Shurtleff v. Boston (20-1800)
argument 20-1800Shurtleff v. Boston
Supreme Court of the United States
1h 22m
8 speakers
8 chapters
transcribed 5 days ago
official recording ↗
Transcript
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Transcript generated automatically by AI and may contain errors.
What is the central dispute over the Boston flag‑raising program?
We'll hear argument first this morning in case number 20-1800, Shurtleff v. Boston, Massachusetts. Mr. Staver.
Mr. Chief Justice, and may it please the Court, after 12 years with 284 flag-raising approvals, no denials and usually no review, one word caught the attention of a Boston official, the word Christian on the application. The flag itself was not the problem. Had it been called anything but Christian, the same flag would have flown for an hour without incident. The policy does not limit the flagpoles to subject matters or speakers. All applicants are welcome, except religious viewpoints. The 2018 codification places religion in the same category as speech deemed inappropriate, offensive, supporting prejudice, or discrimination. To support its admitted viewpoint discrimination, the city raises one defense, that the public forum open for all applicants is really government speech.
This court warned in Mattal that the government speech doctrine is susceptible to dangerous misuse. This is such a case. The city's flag-raising forum is not government speech under Walker and Sumum. The city, by an unbroken history and practice in policy, expressly declared that the flagpoles are one of its public forums open to all applicants. In doing so, the city long ago crossed the line from government speech to private speech. A reasonable observer would understand this history and the policy. This observer would also see a private event coinciding with a temporary flag-raising event. The city exercised no control over the message, the design, and did not own the flags. The city never requested flags or messages to be changed and usually did not review them.
The city's application alone cannot transform private speech into government speech. In light of the practice and policy, the decision below upholding viewpoint discrimination under the guise of government speech is dangerous and should be reversed. I welcome the Court's questions.
Mr. Staver, you begin your brief by arguing that this is a limited public forum or a designated public forum. And do we have to agree with that in order for you to win?
No, Your Honor. Chief Justice Thomas, this is viewpoint discrimination under any one of the public forum doctrine, even in a non-public forum. If this is it, it's clearly viewpoint discrimination. So this Court does not need to address the category or the kind of public forum at issue. Viewpoint discrimination is impermissible in every category.
Well, that can't be right, because if it's a governmental forum, this is government speech, they can certainly discriminate on the basis of viewpoint, right?
That's correct, if it's government speech. But this is not government speech. It's nothing like Walker, which is the outer bounds of the government speech doctrine. It's nothing like Summa. The city exercised no control. For 12 years, the city ministerially approved all of these applications with virtually no review.
The policy that they adopted in the middle of this, I guess, saying that they won't fly flags supporting discrimination, prejudice, or religious movements. What if it just said supporting discrimination or prejudice? Could they do that?
I think that would still be viewpoint discrimination. Offense, for example, which that would be what it is, is in fact viewpoint discrimination, as this Court has already held in the bill. Well, they
can't have an official view against discrimination or against prejudice.
They have a view in terms of whether or not the public is allowed to attend a particular event, but this particular policy not only covers the flagpoles, but it also covers the public forums that are out there in front of City Hall, the designated public forums that are clearly admitted. The city could not prohibit discrimination or discriminatory speech within those designated public forums. For 12 years, you had a unified policy.
Mr. Staver, just to follow up on the Chief Justice's question, and this is not this case, but it's an important question because we have to set lines and we're giving instruction to cities about how they can
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Chapters
8 chapters
1
What is the central dispute over the Boston flag‑raising program?
0:00–10:44
2
How do the parties argue whether the flagpole is a public forum or government speech?
10:44–19:57
3
Why is the case framed as viewpoint discrimination rather than a forum issue?
19:57–32:04
4
What factual record do the justices focus on when assessing control over the flagpole?
32:04–41:23
5
How does the Court evaluate the “control” factor in determining who is speaking?
41:23–51:24
6
What hypothetical scenarios do the Justices use to test the limits of the program?
51:24–1:02:30
7
How does the city’s policy and its implementation affect the legal analysis?
1:02:30–1:13:07
8
What are the parties’ final arguments and the implications for future flag‑raising policies?
1:13:07–1:22:55