USA and 12 States Support LC in Free Speech Case

Nov 24, 2021

WASHINGTON, D.C. — Liberty Counsel has received broad-based support for its Harold Shurtleff v. City of Boston free speech case before the Supreme Court. Multiple amicus briefs have been filed in support from the United States of America, 12 states and a wide range of organizations, even the American Civil Liberties Union of Massachusetts. Seventeen amicus briefs from very diverse groups have been filed in support of Liberty Counsel’s case.

Liberty Counsel filed a lawsuit on behalf of Boston resident Hal Shurtleff and his Christian civic organization, Camp Constitution, arguing that the city violated the First Amendment by censoring a private flag in a public forum merely because the application form referred to the flag as a “Christian flag.” Boston censored the religious viewpoint of Camp Constitution’s flag, which was to be raised for about an hour during the week of September 17 in observance of Constitution Day and Citizenship Day. The flag was part of a ceremony to honor the Constitution and recognize the contributions of Judeo-Christian heritage and the Christian history of the Founders and the communities in Boston and the Commonwealth of Massachusetts.

Boston had never censored any private flag until Camp Constitution’s application. For 12 years, Boston approved 284 applications with no denials—until the 2017 application by Camp Constitution. The city official testified the flag would have been approved if the application did not refer to it as a “Christian flag.” The word “Christian” on the application alone triggered the censorship.

The city’s policy stated that one of the flagpoles was a “public forum” open to “all applicants.” Other flags raised on the city’s flagpole include the flags of foreign countries, including Turkey (which depicts the Islamic star and crescent), Communist China (established under the rule of communist revolutionary Chairman Mao Zedong), Cuba, the rainbow flag of Boston Pride, a “transgender” pink and blue flag and many more.

On November 15, Liberty Counsel filed its opening brief in the case at the U.S. Supreme Court regarding Boston’s censorship of the Christian viewpoint. Liberty Counsel will present oral argument at the High Court on January 18 with a decision expected by June 2022.

The brief from the USA urges the Supreme Court to rule in favor of Camp Constitution.

“Under this Court’s precedents and based on the record in this case, the City’s flag-raising program is not government speech, but instead a forum for private speech. The Court should therefore reverse the decision. … In so doing, however, the Court should re-affirm that the First Amendment affords the City and other governments ample latitude to craft expressive programs—including programs involving contributions from private parties—without relinquishing their right to control the message or exclude other private speakers.”

Eleven states joined together urging the Supreme Court to rule in favor of Camp Constitution’s free speech, which Boston violated. The brief states: “This is a case about religious discrimination masquerading as government speech. … Here, the religious discrimination hides behind the banner of government speech. And so this case raises different questions than those before it. But the root problem is the same. The Court should reverse the decision below.” The brief goes on to say: “It would be a mistake to resolve the free-speech question presented here without a broader understanding of the root problem—a growing hostility toward religion across the Nation.”

A brief the ACLU filed said “the City generally opened its flagpole to flag displays by private speakers. Having done so, it was bound by the same principles that apply in traditional public forums, including the prohibition on viewpoint discrimination. Thus, the fact that the City excluded a speaker with a religious viewpoint does not (as the First Circuit reasoned) show that the City did not open a public forum at all. Instead, it shows the City denied access to a public forum on the basis of viewpoint, which is constitutionally verboten.”

A brief from the Jones Day law firm filed in support of the Camp Constitution case takes Boston to task over animus to religion.

“The City’s attempts to justify its behavior go nowhere, and indeed only illustrate the City’s religious hostility. For example, the City argues that treating the flag pole as a public forum would lead to a ‘cacophony’ of conflicting viewpoints. But it never expressed any such concerns before when it displayed a bewildering array of flags representing a medley of controversial political and social causes, which shared nothing in common other than the lack of any Christian message. Only when a single Christian note was played did the melody begin to sound ‘cacophonous’ to the City. That is animus, pure and simple.”

The First Circuit Court of Appeals sided twice with the city of Boston finding that the flags were government speech, not private speech. The court wrongly accepted the city’s argument that the Establishment Clause justified its censorship. However, (1) the application form designates the flagpole as a “public forum” open for private speech; (2) the city never censored any of the 284 flag applications in the 12 years prior to Camp Constitution’s application; (3) the city approved 39 flags (averaging over three per month) in the year prior to Camp Constitution’s application; and (4) the flags of the foreign countries could not be government speech because under state law, it is a crime to raise the flag of a foreign country on city property.

Liberty Counsel’s Founder and Chairman Mat Staver said: “This important First Amendment case will set national precedent regarding the issue of government versus private speech. It is indisputable that Boston denied the private flag raising solely because the application used the word ‘Christian’ before the word ‘flag.’ After 12 years with no denials, this one word led to the first censorship of a private flag raising application. The City of Boston’s reaction to the word ‘Christian’ reveals the religious hostility behind the decision to deny the application. Of all places, this censorship of a Christian viewpoint occurred in Boston—the cradle of liberty. Religious viewpoints must not be excluded from the public square.”

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