`
`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 FOR MASSACHUSETTS, CONNECTICUT,
`DELAWARE, THE DISTRICT OF COLUMBIA,
`HAWAII, MAINE, MINNESOTA, NEW YORK,
`OREGON, AND VIRGINIA AS AMICI CURIAE IN
`SUPPORT OF RESPONDENTS
`_________
`
`
`MAURA HEALEY
`Attorney General for the
`Commonwealth of Massachusetts
`David C. Kravitz*
` Deputy State Solicitor
`Phoebe Fischer-Groban
`Grace Gohlke
` Assistant Attorneys General
`One Ashburton Place
`Boston, MA 02108
`david.kravitz@mass.gov
`(617) 963-2427
` *Counsel of Record
`(Additional counsel listed on signature pages.)
`
`
`
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`
`Page
`
`
`
`INTERESTS OF AMICI CURIAE ........................... 1
`SUMMARY OF THE ARGUMENT ......................... 2
`ARGUMENT ............................................................. 4
`I. A robust government speech doctrine is
`essential for government to function. ................. 4
`II. A reasonable observer would normally attribute
`to the government the speech associated with a
`flag flying over government property. ................ 7
`A. Flags are a uniquely potent form of
`government speech. ...................................... 8
`B. Flag displays on government property
`generate controversy precisely because
`local residents reasonably attribute them
`to the government. ...................................... 10
`III.Governments routinely engage in speech by
`flying flags over government property that
`represent other nations or mark occasions of
`civic importance. ............................................... 16
`A. Flying the flag of another nation to
`honor a local community or for other
`civically-important reasons is a common
`form of government speech. ........................ 17
`B. Flying a flag to commemorate holidays
`and other occasions of civic importance is
`paradigmatic government speech. ............. 24
`IV. Reversal in this case will inevitably lead to less
`speech. ............................................................... 26
`CONCLUSION ....................................................... 29
`
`
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Cases
`
`
`
`Ark. Ed. Television Comm’n v. Forbes, 523 U.S.
`666 (1998)............................................................ 28
`
`Page
`
`
`Board of Regents of Univ. of Wis. System v.
`Southworth, 529 U.S. 217 (2000) ......................... 5
`
`
`Commonwealth v. Dayton, 75 N.E.3d 600
`(Mass. 2017) ........................................................ 22
`
`
`Cornelius v. NAACP Legal Def. Fund, 473 U.S.
`788 (1985)............................................................ 28
`
`
`Leake v. Drinkard, 14 F.4th 1242 (11th Cir.
`2021) ............................................................... 27-28
`
`
`Matal v. Tam, 137 S. Ct. 1744 (2017) ................... 4-6
`
`National Endowment for the Arts v. Finley, 524
`U.S. 569 (1998) ..................................................... 4
`
`
`Perry Educ. Ass’n v. Perry Local Educators’
`Ass’n, 460 U.S. 37 (1983) .................................... 27
`
`
`Pleasant Grove City, Utah v. Summum, 555
`U.S. 460 (2009) ........................... 4, 5, 7, 13, 26, 28
`
`
`Texas v. Johnson, 491 U.S. 397 (1989) .............. 8, 22
`
`
`
`
`
`
`iii
`
`United Veterans Mem’l & Patriotic Ass’n of the
`City of New Rochelle v. City of New Rochelle,
`72 F. Supp. 3d 468 (S.D.N.Y. 2014), aff’d,
`615 Fed. App’x 693 (2d Cir. 2015) ................. 12-14
`
`
`Walker v. Texas Div., Sons of Confederate
`Veterans, Inc., 576 U.S. 200 (2015) .............. 4, 5, 7
`
`
`
`Constitutional Provisions, Statutes, and
`Legislative Materials
`
` U.S.C. § 7 ............................................................... 9
`
` 4
`
` 5
`
` U.S.C. § 6103 ....................................................... 19
`
`
`36 U.S.C. § 107 ....................................................... 19
`
`1895 Mass. Stat. ch. 115 ........................................ 22
`
`H. 444 (introduced Apr. 7, 2021),
`legislature.vermont.gov ...................................... 19
`
`
`Mass. Gen. L. ch. 264, § 8 ....................................... 22
`
`
`Miscellaneous
`
`Alex Gault, Clayton moves to ban non-national
`flags from village flagpoles, NNY360.com
`(Aug. 4, 2021) ...................................................... 20
`
`
`Boston Arts & Culture Cable Office, Italian
`Flag Raising, cityofboston.gov (Oct. 5, 2018) .... 23
`
`
`
`
`
`
`iv
`
`
`
`Cable Office, Dep’t of Neighborhood
`Development, LGBT Pride Flag Raising
`2017, cityofboston.gov (June 2, 2017) ................ 26
`
`
`California Governor Gavin Newsom,
`Proclamation, gov.ca.gov (Oct. 8, 2021) ............. 20
`
`
`Camp Constitution, Communist China Flag
`Raising at Boston’s City Hall Plaza,
`youtube.com (Sept. 29, 2019) ............................. 11
`
`
`City of Arroyo Grande, Policy on Display of
`Flags, arroyogrande.org (May 25, 2021) ............ 18
`
`
`City of Barre, Policy on Flag Displays,
`barrecity.org (rev. Nov. 24, 2020) ...................... 19
`
`
`City of Belvedere, Policy 20-6: Flag Policy,
`cityofbelvedere.org ......................................... 24-25
`
`
`City of Gilroy, Policy for Flying Flags at City
`Facilities, cityofgilroy.org (May 17, 2021) ......... 18
`
`
`City of Montpelier, Flag Display, montpelier-
`vt.org ................................................................... 19
`
`
`City of National City (@CityOfNatlCity),
`twitter.com (Oct. 11, 2021, 11:29 am) ................ 19
`
`
`City of San José, Exhibition of Federal, State,
`and City Flags from City Buildings—All
`Occasions, sanjoseca.gov (rev. Oct. 17, 2006) .... 18
`
`
`
`
`
`
`
`
`v
`
`City of Solon, Ohio Police Department,
`Statement from Mayor Kraus on Raising
`Original Thin Blue Line Flag, facebook.com
`(July 16, 2021, 11:28 a.m.) ................................. 15
`
`
`City of Spokane, Use and Display of U.S. Flag,
`State Flag, and Other Flags, mrsc.org, (Dec.
`2, 2018) ................................................................ 25
`
`
`Dave DeNatale, Solon mayor: City will fly
`‘original’ Thin Blue Line flag to support law
`enforcement, WKYC.com (July 16, 2021, 5:44
`p.m.) .................................................................... 15
`
`
`David Boyle, Pride Banners on Heber City
`Main Street Draws Public Comment,
`KPCW.org (June 5, 2019, 7:24 a.m.) .................. 14
`
`
`Editors of Encyclopaedia Britannica, National
`Day (Chinese holiday), britannica.com (rev.
`Aug. 1, 2021) ....................................................... 11
`
`
`Executive Office of the Governor [of Florida],
`Flag Protocol, flgov.com (Sept. 26, 2012) ............. 9
`
`
`Francis X. Clines, End of the Soviet Union;
`Gorbachev, Last Soviet Leader, Resigns;
`U.S. Recognizes Republics’ Independence,
`N.Y. Times (Dec. 26, 1991) ................................ 8-9
`
`
`Hal Shurtleff, Letter to the Editor, Chinese
`flag raising ‘slap in the face to the city’,
`wickedlocal.com (Sept. 30, 2010, 11:06 p.m.) .... 12
`
`
`
`
`
`
`
`
`vi
`
`James F. Clarity, End of the Soviet Union; On
`Moscow’s Streets, Worry and Regret, N.Y.
`Times (Dec. 26, 1991) ........................................... 9
`
`
`Kathy Gannon, Taliban flag rises over seat of
`power on fateful anniversary, AP News
`(Sept. 11, 2021) ..................................................... 9
`
`
`Kentucky Governor Andy Beshear,
`Proclamations and Acclamations,
`governor.ky.gov ..................................................... 6
`
`
`Margaret Lowrie, Royal family hurt by
`criticism over Diana, cnn.com (Sept. 4, 1997) ... 10
`
`
`Massachusetts Governor Charles D. Baker, A
`Proclamation, mass.gov (Feb. 1, 2018) .............. 23
`
`
`Massachusetts Governor’s Office of
`Constituent Services, Issued Proclamations,
`mass.gov .............................................................. 24
`
`
`Maya Eliahou & Christina Zdanowicz, A Nazi
`flag was found flying at a public park in
`Wyoming, cnn.com (Aug. 2, 2018) ...................... 27
`
`
`Mike Dougherty, Barre hoists Black Lives
`Matter flag, with ‘thin blue line’ on deck,
`VTDigger.org (Dec. 1, 2020) ............................... 19
`
`
`Office of Governor Charlie Baker and Lt. Gov.
`Karyn Polito, Request a Proclamation from
`Governor Baker, mass.gov .................................... 6
`
`
`
`
`
`
`
`
`vii
`
`O’Ryan Johnson, Councilor, City Hall caught
`up in flag flap, Bos. Herald (Aug. 21, 2008) ...... 17
`
`
`Royal Standard, royal.uk .................................... 9-10
`
`Sean Philip Cotter, Protesters slam Marty
`Walsh for flying Chinese flag at Boston City
`Hall, Bos. Herald (Sept. 29, 2020) ..................... 11
`
`
`Secretary of Defense, Memorandum for Chief
`Management Officer of the Department of
`Defense, et al.: Public Display or Depiction of
`Flags in the Department of Defense,
`media.defense.gov (Jul. 16, 2020) ................. 20-21
`
`
`The Untold Story And Meaning Behind The
`RBG Flag, panafricanalliance.org (Dec. 7,
`2021) .................................................................... 17
`
`
`U.S. Embassy in Belgrade, When the Serbian
`Flag Flew Over the White House,
`rs.usembassy.gov (July 28, 2020) ...................... 21
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`
`
`INTERESTS OF AMICI CURIAE
`Amici Massachusetts, Connecticut, Delaware, the
`District of Columbia, Hawaii, Maine, Minnesota, New
`York, Oregon, and Virginia, like state and local
`governments
`around
`the
`country,
`embrace
`opportunities to communicate with our constituents
`on matters of public importance, to honor our
`constituents’ accomplishments, to celebrate the
`diverse
`communities
`that
`coexist within our
`jurisdictions, and to observe causes and occasions
`recognized by federal, state, and local authorities. We
`do all of these things in myriad ways, according to
`local traditions and customs, and in close collaboration
`with the people we serve. These practices strengthen
`the bonds between state and local governments and
`our
`constituents,
`thereby
`strengthening
`our
`democracy.
`Petitioners’ argument that one such practice, the
`City of Boston’s occasional flying of certain flags over
`Boston City Hall Plaza, created a “designated public
`forum,” threatens to destabilize these
`laudable
`practices. As both the district court and the court of
`appeals correctly concluded after extensive discovery
`and factfinding, the City’s flag-flying practice falls
`comfortably within the government speech doctrine.
`Therefore, it is not subject to the strictures of the First
`Amendment’s Free Speech Clause, as this Court’s
`cases have repeatedly recognized.
`Amici States value and strive to protect our
`residents’ free speech rights in public fora, but public
`forum analysis is inapposite here. To classify speech
`of the kind at issue here as purely private speech
`
`
`
`
`
`
`2
`
`
`within a public forum could force state and local
`governments to eliminate or drastically scale back
`programs
`designed
`to
`facilitate
`cooperative
`communication between public and private actors,
`thereby reducing speech, to the detriment of all
`concerned. Amici have a strong interest in avoiding
`that outcome so that we may continue communicating
`with and celebrating our constituents.
`SUMMARY OF THE ARGUMENT
`
`
`As this Court has repeatedly recognized, the
`government
`speech doctrine
`is essential
`for
`government to function. It is the very business of
`government to take positions and express viewpoints,
`and it would make no sense to require government to
`maintain viewpoint neutrality when it does so. And
`this remains true when government speaks in
`collaboration with private parties, whether to raise
`awareness of important issues or causes, to celebrate
`constituents’ achievements, or otherwise.
`This Court’s government speech cases have
`emphasized the importance of how a reasonable
`observer would attribute the speech in question. Case
`law, news reports, and common sense show that
`reasonable observers would—and do—attribute flags
`flying over government property to the government.
`Throughout history, governments have flown flags as
`a uniquely powerful means of sending a message. And
`examples from around the country—including one
`from Boston that arose out of the very policy at issue
`in this case—show that, when a government flies a
`flag over its property, local residents routinely
`attribute the flag’s message to the government.
`
`
`
`
`
`
`3
`
`
`
`The two types of flag-raisings in which Boston has
`engaged are emblematic of common
`forms of
`government speech, shared by jurisdictions around
`the country. First, governmental entities at the
`federal, state, and local level routinely fly the flags of
`other nations, often to honor a local community or a
`visiting dignitary. Many have adopted policies
`expressly stating that their flying of flags
`is
`government speech and authorizing flying the flags of
`other nations as one form of such speech. Second,
`governments routinely speak
`in recognition of
`important civic occasions like legal holidays and other
`widely-celebrated observances, often including flag-
`raisings in such speech. The record of such flag-
`raisings in Boston shows the inextricable linkage of
`flag-raisings to other forms of government speech such
`as speeches and proclamations.
`If practices like Boston’s, in which state and local
`governments collaborate with constituents in marking
`important occasions, amount to designating a public
`forum, then the inevitable result would be less speech.
`Because no government would tolerate the possibility
`of deeply offensive flags being flown on city-owned
`flagpoles over government property, a city found to
`have designated a public forum on its flagpoles would
`simply take steps to reduce expressive use of the
`flagpoles, perhaps by eliminating the flag-raising
`program or drastically scaling it back, thereby
`reducing speech. Instead, consistent with the careful
`review of the facts of this case by the courts below, this
`Court should confirm that flag-raising practices like
`Boston’s constitute government speech, and should
`affirm the court of appeals’ judgment.
`
`
`
`
`
`
`4
`
`
`
`ARGUMENT
`I. A robust government speech doctrine is
`essential for government to function.
`This Court has repeatedly recognized that allowing
`governments the latitude to speak on our own behalf
`“is important—indeed, essential.” Matal v. Tam, 137
`S. Ct. 1744, 1758 (2017). A governmental entity, this
`Court has explained, “has the right to speak for itself”
`and “is entitled to say what it wishes and to select the
`views that it wants to express.” Pleasant Grove City,
`Utah v. Summum, 555 U.S. 460, 467-68 (2009)
`(citations and internal quotation marks omitted).
`When a governmental entity does so, it is engaging in
`government speech, to which “the Free Speech Clause
`has no application.” Id. at 467.1
`interpreted
`“Were the Free Speech Clause
`otherwise, government would not work.” Walker v.
`Texas Div., Sons of Confederate Veterans, Inc., 576
`U.S. 200, 207 (2015). Governments are elected by
`their constituents
`in order to advance certain
`priorities—indeed, “‘[i]t is the very business of
`government to favor and disfavor points of view.’”
`Summum, 555 U.S. at 468
`(quoting National
`Endowment for the Arts v. Finley, 524 U.S. 569, 598
`(1998) (Scalia, J., concurring in the judgment)). Thus,
`as this Court has recognized, “it is not easy to imagine
`how government could function if it lacked this
`
`1 Other aspects of the First Amendment do apply to
`government speech, in particular, the Establishment Clause. See
`Summum, 555 U.S. at 468. Petitioners brought an unsuccessful
`Establishment Clause claim in the lower courts, Pet. App. 31a-
`38a, but they have abandoned it in this Court, see Pet. ii-iii.
`
`
`
`
`
`5
`
`
`freedom.” Summum, 555 U.S. at 468. “When a
`government entity embarks on a course of action, it
`necessarily takes a particular viewpoint and rejects
`others. The Free Speech Clause does not require
`government to maintain viewpoint neutrality when its
`officers and employees speak about that venture.”
`Matal, 137 S. Ct. at 1757.
`Nor are constituents without a remedy if they are
`dissatisfied with their government’s choices as to what
`to say and what not to. “[I]t is the democratic electoral
`process that first and foremost provides a check on
`government speech.” Walker, 576 U.S. at 207. “[A]
`government entity is ultimately ‘accountable to the
`electorate and the political process for its advocacy. If
`the citizenry objects, newly elected officials later could
`espouse some different or contrary position.’”
`Summum, 555 U.S. at 468-49 (quoting Board of
`Regents of Univ. of Wis. System v. Southworth, 529
`U.S. 217, 235 (2000)).
`Of particular importance to this case, this Court
`has recognized that “[t]he fact that private parties
`take part in the design and propagation of a message
`does not extinguish 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.
`To the contrary, “[a] government entity may exercise
`this same freedom to express its views when it receives
`assistance from private sources for the purpose of
`delivering
`a
`government-controlled message.”
`Summum, 555 U.S. at 468. And governmental
`officials and entities do this all the time, issuing
`proclamations at the behest of constituents, making
`speeches to interest groups, recording public service
`
`
`
`
`
`
`6
`
`
`cooperatively
`otherwise
`and
`announcements,
`engaging in speech with individuals and organizations
`whose accomplishments or interests the governmental
`entity chooses to support. See, e.g., Kentucky
`Governor Andy Beshear, Proclamations and
`Acclamations,
`governor.ky.gov,
`https://bit.ly/3pVQCPS (“Proclamations are provided
`by the Governor’s Office as a service to Kentucky
`residents with the goal of honoring and celebrating
`events or increasing awareness of noteworthy issues
`among
`citizens across Kentucky.”); Office of
`[Massachusetts] Governor Charlie Baker and Lt. Gov.
`Karyn Polito, Request a Proclamation from Governor
`Baker, mass.gov, https://bit.ly/3ET1HYo (“Governor
`Baker issues ceremonial proclamations to honor,
`celebrate, or raise public awareness about issues and
`causes that constituents of Massachusetts value.”).2
`Amici States recognize that the government speech
`doctrine must not extend beyond those instances in
`which it truly is the government itself speaking, lest
`private speech be improperly stifled. See, e.g., Matal,
`137 S. Ct. at 1758 (noting that, “[i]f private speech
`could be passed off as government speech by simply
`affixing a government seal of approval, government
`could silence or muffle the expression of disfavored
`viewpoints”). But when governments do speak, it is
`important that their speech be recognized as theirs,
`lest private actors be
`improperly allowed
`to
`commandeer government property into a means of
`expressing their own private views. And, as this Court
`has observed, “[t]here may be situations in which it is
`
`2 All hyperlinks in this brief were last visited on December
`21, 2021.
`
`
`
`
`
`
`7
`
`
`difficult to tell whether a government entity is
`speaking on its own behalf or is providing a forum for
`private speech.” Summum, 555 U.S. at 470.
`To make that determination in this case, the
`district court denied the City’s motion for judgment on
`the pleadings, Pet. App. 91a-95a, instead allowing the
`parties to engage in discovery. Upon careful review of
`the full record thereby developed, both the district
`court and the court of appeals held that the flying of
`flags over Boston’s City Hall Plaza falls comfortably
`on the government speech side of the line. Pet. App.
`13a-31a, 48a-55a. As explained below, this conclusion
`is consistent with amici States’ understanding,
`practices, and experience.
`II. A reasonable observer would normally
`attribute to the government the speech
`associated with a flag flying over
`government property.
`A key portion of the government speech analysis is
`whether a reasonable observer would likely attribute
`the speech in question to the government. See, e.g.,
`Walker, 576 U.S. at 212; Summum, 555 U.S. at 471.
`In this case, the court of appeals “found it likely” that
`“an observer would attribute the message of a third-
`party flag on the City’s third flagpole to the City.” Pet.
`App. 17a. Both the nature of flags flying on
`government property, and the manner in which local
`residents react to such displays, confirm that the court
`of appeals’ conclusion was correct.
`
`
`
`
`
`
`
`
`8
`
`A. Flags are a uniquely potent form of
`government speech.
`The court of appeals correctly noted that
`“governments have used flags throughout history to
`communicate messages and ideas,” and described it as
`“indisputable” that “a government flies a flag as a
`‘symbolic act’ and signal of a greater message to the
`public.” Pet. App. 17a. If anything, the court of
`appeals understated the centrality of
`flags to
`government speech throughout the years.
`For example, on April 19, 1775, the American War
`for Independence began with the raising of the
`Colonial Militia’s flag on the North Bridge in Concord,
`Massachusetts, a flag-raising that “served to unify the
`Thirteen Colonies at home, while obtaining
`recognition of national sovereignty abroad.” Texas v.
`Johnson, 491 U.S. 397, 422 (1989) (Rehnquist, C.J.,
`dissenting). Nearly a century later, in 1861, the
`“lowering of the American flag at Fort Sumter was
`viewed as the start of the [Civil War].” Id. at 423.
`Throughout history, governments have raised flags
`at government buildings to communicate important
`messages to the public. On December 25, 1991, the
`lowering of the Soviet flag that flew atop the Kremlin
`and its replacement with the Russian flag powerfully
`communicated to Russian citizens and to the
`international community that the Soviet Union, and
`Communism in the region, were no longer. See
`Francis X. Clines, End of the Soviet Union; Gorbachev,
`Last Soviet Leader, Resigns; U.S. Recognizes
`Republics’ Independence, N.Y. Times (Dec. 26, 1991),
`https://nyti.ms/3mKl0MD. In the waning days of the
`
`
`
`
`
`
`9
`
`
`Soviet Union, “the huge red union flag atop the
`Kremlin’s domed Council of Ministers building had
`waved mainly as a symbol of [Mikhail] Gorbachev’s
`holdout resistance to the commonwealth.” Id. On
`December 25, 1991, following Mr. Gorbachev’s formal
`resignation and final address, Russians watched as
`the Soviet flag atop the Kremlin in Moscow was
`lowered and, minutes later, the Russian flag was
`raised, marking the beginning of the new Russia. See
`James F. Clarity, End of the Soviet Union; On
`Moscow’s Streets, Worry and Regret, N.Y. Times (Dec.
`26, 1991), https://nyti.ms/3qjcViC. And more recently,
`the international community watched as the Taliban
`raised its flag over the Afghan presidential palace in
`Kabul, marking the “official start of the work of the
`[Taliban’s] new government.” Kathy Gannon, Taliban
`flag rises over seat of power on fateful anniversary, AP
`News (Sept. 11, 2021), https://bit.ly/3m3AbQm.
`The precise manner in which a government
`displays a flag (or does not do so) can send messages
`as well. It is of course common practice for the
`American flag to “be flown at half-staff upon the death
`of principal figures of the United States Government
`and the Governor of a State, territory, or possession,
`as a mark of respect to their memory.” 4 U.S.C. § 7(m).
`States, too, have adopted detailed protocols regarding
`the flying of American and state flags, including how
`and when they should be flown at half-staff. See, e.g.,
`Executive Office of the Governor [of Florida], Flag
`Protocol,
`flgov.com
`(Sept.
`26,
`2012),
`https://bit.ly/3pTbqI0.
` Similarly,
`in the United
`Kingdom, the Sovereign’s Royal Standard is used to
`communicate precise messages to the public, including
`the location of the Sovereign. Royal Standard,
`
`
`
`
`
`
`10
`
`
`royal.uk, https://bit.ly/3pVUIHK. And in 1997, the
`royal family’s refusal to fly the Royal Standard at half-
`staff at Buckingham Palace to honor Diana, Princess
`of Wales, after her death generated widespread
`controversy. See Margaret Lowrie, Royal family hurt
`by criticism over Diana, cnn.com (Sept. 4, 1997),
`https://cnn.it/3IMkJ4X.
`These are but a few of the many examples of the
`unique role that flags play in government speech. As
`they demonstrate, governments routinely use flags to
`communicate messages of triumph, messages of
`defeat, and messages of solidarity to our citizens and
`to the world at large.
`
`B. Flag displays on government property
`generate controversy precisely because
`local residents reasonably attribute
`them to the government.
`Around the country, flags flying on government
`property have generated considerable controversy in
`recent years. They have done so precisely because the
`messages such flags represent are routinely attributed
`to the government itself.
`Examples of this phenomenon have arisen out of
`the very policy at issue in this case. In late September
`of 2020, the City of Boston flew China’s flag over City
`Hall Plaza, as it had done on at least eleven occasions
`in the late September/early October timeframe in
`years past.3 See Pet. App. 174a-187a. According to
`
`3 These flag-raisings appear to coincide with “National Day,”
`a Chinese public holiday commemorating the establishment of
`
`
`
`
`
`
`
`11
`
`
`news reports, “[p]rotesters criticized Boston Mayor
`Martin Walsh … for flying the Chinese flag in front of
`City Hall, saying the city shouldn’t be honoring a
`country with as many civil rights issues as China has.”
`Sean Philip Cotter, Protesters slam Marty Walsh for
`flying Chinese flag at Boston City Hall, Bos. Herald
`(Sept. 29, 2020), https://bit.ly/3ERsQe1 (emphasis
`added). The article further reports that the protesters
`sought to hold the City’s Mayor himself accountable
`for the message they attributed to the flag, chanting,
`“Mayor Walsh, stand up for human rights.” Id.
`Similarly, about one year earlier, petitioner Camp
`Constitution apparently posted a video to its YouTube
`channel of a similar flag-raising, also at Boston City
`Hall Plaza, in which a protester can be seen holding a
`sign reading “Marty [Walsh] Honors Concentration
`Camps.” Camp Constitution, Communist China Flag
`Raising at Boston’s City Hall Plaza, youtube.com, at
`1:26-1:30
`(Sept.
`29,
`2019),
`https://youtu.be/HDFlm8K60xM.
`It is thus unnecessary for lawyers to imagine how
`a hypothetical observer would interpret another
`country’s flag flying over Boston’s City Hall Plaza, see,
`e.g., Pet. Br. 56-57; U.S. Br. 18-19; ACLU Br. 14-15,
`because we know how real observers have reacted.4
`
`the People’s Republic of China on October 1, 1949. See Editors of
`Encyclopaedia Britannica, National Day (Chinese holiday),
`britannica.com (rev. Aug. 1, 2021), https://bit.ly/3si1hao.
`4 In a similar case further discussed infra at 12-14, the court
`noted that passers-by saw a flag flying over city-owned property
`whose message they disliked, and they called the city to express
`their displeasure. As the court explained, “[t]hat actual
`observers called the City to complain about the flag, if true, would
`
`
`
`
`
`
`
`12
`
`
`These protesters interpreted the Chinese flag flying
`over City Hall Plaza as the City of Boston “honoring”
`China, took umbrage at the City’s doing so, and looked
`to then-Mayor Walsh to stop it. To these protesters, it
`was clear that the Chinese flag flying over City Hall
`Plaza was the City of Boston’s government speech, not
`the speech of some private party utilizing a public
`forum.5
`A factually similar case from New York further
`supports the proposition that a reasonable observer
`would normally attribute flags flying over government
`property to the government. In United Veterans
`Memorial and Patriotic Ass’n of the City of New
`Rochelle v. City of New Rochelle, 72 F. Supp. 3d 468
`(S.D.N.Y. 2014), aff’d, 615 Fed. App’x 693 (2d Cir.
`2015) (per curiam), a veterans’ group had been
`
`demonstrate that reasonable observers attributed the flag’s
`message to the government.” United Veterans Mem’l & Patriotic
`Ass’n of the City of New Rochelle v. City of New Rochelle, 72 F.
`Supp. 3d 468, 475 n.4 (S.D.N.Y. 2014) (emphasis in original),
`aff’d, 615 Fed. App’x 693 (2d Cir. 2015) (per curiam).
`5 Relatedly, in 2010, it appears that petitioner Harold
`Shurtleff expressed in a letter to a local newspaper his
`indignation at seeing the Chinese flag flying over Boston’s City
`Hall Plaza. See Hal Shurtleff, Letter to the Editor, Chinese flag
`raising ‘slap in the face to the city’, wickedlocal.com (Sept. 30,
`2010, 11:06 p.m.), https://bit.ly/3Ee5f6d. In his letter regarding
`the flag-raising that occurred on September 25, 2010, see id.; see
`also Pet. App. 182a, Shurtleff noted that a Boston City Councilor
`and a Massachusetts State Representative were present at the
`event, and stated that he “was ashamed of Boston,” declaring
`that “[w]hat was once the Cradle of Liberty is now a Cradle of
`Oppression.” Id. If Shurtleff had understood the flag-raising to
`be purely private speech taking place on a flagpole that was a
`designated public forum open to everyone, it is unclear why he
`would have been “ashamed of Boston.”
`
`
`
`
`
`13
`
`
`delegated control of city-owned flagpoles located on
`the grounds of a city-owned armory, and had
`“exercised responsibility for the flags for sixteen years
`without interference by the City.” Id. at 471, 476.
`However, when the group hoisted the so-called
`“Gadsden Flag,” city officials received numerous
`complaints about it and, following a vote of the city
`council, had it removed. Id. at 471-72.
`Rejecting the group’s First Amendment claim, the
`district court gave several reasons—equally applicable
`here—why it was “not plausible that a reasonable
`observer would consider the Gadsden Flag flying at
`the Armory to be private speech, and it is obvious that
`the flag would be regarded as government speech.” Id.
`at 474. First, “flags, like monuments, are reasonably
`interpreted ‘as conveying [a] message on the property
`owner’s behalf,’” and, “[l]ike most public parks,” the
`Armory (like Boston’s City Hall Plaza) was “‘closely
`identified in the public mind with the government unit
`that owns the land[.]’” Id. at 474-75 (quoting
`Summum, 555 U.S. at 471-72; other citations
`omitted).6 Second, the veterans’ group’s sixteen years
`of control over the flagpoles without the city’s
`involvement had little relevance, because “[t]hat the
`City never had occasion to speak up until now does not
`plausibly suggest indifference to the message sent on
`the flagpole; one can easily imagine the reaction if
`Plaintiffs had flown a pro-choice or anti-marriage-
`equality or other politically fraught banner.” Id. at
`
`6 The Second Circuit’s summary affirmance noted in
`particular that “the flagpole was located in a public space used
`for park and recreation purposes, and a reasonable observer
`would think the flags were presenting a message from the City.”
`615 Fed. App’x at 694.
`
`
`
`
`
`
`14
`
`
`476 n.8. Similarly, here, the fact that the City had not
`rejected a flag request until petitioners’ simply reflects
`the fact that the previous requests fell into categories
`consistent with the City’s own speech. See infra Part
`III; Pet. App. 29a (“That the City had not rejected prior
`requests is insufficient to conclude that the City
`accepts any and all flags because the record shows
`that the City had criteria for approval that limited
`flagpole access and that all flags flown satisfied those
`criteria.”).
`The United Veterans court’s prediction about
`reactions to “politically fraught banner[s],” 72 F. Supp.
`3d at 476 n.8, was prescient. In recent years, towns
`and cities across America have faced—and responded
`to—public criticism related to certain flags being
`flown (or not flown) on municipal property precisely
`because such flags are understood to represent the
`views and priorities of the government. In Heber City,
`Utah, for example, the city council heard from citizens
`expressing both support for and opposition to the
`display of Pride banners on city lampposts—a display
`requested and financed by a private citizen and
`approved by the city. See David Boyle, Pride B
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