
`shelby.dyl@pillsburylaw.com
`Counsel for Amici Curiae
`December 22, 2021
`
`LISA E. SORONEN
`EXECUTIVE DIRECTOR
`STATE & LOCAL
`LEGAL CENTER
`444 N. Capitol Street, N.W.
`Suite 515
`Washington, D.C. 2001
`(202) 434-4845
`lsoronen@sso.org
`
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
`
`

`

`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES ................................
`INTERESTS OF AMICI CURIAE ......................
`INTRODUCTION AND SUMMARY ..................
`ARGUMENT ........................................................
`I. AMICI’S SURVEY SHOWS THAT LOCAL
`GOVERNMENTS FLY THIRD-PARTY
`FLAGS TO CONVEY GOVERNMENT
`MESSAGES ..............................................
`A. Local Governments Rarely Fly Third-
`Party Flags ..........................................
`B. When Local Governments Fly Third-
`Party Flags, They Do So to Convey
`Government Messages ........................
`C. Local Governments Generally Exercise
`Close Control over the Third-Party
`Flags Flown on Their Flagpoles ..........
`D. The Public Understands that Local
`Governments Express Government
`Messages in Flying Third-Party Flags
` ..............................................................
`II. LOCAL GOVERNMENTS SHOULD BE
`ALLOWED BROAD CONTROL OVER
`THE THIRD-PARTY FLAGS THAT
`THEY FLY ................................................
`A. Local Governments Engage
`in
`Government Speech When They Fly
`Third-Party Flags ................................
`
`iii
`1
`2
`5
`
`5
`
`5
`
`7
`
`9
`
`12
`
`13
`
`13
`
`(i)
`
`

`

`ii
`TABLE OF CONTENTS—Continued
`
`
`
`Page
`
`15
`
`B. Important Government Speech Will
`Be Discouraged or Lost If Flying
`Third-Party Flags is Held to Create a
`Forum ...................................................
`III. LOCAL GOVERNMENTS NEED GUID-
`ANCE ON HOW THEY MAY FLY
`THIRD-PARTY FLAGS WITHOUT
`CREATING A FORUM .............................
`CONCLUSION ....................................................
`APPENDIX:
`APPENDIX A: IMLA Survey Summary .......
`APPENDIX B: IMLA
`Survey Detailed
`Responses ....................................................... 19a
`
`18
`22
`
`1a
`
`
`
`

`

`iii
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`18
`
`14
`
`Arkansas Educ. Television Comm’n v. Forbes,
`523 U.S. 666 (1998) ...................................
`Cornelius v. NAACP Legal Defense &
`Educ. Fund, Inc.,
`473 U.S. 788 (1985) ................................... 21–22
`Griffin v. Sec’y of Veteran’s Affairs,
`288 F.3d 1309 (Fed. Cir. 2002) .................
`Johanns v. Livestock Marketing Ass’n,
`544 U.S. 550 (2005) ................................... 14, 15
`Leake v. Drinkard,
`14 F.4th 1242 (11th Cir. 2021) .................
`Matal v. Tam,
`137 S. Ct. 1744 (2017) ...............................
`Pleasant Grove City, Utah v. Summum,
`555 U.S. 460 (2009) ..................................passim
`Spence v. State of Wash.,
`418 U.S. 405 (1974) ................................... 2, 14
`Texas v. Johnson,
`491 U.S. 397 (1989) .................................. 2, 14
`Walker v. Tex. Div., Sons of Confederate
`Veterans, Inc.,
`576 U.S. 200 (2015) ............................. 14, 15, 20
`West Va. State Bd. of Educ. v. Barnette,
`319 U.S. 624 (1943) ...................................
`
`16
`
`20
`
`14
`
`CONSTITUTION
`
`U.S. Const. amend. I ........................ 13, 14, 18, 19
`
`
`
`
`
`

`

`iv
`TABLE OF AUTHORITIES—Continued
`
`LEGISLATIVE MATERIALS
`
`Page(s)
`
`Largo, Florida, Legislative Policies § 7.1:
`Inclusion and Community Recognition,
`Resolution 2249 (Nov. 4, 2019), https://t
`inyurl.com/mrxp3rfm ................................
`Whitney McDonald, City Manager for the
`City of Arroyo Grande, Memorandum to
`City Council (May 25, 2021), https://tiny
`url.com/ysk8kj9n .......................................
`
`OTHER AUTHORITIES
`
`Josh Bickford, Town Manager Flies Black
`Lives Matter Flag at Town Hall, East Bay
`Exclusive (Sept. 1, 2020), https://tinyurl.
`com/ycybcjcm .............................................
`City Receives Many Complaints, Few Com-
`pliments about Pride Flag, NCFL Inde-
`pendent (June 28, 2018), https://tinyurl.
`com/4w2bb 2p3 ..........................................
`Mike Emett, San Felipe de Albuquerque
`and the Five Flags over Albuquerque,
`Clio: Your Guide to History (June 10,
`2017), https://theclio.com/entry/41691 .....
`Jenna Fisher, There’s a Ceremonial Flag
`Pole for That: Newton Mayor, Patch (June
`29, 2020), https://tinyurl.com/49dbjn9j ....
`Amanda Holpuch, Confederate Flag Removed
`from South Carolina Capitol in Victory
`for Activists, The Guardian (July 10,
`2015), https://tinyurl.com/2yubhbkm .......
`
`
`
`
`
`11
`
`10
`
`9
`
`12
`
`7
`
`11
`
`13
`
`

`

`v
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`9
`
`Cynthia Laird, LGBTQ History Month:
`Staten Island Museum Throws Open
`Austen’s Closet Door, Out In Jersey (Oct.
`25, 2021), https://tinyurl.com/ywzrkktv ....
`Kaytlyn Leslie, Arroyo Grande City Hall
`Will Fly Pride Flag. ‘Our Town Won’t
`Stand for Intolerance,’ San Luis Obipso
`Tribune (May 26, 2021), https://tinyurl.
`com/ra8n6pn .............................................. 10–11
`Joey Peters, Albuquerque Removes Confed-
`erate Flag from Old Town; ‘Inaccurate
`Plaques’ Coming Down, NM Political
`Report (Aug. 3, 2015), https://tinyurl.
`com/29jmezec ............................................
`Lupe Zapata, Why Dallas City Leaders Are
`Bragging about Their Pride Flag, Spec-
`trum Local News (June 14, 2021), https://
`tinyurl.com/2p97cbpb ...............................
`
`13
`
`9
`
`
`
`

`

`
`
`INTERESTS OF AMICI CURIAE1
`Amici curiae are organizations that represent cities,
`counties, and other local governments as well as local
`officials and local government attorneys:
` Founded in 1935, the National Association of
`Counties is the only national association that
`represents county governments.
` The National League of Cities is the oldest and
`largest organization representing municipal
`governments, currently numbering more than
`19,000 cities, villages, and towns throughout
`the United States.
` The United States Conference of Mayors is the
`official nonpartisan organization of the more
`than 1,400 United States cities, each repre-
`sented by
`its chief elected official, with
`populations of 30,000 or more.
` The International City/County Management
`Association is a nonprofit professional and edu-
`cational organization of over 9,000 appointed
`chief executives and assistants serving cities,
`counties, towns, and regional entities.
` Owned solely by its more than 2,500 members,
`the International Municipal Lawyers Association
`(“IMLA”) is an advocate and resource for local
`government attorneys and serves as a clearing-
`
`
`1 The parties have provided blanket consent to filing amicus
`briefs. No counsel for a party authored this brief in whole or in
`part; no counsel or party made a monetary contribution intended
`to fund the preparation or submission of this brief; and no person
`other than amici, their members, or their counsel made a
`contribution to its preparation or submission.
`
`

`

`2
`house for legal information and cooperation on
`municipal legal matters.
`Many of the local governments represented by amici
`own and operate flagpoles. Some local governments
`occasionally raise flags from unaffiliated jurisdictions,
`private organizations, and movements on their flag-
`poles, and other local governments have considered
`doing so. As a consequence, amici are deeply inter-
`ested in whether local governments create a forum for
`private speech by raising third-party flags on their
`flagpoles.
`To ensure that the Court considers this issue with
`knowledge of current local practices, amicus IMLA
`surveyed its members concerning those practices.
`This brief describes the results of that survey and
`discusses their implications. IMLA submitted an
`amicus brief describing a similar survey in Pleasant
`Grove City, Utah v. Summum, 555 U.S. 460 (2009); see
`also id. at 471–72, 475–76 & n.3 (citing IMLA’s brief).
`
`INTRODUCTION AND SUMMARY
`Flags are a “form of symbolism” that provides “a
`primitive but effective way of communicating ideas.”
`Spence v. State of Wash., 418 U.S. 405, 410 (1974)
`(quotation marks omitted). The American flag, for
`example, is a symbol not only of solidarity and
`national unity, but also of “the ideas that characterize
`the society that has chosen that emblem.” Texas v.
`Johnson, 491 U.S. 397, 436 (1989) (Stevens, J.
`dissenting).
`Most local governments use their flagpoles to fly
`the American flag as well as state and local flags in
`order to convey such messages of unity and shared
`community values. Occasionally, however,
`local
`governments fly flags of third parties not directly
`
`

`

`3
`affiliated with them. For example, local governments
`may fly flags of other countries, flags of non-profit
`organizations and charities, or flags associated with
`a movement or idea such as the POW/MIA or Lesbian,
`Gay, Bisexual, Transgender and Queer (“LGBTQ”)
`Pride flags. Doing so conveys important government
`messages. By flying the flag of a foreign country, a
`local government may express welcome to visitors
`from that country or support for members of the
`community with connections to the country. By flying
`the flag of a non-profit organization or charity, a local
`government may express support for that entity and
`its objectives. And by flying the POW/MIA or LGBTQ
`Pride flag, a local government may endorse the
`particular message associated with that flag.
`Local governments do not choose to fly third-party
`flags lightly. Indeed, the survey conducted by IMLA
`reveals that most local governments do not fly third-
`party flags at all. However, when local governments
`fly third-party flags, they generally do so with the
`conscious intent of conveying a government message,
`and they maintain control over such messages. In fact,
`many local governments fly third-party flags only at
`their own initiative, and decisions whether to fly such
`flags typically are made by the governing legislative
`body or by a high-ranking executive official such as the
`mayor. Not surprisingly, the public understands that
`third-party flags express government messages, and
`members of the public may protest when they disap-
`prove of those messages.
`Local governments should be allowed to exercise
`broad control over the third-party flags flown on their
`flag poles. Third-party flags express messages wherever
`flown. However, when flown on a government flagpole,
`third-party flags convey additional messages, often of
`
`

`

`4
`unique importance, from the local government that
`owns the flagpole, and the local government should
`be permitted to exercise broad control over such
`messages. If raising third-party flags were deemed
`automatically to create a forum for private speech—
`whether a designated public forum, limited public
`forum, or non-public forum—local governments would
`lose such control, which would discourage them from
`flying third-party flags, and valuable government
`speech would be lost.
`Amici support the City of Boston and urge that the
`decision below be upheld. However, the IMLA survey
`demonstrates that Boston has flown an unusually
`large number of third-party flags. Consequently,
`whatever the Court ultimately rules in this case, it
`should make clear that a party claiming that a local
`government flagpole has become a government-created
`forum for private speech bears a heavy burden. In
`addition, the Court should provide local governments
`with clear guidance on how they may avoid creating
`such a forum while still flying third-party flags, for
`example, by issuing resolutions endorsing the third-
`party flags that they fly, adopting written policies
`explicitly stating that they are expressing government
`messages by flying third-party flags, or otherwise
`expressly retaining control over the content of third-
`party flags. At a minimum, the Court should make
`clear that a local government does not create a forum
`for private speech by deciding on its own initiative to
`fly a third-party flag.
`
`
`
`
`
`
`
`

`

`5
`ARGUMENT
`I. AMICI’S SURVEY SHOWS THAT LOCAL
`GOVERNMENTS FLY THIRD-PARTY
`FLAGS TO CONVEY GOVERNMENT
`MESSAGES
`To aid the Court in deciding this case, amicus IMLA
`surveyed hundreds of its members about local govern-
`ment practices concerning third-party flags—that is,
`flags not from the local government or a related juris-
`diction, such as flags from foreign countries, private
`organizations, or social movements—on flagpoles owned
`by the local governments. IMLA received over 240
`responses in total with more than 100 providing
`detailed information. The appendices to this brief
`summarize the results of the survey (Appendix A) and
`detail selected responses (Appendix B).
`The survey’s results show that most local govern-
`ments do not fly third-party flags. However, the local
`governments that fly third-party flags do so to convey
`a government message, often of friendship for or support
`of a community group. In addition, local governments
`carefully control the third-party flags flown on their
`flagpoles. Indeed, many do not entertain requests to
`fly third-party flags and consider whether to fly such
`flags only on their own initiative. And most of the local
`governments that entertain requests from private parties
`grant such requests only if they approve of the content
`of the flags, usually through either the governing
`legislative body or a high-ranking executive official.
`
`A. Local Governments Rarely Fly Third-
`Party Flags
`IMLA’s survey shows that local governments rarely
`fly third-party flags. The survey asked what types of
`third-party flags local governments fly, but included
`
`

`

`6
`the option that the local government did not fly third-
`party flags. App. 3a. Out of the 115 local governments
`that responded to this question, most answered that
`they do not fly third-party flags. Id. Indeed, 78 local
`governments—nearly 68%—answered that they do
`not fly third-party flags, id., and that number goes up
`to 84 (or 73%) when those who otherwise explained
`that they do not fly third-party flags are included.
`In addition, about half of the 31 local governments
`that answered that they fly third-party flags indicated
`that they did so at their own initiative, not at the
`request of third parties.2 The survey asked local
`governments that fly third-party flags what initiated
`their action. App. 4a. Only 16, approximately 52% of
`the local governments that fly third-party flags—and
`about 15% of all those responding to the relevant
`questions—responded that the requests were initiated
`by private persons. Id. Two of the remaining local
`governments flying third-party flags solicit requests,
`id., and several others indicated that requests were
`initiated by government officials, such as a city com-
`missioner, App. 48a (Largo, FL, #208), city council
`member, App. 26a (Montgomery, MD, #63), or city
`council, App. 45a (Overland Park, KS, #195).
`
`
`
`
`
`
`2 The third-party flags flown by local governments fall into a
`few dominant categories: flags of foreign countries, flags honoring
`a person or entity, event-specific flags, and flags affiliated with
`charities. App. 3a. Only one local government indicated that it
`had flown a religious flag. App. 43a (Ashland, OH, #189).
`
`

`

`7
`B. When Local Governments Fly Third-
`Party Flags, They Do So to Convey
`Government Messages
`In the IMLA survey, local governments indicated
`that, when they fly third-party flags, they do so to
`convey a government message. The survey asked
`what message local governments try to convey when
`they fly third-party flags. App. 9a. Of the 40 local
`governments that responded, 34 (or 75%) answered
`that they intended to convey some message, and
`sometimes multiple ones, by flying third-party flags.
`Id. These messages include: support for an event (11),
`support for a party (3), welcome to a party or its
`representative (5), identification of a party (5),
`promotion of a local entity (4), and endorsement of the
`message conveyed by the flag (9). Id.
`Local governments often fly flags of foreign coun-
`tries at events or during holidays associated with
`particular nationalities. For example, local govern-
`ments may fly foreign flags during Irish or Italian
`holidays and festivals. E.g., App. 31a–32a (Cuyahoga
`Falls, OH, #98). Like Boston, many local governments
`fly foreign flags to celebrate the diversity of their
`citizens, such as Philadelphia (#219), which raises
`international flags to honor the city’s immigrant com-
`munities. App. 53a. And Albuquerque, New Mexico
`(#240) flies the Spanish and Mexican flags alongside
`the American, New Mexico, and Albuquerque flags in
`a city-owned plaza to commemorate the city’s Spanish
`and Mexican heritage. App. 57a; see also Mike
`Emett, San Felipe de Albuquerque and the Five Flags
`over Albuquerque, Clio: Your Guide to History (June
`10, 2017), https://theclio.com/entry/41691.
`In addition, local governments fly third-party flags
`to welcome individuals. For example, five local
`
`

`

`8
`governments reported that they fly third-party flags to
`welcome parties or their representatives. App. 23a,
`31a, 41a, 50a, 55a (Juneau, AK, #26; Midvale, UT, #86;
`Mitchell, SD, #162; Largo, FL, #208; Philadelphia, PA,
`#219). Some fly flags to welcome individuals within
`their own community. E.g., App. 48a (noting that Largo,
`FL, #208 flies the Pride flag and a National Police
`Week flag); App. 39a (noting that Mitchell, SD, #162
`flies the flags of military and veteran groups). Local
`governments also fly flags of foreign countries to welcome
`foreign dignitaries. E.g., App. 21a, 23a (Juneau, AK,
`#26). And the City of Juneau, Alaska (#26) welcomes
`tourists by flying the flags of every state in the nation
`at the port where cruise ships dock. App. 21a.
`Other local governments fly third-party flags to
`express support for community members and organ-
`izations. Several local governments fly flags of local
`universities and local non-profits to express community
`support for them. E.g., App. 23a–24a (Plymouth, IN,
`#44). Others fly flags to honor individuals of distinc-
`tion, such as Greenfield, Indiana (#229), which flies a
`flag for an annual event honoring James Whitcomb
`Riley, an Indiana writer, poet, and author. App. 55a.
`Local governments also fly third-party flags because
`they endorse the message conveyed by the flags. E.g.,
`App. 25a, 29a, 31a, 37a, 39a, 46a, 50a, 59a (Plymouth,
`IN, #44; San Luis, AZ, #76; Midvale, UT, #86; Aliso
`Viejo, CA, #134; New York, NY, #160; Overland Park,
`KS, #195; Largo, FL, #208; Portland, OR, #214;
`Albuquerque, NM, #240). For example, many cities fly
`the POW/MIA flag to express support for and thanks
`to veterans and their families as well as respect for
`prisoners of war and those missing in action. E.g., App.
`19a, 29a, 45a, 57a (Idaho Falls, ID, #23; San Luis, AZ,
`#76; Overland Park, KS, #195; Gilbert, AZ, #238).
`
`

`

`9
`Other local governments fly the Black Lives Matter
`flag or the LGBTQ Pride flag to communicate support
`for diversity, inclusivity, equality, and respect. E.g.,
`App. 26a, 33a, 42a (Montgomery County, MD, #63;
`Shoreline, WA, #118; Iowa City, IA, #180).3 For
`example, during Pride month, New York City (#160)
`flies the Pride flag at the Alice Austen house, a
`museum that is a nationally designated LGBTQ historic
`site. See Cynthia Laird, LGBTQ History Month: Staten
`Island Museum Throws Open Austen’s Closet Door,
`Out In Jersey (Oct. 25, 2021), https://tinyurl.com/ywzr
`kktv.4 And in Dallas, Texas, the City Council took the
`extra step of authorizing a customized Pride flag includ-
`ing the city’s seal to fly at the Dallas City Hall during
`Pride month. See also Lupe Zapata, Why Dallas City
`Leaders Are Bragging About Their Pride Flag, Spectrum
`Local News (June 14, 2021), https://tinyurl.com/2p97cbpb.
`
`C. Local Governments Generally Exercise
`Close Control over the Third-Party
`Flags Flown on Their Flagpoles
`Local governments generally do not open up their
`flagpoles to a broad range of third-party flags. As
`noted above, of the more than 240 local governments
`that responded to the IMLA survey, only 31 fly third-
`party flags, and only 16 of these accept requests from
`third parties. See supra p. 6. Moreover, even local
`governments that fly third-party flags frequently
`reject requests to do so. The survey asked local
`
`
`3 See Josh Bickford, Town Manager Flies Black Lives Matter
`Flag at Town Hall, East Bay Exclusive (Sept. 1, 2020),
`https://tinyurl.com/ycybcjcm.
`4 This information was confirmed by telephone conversation
`with Stephen Louis and Sheryl Neufeld, New York City Law
`Department, November 21, 2021.
`
`

`

`10
`governments that fly third-party flags whether they
`had ever rejected a request to fly a flag. App. 4a. More
`than one-third, 10 out of the 26 local governments that
`responded to this question, indicated that they have
`rejected a request. Id. Sometimes these requests are
`refused based on content-neutral considerations such
`as lack of space or the timing of the request. App. 5a
`(noting three denials for lack of space and one based
`on timing). Even more often, however, local govern-
`ments deny requests to fly third-party flags based on
`the subject matter of the flag, the message conveyed,
`or opposition to the third-party. Id. (noting two
`denials on each ground).
`For example, in response to the Black Lives Matter
`movement, one city received a request to display the
`“Thin Blue Line” flag, but the city declined the request
`due to the flag’s association with opposition to the
`Black Lives Matter and racial justice movements. App.
`30a (Midvale, UT, #86). Many local governments
`refuse to fly third-party flags altogether out of concern
`that doing so will express a controversial message
`from the local government. E.g., App. 26a, 29a–30a
`(Shaker Heights, OH, #53; Redmond, OR, #81).
`In addition, some local governments have policies
`expressly stating that they will fly a third-party flag
`only if they endorse the message expressed by the flag.
`For example, Arroyo Grande, California has a policy
`that commemorative flags may be flown on flagpoles
`owned by the city “as an expression of the City
`Council’s official sentiments (government speech).”
`Whitney McDonald, City Manager for the City of
`Arroyo Grande, Memorandum to City Council (May
`25, 2021), https://tinyurl.com/ysk8kj9n; see Kaytlyn
`Leslie, Arroyo Grande City Hall Will Fly Pride Flag.
`‘Our Town Won’t Stand for Intolerance,’ San Luis
`
`

`

`11
`Obipso Tribune (May 26, 2021), https://tinyurl.com/
`ra8n6pn. Similarly, Newton, Massachusetts has a policy
`stating that the “ceremonial” flagpole at city hall “has
`traditionally been used to promote government speech”
`and “any flag placed on the ceremonial flagpole espouses
`a message that is important to the City.” See Jenna
`Fisher, There’s a Ceremonial Flag Pole for That: Newton
`Mayor, Patch (June 29, 2020), https://tinyurl.com/49
`dbjn9j. Other local governments have policies that limit
`the subject matters that may be addressed by third-
`party flags, for example, to national flags celebrating
`citizens’ origins, App. 53a–54a (Philadelphia, PA, #219),
`or to “honor or feature someone or something, including
`groups, events, or special designations,” App. 48a–49a
`(Largo, FL, #208); Largo, Florida, Legislative Policies
`§ 7.1: Inclusion and Community Recognition, Resolution
`2249 (Nov. 4, 2019), https://tinyurl.com/mrxp3rfm.
`Further, local governments do not allow third
`parties to raise flags without government approval. To
`the contrary, when local governments allow flags of
`unrelated entities or of movements, the decisions are
`usually made by the governing legislative body or by
`some high-ranking executive such as the mayor.
`IMLA’s survey asked local governments to identify
`the decision-maker regarding acceptance or rejection
`and display of third-party flags, and 60% of local
`governments that responded to the question, 38 out of
`63, reported that a government executive, such as the
`mayor, is the decision maker. App. 7a; see also App.
`22a, 27a, 42a (Juneau, AK, #26; Montgomery County,
`MD, #63; Iowa City, IA, #180). The next largest
`category (with 22 responses) was local governments
`that identified their legislative body as the decision-
`maker regarding third-party flags. App. 7a. In
`some cases, such legislative bodies have enacted
`written policies approving certain third-party flags or
`
`

`

`12
`otherwise governing use of local government flagpoles.
`E.g., App. 21a, 50a (Idaho Falls, ID, #23; Largo, FL,
`#208).
`
`D. The Public Understands that Local
`Governments Express Government
`Messages in Flying Third-Party Flags
`The public understands that flying third-party
`flags on government flagpoles expresses government
`messages. IMLA’s survey asked whether the local
`governments were aware of any instances of expressed
`public opposition to the existence of a government-
`conveyed message of a third-party. App. 18a. In
`response, several local governments reported protests
`against the governments flying third-party flags when
`community members disagreed with the message
`conveyed.
`For example, in some cities, flying the LGBTQ Pride
`flag provoked opposition from community members
`who objected to the cities expressing support for the
`LGBTQ community. In Fernandina Beach, Florida
`(#101), the city manager received nearly 40 complaints
`about raising the Pride flag at city hall during
`Pride month. See City Receives Many Complaints, Few
`Compliments about Pride Flag, NCFL Independent
`(June 28, 2018), https://tinyurl.com/4w2bb2p3. The
`following year, he chose to not fly the Pride flag.
`See id.
`In other cities, community members have objected
`to the message conveyed by flying the Confederate
`flag. For instance, in addition to flying the Spanish
`and Mexican flags, Albuquerque (#240) used to fly the
`Confederate flag. App. 57a. However, a coalition of
`civic leaders and lawmakers protested the flag
`and the message that it conveyed, and in 2015
`
`

`

`13
`Albuquerque replaced the Confederate flag with the
`city’s flag. See Joey Peters, Albuquerque Removes
`Confederate Flag from Old Town; ‘Inaccurate Plaques’
`Coming Down, NM Political Report (Aug. 3, 2015),
`https://tinyurl.com/29jmezec; see also Amanda Holpuch,
`Confederate Flag Removed from South Carolina Capitol
`in Victory for Activists, The Guardian (July 10, 2015);
`https://tinyurl.com/2yubhbkm (Confederate flag removed
`from South Carolina’s statehouse after decades of
`protest).
`
`II. LOCAL GOVERNMENTS SHOULD BE
`ALLOWED BROAD CONTROL OVER THE
`THIRD-PARTY FLAGS THAT THEY FLY
`When governments speak on behalf of themselves
`and their constituents, First Amendment restrictions
`do not apply, and the governments are permitted to
`exercise full control over that speech’s content even
`though it is associated with that of third parties. See,
`e.g., Pleasant Grove City, Utah v. Summum, 555 U.S.
`460, 467–68 (2009). This Court should recognize that
`local governments engage in government speech when
`they fly third-party flags on government flag poles. If
`local governments are deemed to create a forum for
`private speech whenever they fly third-party flags,
`they will lose control over the message conveyed,
`and most will refuse to fly such flags and valuable
`government speech will be lost.
`
`A. Local Governments Engage in Govern-
`ment Speech When They Fly Third-
`Party Flags
`As the City of Boston demonstrates, flags are a
`quintessential means by which governments—and local
`governments in particular—historically have conveyed
`
`
`

`

`14
`messages to the public. Resp. Br. 19, 22–27; see also
`Texas v. Johnson, 491 U.S. at 426 (Rehnquist, C.J.,
`dissenting) (noting the message conveyed by flying
`the American flag in “city halls”). Because flags can
`“symbolize some system, idea, institution or person-
`ality,” West Va. State Bd. of Educ. v. Barnette, 319 U.S.
`624, 632 (1943), flying a flag is a symbolic act that
`communicates ideas, Spence, 418 U.S. at 410, and
`therefore governments engage in speech when they fly
`flags. See Griffin v. Sec’y of Veteran’s Affairs, 288 F.3d
`1309, 1324 (Fed. Cir. 2002).
`It is well-settled that, while the Free Speech Clause
`of the First Amendment “restricts government regula-
`tion of private speech,” it “does not regulate government
`speech.” Summum, 555 U.S. at 467; see also Walker v.
`Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S.
`200, 215 (2015) (“[When] the State is speaking on its
`own behalf, the First Amendment strictures that attend
`the various types of government-established forums
`do not apply.”); Johanns v. Livestock Marketing Ass’n,
`544 U.S. 550, 553 (2005) (“The Government’s own
`speech
`is exempt
`from First Amendment
`. . .
`scrutiny.”).5 Thus, a local government “is entitled to
`say what it wishes, and to select the views that it
`wants to express.” Summum, 555 U.S. at 467–68
`(citations and quotation marks omitted).
`In addition, as this Court has recognized in prior
`cases, a local government’s right to express its own
`views is not diminished “when it receives assistance
`from private sources for the purpose of delivering a
`
`5 Government speech, however, “must comport with the
`Establishment Clause.” Summum, 555 U.S. at 468. Thus, the
`Establishment Clause limits the ability of local governments to
`fly religious flags in a manner that endorses or expresses support
`for religious groups or creeds. See infra p. 19 n.7.
`
`

`

`15
`government-controlled message.” Summum, 555 U.S.
`at 468. “The fact that private parties take part in the
`design and propagation of a message does not extin-
`guish the governmental nature of the message or
`transform the government’s role into that of a mere
`forum-provider.” Walker, 576 U.S. at 217. Indeed, this
`Court has consistently recognized that private parties
`can, and often do, assist government entities in deliv-
`ering government speech. See id. at 210–11 (license plates
`designed and proposed by private parties); Summum,
`555 U.S. at 481 (monuments donated by private party
`to be displayed in public park); Johanns, 544 U.S. at
`562 (beef promotions designed by private party).
`Thus, when a local government flies a third-party
`flag on a government flagpole, it is engaging in
`government speech and should have broad control
`over the speech conveyed even though that speech is
`mixed with speech by the country, private entity, or
`movement symbolized by that flag.
`
`B. Important Government Speech Will Be
`Discouraged or Lost If Flying Third-
`Party Flags is Held to Create a Forum
`As IMLA’s survey demonstrates, local governments
`express important messages in raising on their flag-
`poles the flags of unaffiliated jurisdictions, private
`entities, and movements. For example, by flying the
`flags of foreign countries and other flags associated
`with particular parts of their communities, local gov-
`ernments express support for specific communities,
`and more generally, convey a message of diversity and
`inclusivity that knits the entire community together.
`This valuable government speech would be discour-
`aged or lost entirely if raising such flags were held
`to establish a government-created forum for private
`speech automatically or easily.
`
`

`

`16
`IMLA’s survey shows that many local governments
`already have decided not to raise third-party flags
`because of uncertainty whether doing so would create
`a forum for private speech. Such a forum, whether
`public or nonpublic, would restrict the local govern-
`ment’s control over the content of—and consequent
`messages conveyed by the flying of—those flags.
`Fourteen local governments specifically identified fear
`of litigation over other requests the local government
`would oppose under forum analysis as

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