The blurred lines of government speech and private expression

It is well-known and commonly understood that the First Amendment’s Free Speech Clause limits government regulation of private speech, it does not regulate government speech. See US Const. amend. I. The government has the right to disseminate its own messages and even take its own viewpoints. See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467-69 (2009), whereby the Supreme Court held a government entity has the right to speak for itself, may say what it wants, and select the views that it wants to express but such right is not unrestricted. Government speech seems like a relatively simple doctrine, and yet its simplicity can be deceiving, especially in the context of some of today’s hot-button issues.

Recently, the United States Supreme Court (“Supreme Court”) held that the City of Boston (“City”) did not engage in government speech when it let groups raise a flag of their choosing on a City flagpole outside of City Hall during community events. In Shurtleff v. City of Boston Massachusetts, 142 S. Ct. (2022), the Supreme Court held that allowing private groups to use flagpoles on public property was not government speech. The Court reasoned that Boston’s city government had no meaningful involvement in selecting the flags or crafting their message. As a result, the city could not refuse to fly certain flags based on viewpoint.

In Shurtleff, the City refused to allow a group called Camp Constitution to fly a Christian flag as part of an event commemorating the civic and social contributions of the Christian community in the City. For years, the City allowed private groups to request the use of its flagpole to raise flags of their choosing and in that time the City approved hundreds of requests to raise dozens of different flags. Id. at 1587

Harold Shurtleff, the director of Camp Constitution (“Shurtleff”) filed an application to use the City’s flagpole. The Commissioner of the City’s Property Management Department denied Shurtleff’s application stating that the problem was not the content of the Christian flag, but the fact that it was called a Christian flag. Id. at 1588. As in most situations of this kind, the commissioner asserted a concern that flying a religious flag would violate the Constitution’s Establishment Clause. Shurtleff and Camp Constitution (“Petitioners”) filed suit, claiming the City’s refusal to let them raise their flag violated, among other things, the First Amendment Free Speech Clause. The District Court held that flying private groups’ flags from a City flagpole amounted to government speech. The First Circuit affirmed. The Supreme Court granted certiorari to decide whether the flags the City allowed constituted government speech and whether the City could, consistent with the Free Speech Clause, deny Petitioners’ application.

Although the Court unanimously ruled in favor of the Petitioners, it split six-three on the proper test to determine whether the expression constituted government speech. Writing for the Supreme Court, Justice Stephen Breyer stated, “The boundary between government speech and private expression can blur when, as here, a government invites the people to participate in a program. In those situations, when does government-public engagement transmit the government’s own message? And when does it instead create a forum for the expression of private speakers’ views?” Id. at 1589.

Justice Breyer applied a three-part test to determine whether the expression constituted government speech. The three-part test includes: (1) examining the speech’s history, (2) the public’s likely perception about who was speaking, and (3) the extent of government control of the speech.

Justice Breyer concluded that “while the historical practice of flag flying at government buildings favors Boston, the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech.” Id. at 1593.

In a concurring opinion, Justice Samuel Alito disagreed, arguing that the three-part test utilized by Justice Breyer “obscures the real question in government-speech cases: whether the government is speaking instead of regulating private expression.” Id. at 1595. He proposed an alternative test that would look at whether the speech involved purposeful community of a government message by a person acting within his or her powers to speak for the government and a requirement that the government establish that it had not abridged the speech of persons acting in a private capacity.

Justice Brett Kavanaugh in his concurring opinion sought to emphasize that “a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like… On the contrary, a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like.” Id. at 1594.

It is difficult to imagine how the government could function without the ability to have its own speech. “If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed.” Supra at 468. It is easy to think about the grand application of the First Amendment and all the privileges it includes without necessarily thinking about how it intersects with government speech. If anything it has become abundantly clear that lines between government speech and regulation of private expression are at times blurred.