Amicus Curiae Brief — Harold Shurtleff, et al., Petitioners v. City of Boston, Massachusetts, et al.

Supreme Court briefNov 22, 2021

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NO. 20-1800

IN THE

Supreme Court of the United States

HAROLD SHURTLEFF, et al.,

Petitioners,

CITY OF BOSTON, et al.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the First Circuit

BRIEF OF BRONX HOUSEHOLD OF FAITH

AS AMICUS CURIAE IN SUPPORT

OF PETITIONERS

JOHN J. BURSCH

JORDAN W. LORENCE

JACOB P. WARNER

ALLIANCE DEFENDING

FREEDOM

440 First Street, N.W.

Suite 600

Washington, D.C. 20001

(202) 393-8690

ANDREW M. GROSSMAN

Counsel of Record

JENNA M. LORENCE

BAKER & HOSTETLER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 861-1697

agrossman@bakerlaw.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT .............................................................. 4

The First Amendment Forbids

Government from Excluding Religious

Speech and Speakers from Forums It

Creates ................................................................. 4

II. Several Courts—Including the Court

Below—Mistakenly Allow the Government

To Evade This Constitutional Protection

by Banning All Religious Speech from Its

Forums ................................................................. 6

A. Three Circuits Allow the Government

To Use Restrictions on Religious

Speech to Avoid Creating a

Designated Public Forum ............................. 6

B. The First Circuit Similarly Allowed

the Government’s Speech Restriction

To Transform a Public Forum into

Government Speech ...................................... 9

C. Other Circuits Have Correctly Applied

This Court’s Precedents to Protect

Religious Speech in a Public Forum ........... 12

III. The Court Should Reaffirm that Excluding

Only Religious Speech Does Not

Transform a Public Forum Into a Limited

Forum or Government Speech .......................... 13

CONCLUSION ......................................................... 18

TABLE OF AUTHORITIES

Cases:

Archdiocese of Wash. v. Wash. Metro. Area

Transit Auth.,

140 S. Ct. 1198 (2020)............................ 5–6, 9, 17

Archdiocese of Wash. v. Wash. Metro. Area

Transit Auth.,

897 F.3d 314 (D.C. Cir. 2018) .......................... 8–9

Bronx Household of Faith v. Bd. of Educ. of the

City of New York,

331 F.3d 342 (2d Cir. 2003) ................................. 8

Bronx Household of Faith v. Bd. of Educ.,

492 F.3d 89 (2d Cir. 2007) ................................... 1

Bronx Household of Faith v. Bd. of Educ.,

650 F.3d 30 (2d Cir. 2011) ....................... 1, 2, 6–7

Bronx Household of Faith v. Cmty. Sch.

Dist. No. 10,

127 F.3d 207 (2d Cir. 1997) ..................... 1, 2–3, 7

Campbell v. St. Tammany’s Sch. Bd.,

206 F.3d 482 (5th Cir. 2000) ............................. 14

Capitol Square Rev. & Advisory Bd. v. Pinette,

515 U.S. 753 (1995).............................................. 3

Concerned Women for America v. Lafayette Cnty.,

883 F.2d 32 (5th Cir. 1989) ............................... 13

Cornelius v. NAACP Legal Def. & Educ.

Fund, Inc.,

473 U.S. 788 (1985)........................................ 5, 11

Espinoza v. Mont. Dep’t of Revenue,

140 S. Ct. 2246 (2020)........................................ 16

iii

Faith Ctr. Church Evangelistic Ministries v.

Glover,

462 F.3d 1194 (9th Cir. 2006) ......................... 7–8

Good News Club v. Milford Cent. Sch. Dist.,

533 U.S. 98 (2001)...................................... passim

Gregoire v. Centennial Sch. Dist.,

907 F.2d 1366 (3d Cir. 1990) ....................... 12, 13

Heffron v. Int’l Soc’y for Krishna Consciousness,

452 U.S. 640 (1981)............................................ 15

Int’l Soc’y for Krishna Consciousness, Inc. v. Lee,

505 U.S. 672 (1992)............................................ 11

Matal v. Tam,

137 S. Ct. 1744 (2017)............................ 11, 14, 16

Niemtko v. Maryland,

340 U.S. 268 (1951)............................................ 15

Perry Educ. Ass’n v. Perry Loc. Educators Ass’n,

460 U.S. 37 (1983)................................ 4–5, 15, 17

Pleasant Grove City v. Summum,

555 U.S. 460 (2009).................................... passim

Police Dep’t of Chi. v. Mosley,

408 U.S. 92 (1972)................................................ 4

Reed v. Town of Gilbert,

576 U.S. 155 (2015)...................................... 14, 16

Rosenberger v. Rector & the Visitors of the

Univ. of Va.,

515 U.S. 819 (1995).............................. 5, 9, 15–16

Rust v. Sullivan,

500 U.S. 173 (1991)............................................ 10

Saia v. New York,

334 U.S. 558 (1948)............................................ 15

Shurtleff v. City of Boston,

986 F.3d 78 (2021) ................................... 3, 11–12

Sons of Confederate Veterans, Va. Div. v.

City of Lexington,

722 F.3d 224 (4th Cir. 2013) ............................. 17

Trinity Lutheran Church v. Comer,

137 S. Ct. 2012 (2017)........................................ 16

Walker v. Tex. Div., Sons of Confederate

Veterans, Inc.,

576 U.S. 200 (2015)............................................ 10

Widmar v. Vincent,

454 U.S. 263 (1981).................................... passim

INTEREST OF AMICUS CURIAE 1

Bronx Household of Faith is an evangelical Christian church formed in 1972 to serve University

Heights, one of the lowest-income neighborhoods in

the Bronx. When it applied to conduct Sunday services in public school facilities generally available for

use by community group during non-school hours, the

New York City Board of Education denied the requests, declaring its facilities closed to use for “worship.” The Second Circuit rejected Bronx Household’s

claim that this blanket exclusion infringed on its First

Amendment speech rights, reasoning that the Board

had established only a limited public forum because it

had not previously authorized the use of school facilities for religious services. Bronx Household of Faith v.

Cmty. Sch. Dist. No. 10, 127 F.3d 207, 213 (2d Cir.

1997); Bronx Household of Faith v. Bd. of Educ., 492

F.3d 89, 97–98 (2d Cir. 2007); Bronx Household of

Faith v. Bd. of Educ., 650 F.3d 30, 36 (2d Cir. 2011).

Accordingly, Bronx Household has a significant interest in the development of public-forum doctrine and

policing the government’s exclusion of religious

speech from forums otherwise generally open to public speech.

1 No counsel for a party authored this brief in whole or in part,

and no person other than amicus and its counsel made any monetary contribution intended to fund the preparation or submission of this brief. All parties consented to the filing of this brief

through blanket consent letters filed on the Court’s docket.

SUMMARY OF THE ARGUMENT

This case does not require the Court to break new

ground in its public-forum jurisprudence, nor does it

require the Court to redefine or reimagine government speech. Rather, it provides a sound vehicle for

the Court to repudiate the circular logic embraced by

several lower courts to justify excluding religious

speech from public forums.

There is no question that “religious worship and

discussion” are types of speech protected by the First

Amendment. But when governments open public

property to an endless array of private speakers, they

often prescribe a single exception: no religious speech.

This Court has consistently rejected such policies, regarding them either as content-based restrictions failing strict scrutiny, e.g., Widmar v. Vincent, 454 U.S.

263 (1981), or as forbidden viewpoint discrimination,

e.g., Good News Club v. Milford Cent. Sch. Dist., 533

U.S. 98 (2001).

But some courts have approved a workaround to

avoid that result. Instead of examining policy and

practice to determine whether the government has established a public forum that cannot exclude religious

speech, they hold that the exclusion of religious

speech itself proves the limited nature of the forum.

See, e.g., Bronx Household of Faith v. Bd. of Educ.

(“Bronx III”), 650 F.3d 30 (2d Cir. 2011). This is a tautology: the government has created a limited public

forum because it excludes religious speech from the

forum, and it may therefore exclude religious speech

from the forum because the forum is limited. Under

this flawed approach, religious speech may always be

excluded to serve the forum’s anything-goes-but-religion “purpose.” See, e.g., Bronx Household v. Cmty.

Sch. Dist. No. 10 (“Bronx I”), 127 F.3d 207, 213 (2d

Cir. 1997).

The court below adopted a variation on that approach. It reasoned that the City of Boston’s exclusion

of a religious flag from its otherwise wide-open flagpole program meant that the City had not created a

public forum at all because it evidenced the City’s

“control” over use of the flagpole. Shurtleff v. City of

Boston, 986 F.3d 78, 91 (2021). In this way, the court

regarded the City’s religious-speech bar as justification for exempting that bar from First Amendment

scrutiny altogether. The problem with this circular

logic is clear: it immunizes governments’ discrimination against religion from First Amendment scrutiny.

“Government suppression of speech has so commonly

been directed precisely at religious speech that a freespeech clause without religion would be Hamlet without the prince.” Capitol Square Rev. & Advisory Bd.

v. Pinette, 515 U.S. 753, 760 (1995). But the court below, like others before, missed this point entirely. Its

plain misapplication of the Court’s precedents requires correction.

The Court should take this opportunity to reassert the analytical framework it has prescribed for

evaluating claims that government has wrongfully

excluded speech from a public forum in violation of

the First Amendment. Specifically, the Court should

clarify that courts must look at what is allowed in the

forum—not what is excluded—to determine whether

the government has established a public forum from

which religious speech may not be excluded. The government’s wholesale exclusion of religious speech cannot circularly justify itself because it does not establish that a forum is limited or that the government

has established no forum at all.

ARGUMENT

The First Amendment Forbids Government

from Excluding Religious Speech and

Speakers from Forums It Creates

“[T]he government does not have a free hand to

regulate private speech on government property.”

Pleasant Grove City v. Summum, 555 U.S. 460, 469

(2009). But the level of protection for free speech varies depending on the type of “forum” where the speech

takes place.

The Court explained its modern forum doctrine in

Perry Education Ass’n v. Perry Local Educators Ass’n,

460 U.S. 37 (1983). The first type of forum, the “traditional public forum,” includes spaces that “have immemorially been held in trust for the use of the public

and…have been used for purposes of assembly, communicating thoughts between citizens, and discussing

public questions,” such as parks and sidewalks. Id. at

45 (citation omitted). The government may also open,

or designate, public property “for use by the public as

a place for expressive activity.” Id. Even though the

government “is not required to indefinitely retain the

open character of the facility, as long as it does so it is

bound by the same standards as apply in a traditional

public forum.” Id. at 46. Or, in other words, “[o]nce a

forum is opened up to assembly or speaking by some

groups, the government may not prohibit others from

assembling or speaking on the basis of what they intend to say.” Police Dep’t of Chi. v. Mosley, 408 U.S.

92, 96 (1972).

Restrictions on speech in a traditional or designated public forum must satisfy strict scrutiny. Perry,

460 U.S. at 46. The government, in turn, has greater

license to restrict speech in spaces that it maintains

for particular purposes, which are regarded for First

Amendment purposes as limited public forums or

nonpublic forums. Id. And, of course, in some instance

that government does not open a forum at all but instead “speak[s] on its own behalf.” Summum, 555 U.S.

at 470.

To determine whether the government has established a forum and, if so, what type, a court must consider the “policy and practice” of the government, the

nature of the property, its compatibility with expressive activity, and whether the forum was designed

and dedicated to expressive activities. Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788,

802–83 (1985). This inquiry turns on what speech the

government has deigned to allow in a given place or

context; only after determining what kind of forum

the government has so established does a court then

address whether the challenged speech-exclusion

passes First Amendment muster. See, e.g., id. at 805–

06 (allowed speech to accomplish the government’s

business as an employer); Rosenberger v. Rector & the

Visitors of the Univ. of Va., 515 U.S. 819, 824 (1995)

(allowed speech “related to the educational purpose of

the University”).

Applying this approach, the Court’s decisions reject government policies that exclude religious speech

from otherwise open forums, even limited ones. See,

e.g., Good News Club v. Milford Cent. Sch. Dist., 533

U.S. 98 (2001); Rosenberger, 515 U.S. at 845; Lamb’s

Chapel v. Center Moriches Union Free Sch. Dist., 508

U.S. 384 (1993); Widmar v. Vincent, 454 U.S. 263

(1981); see also Archdiocese of Wash. v. Wash. Metro.

Area Transit Auth., 140 S. Ct. 1198, 1199 (2020) (Gorsuch, J., statement respecting denial of certiorari)

(“bann[ing] religion as a subject” runs afoul of the

First Amendment). And the Court has also recognized

that such an exclusion is, in almost all cases, impermissible viewpoint discrimination. See, e.g., Good

News Club, 533 U.S. at 111–12.

II. Several Courts—Including the Court

Below—Mistakenly Allow the Government

To Evade This Constitutional Protection by

Banning All Religious Speech from Its

Forums

Despite this Court’s simple framework for how

courts should assess speech restrictions in asserted

public forums, some courts have adopted a backward

approach, analyzing the speech-restriction to set the

forum, at least where bans on religious speech are

concerned. In other words, these courts allow the government to define the forum based on the speech-restriction, ensuring the restriction will always justify

itself. The result is to exempt the wholesale exclusion

of religious speech from heightened scrutiny.

A. Three Circuits Allow the Government

To Use Restrictions on Religious Speech

to Avoid Creating a Designated Public

Forum

The Second Circuit in Bronx III, 650 F.3d at 30,

rubber-stamped a government policy excluding religious speech. The court decided that the restriction

proved that the school had created a limited forum. In

that case, the Board of Education of the City of New

York allowed groups hosting events “pertaining to the

welfare of the community” to rent empty school buildings when school was not in session. Id. at 33. But the

school barred groups from renting the school for “religious worship services.” Id. at 36. Bronx Household of

Faith, a local church, applied to rent an otherwise

empty public school building for a “Christian worship

service,” its regular Sunday morning meeting. The

school denied the application, citing its policy, and the

Second Circuit upheld this denial. Id. at 35, 51.

The Second Circuit declared that the public school

was “a limited public forum.” Id. at 36 (citing Bronx I,

127 F.3d at 211–14). But it justified this holding because the school had only allowed “certain speakers”

to rent the school in the past. Bronx I, 127 F.3d at 213.

The Court found it “important to note that the parties

ha[d] agreed that [the school] never has rented school

property for [worship or religious instruction].” Id. So

even though the school had opened its doors to hundreds of groups and events “pertaining to the welfare

of the community,” the fact that it had consistently

barred religious groups meant that the restriction itself transformed the forum from an open public forum

to a limited public forum.

The Ninth Circuit applied this same flawed approach in Faith Center Church Evangelistic Ministries v. Glover, 462 F.3d 1194 (9th Cir. 2006), opinion

amended and superseded on other grounds on denial

of reh’g., 480 F.3d 891 (2007). There, a non-profit religious corporation reserved several library meeting

rooms for “Prayer, Praise, and Worship Open to the

Public.” Id. at 1199. After the group held one meeting,

the library cancelled the group’s subsequent reservation for violating a curiously named “Religious Use”

policy that actually prohibited the use of meeting

rooms for “religious purposes.” Id. at 1199–200.

The court noted that the government’s “purpose

was to invite the community at large to participate in

use of the meeting room for expressive activities,”

including renting meeting rooms to community

groups ranging from the Sierra Club, to Narcotics

Anonymous, to the East Contra Costa Democratic

Club. Id. at 1204. Despite this wide-open invitation,

the court held that the “[l]ibrary meeting room is a

limited public forum,” because the government “did

not intend for the…meeting room to be open for indiscriminate use.” Id. at 1206, 1205 (citing Bronx Household of Faith v. Bd. of Educ. of the City of New York,

331 F.3d 342, 346 (2d Cir. 2003). Relying on the Second Circuit’s circular logic, the court said the government’s “policy and practices make clear that the [government] did not intend[] for the…meeting room to be

[a designated public forum],” because its “policy excludes…organizations who wish to engage in religious

services.” Id. at 1205. Thus, the exclusion was exempt

from heightened scrutiny, and the court held the exclusion to justify itself under the rational basis standard.

Finally, the same error controlled the outcome in

Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, 897 F.3d 314 (D.C. Cir.

2018). At issue was a transit authority’s prohibition

on advertisements that “promote or oppose any religion, religious practice, or belief.” Id. at 320. The

Catholic Church sought to place an advertisement

during December depicting a starry night, the silhouettes of three shepherds, a star in the sky, and the

words “Find the Perfect Gift.” Id. The advertisement

included a link to a website about “Christmas Mass”

and “joining in public service…during the liturgical

season of Advent.” Id. The government rejected the

ad, despite regularly accepting ads from businesses

advertising Christmas sales.

Once again, the court determined that the government’s decision to “close [its] advertising space to certain subjects…converted that space into a non-public

forum.” Id. at 323. So the government was able to

dodge any heightened scrutiny over its regulation because the regulation itself limited the forum. And the

“exclusion of religion as a subject matter” did not impinge the archdiocese’s First Amendment rights because it was the “implementation of a policy…permissible in a non-public forum.” Id. at 327.2

B. The First Circuit Similarly Allowed the

Government’s Speech Restriction To

Transform a Public Forum into

Government Speech

The court below adopted essentially the same circular logic. It relied on the City of Boston’s exclusion

of the Petitioners’ “Christian Flag” to prove that the

City had not created a forum at all, but rather was

engaged in government speech. Only in that way was

it able to escape the inevitable conclusion that the

City’s exclusion of religious speech from an otherwise

wide-open forum is viewpoint discrimination and

therefore per se unconstitutional. See Good News

Club, 533 U.S. at 111–12; Rosenberger, 515 U.S. at

829; Lamb’s Chapel, 508 U.S. at 384.

1. This case is not the first time that there has

been confusion about whether a given situation involves public-forum analysis or government speech.

Indeed, this Court anticipated the problem and has

2 This Court denied certiorari only because “the full Court is un-

able to hear this case”; otherwise, “intervention and reversal

would be warranted.” 140 S. Ct. at 1199 (Gorsuch, J., statement

regarding denial of certiorari).

specifically cautioned against using the government

speech doctrine “as a subterfuge for favoring certain

private speakers over others based on viewpoint.”

Summum, 555 U.S. at 473.

When the Court has determined that a case involved government speech, not a forum for private

speech, it defined the government speech by what the

arena at issue allows to be included, not what it excludes. Thus, Walker v. Texas Division, Sons of Confederate Veterans, Inc., 576 U.S. 200, 212 (2015), held

license plates to be government speech because they

served “the governmental purposes of vehicle registration and identification.” The Government could

therefore determine which messages would impede

its purpose of an effective government identifier.

Likewise, in Rust v. Sullivan, 500 U.S. 173, 178

(1991), the funding at issue was for “acceptable and

effective family planning methods and services,” and

the government had the power to determine what it

would define as “acceptable and effective” methods.

Once that boundary of what the government wanted

to say was established, its exclusion of opposing viewpoints was consistent with the court’s protection of

the government’s ability to choose its own message.

And in Summum, the city allowed monuments to

be erected in the park that were “directly relate[d] to

the history” of the city, or “donated by groups with

longstanding ties” to the community. 555 U.S. at 465.

Once the government had established what it intended to speak about, it could then selectively establish a limited number of monuments in support of that

message.

2. Here, by contrast, the City of Boston had

nothing to say for itself. Indeed, the City could not

have been clearer about its intentions: it sought “to

accommodate all applicants seeking to take advantage of” its “public forums,” and included flag-raising events at a third flagpole in front of City Hall.

Pet.App.137a. Having “opened” its property for “expressive activity,” any restrictions on that activity are

subject to “the same limitations as that governing a

traditional public forum.” Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992).

But instead of following the plain language of the

government’s policy and application, the court below

ignored this Court’s admonition to exercise “great

caution before extending…government-speech precedents,” Matal v. Tam, 137 S. Ct. 1744, 1758 (2017).

Rather, the court determined that “the City engages

in government speech when it raises a third-party

flag,” Shurtleff, 986 F.3d at 94, because, while the

City has let many groups raise a wide variety of flags

(at over 280 flag raisings), id. at 83–84, the court believed these flags have fit in a “narrow set of acceptable secular designs,” for “countries, civic organizations, or secular causes,” id. at 91–92. But calling this

subset of flags “narrow” is a misnomer. It is hard to

imagine what type of flag would fall outside of flags

for “a country, civic organization, or secular cause”

other than a religious flag. Therefore, the “policy and

practice,” Cornelius, 473 U.S. at 802, of the City of

Boston was to approve all flag-raising requests except

for requests from religious organizations. Indeed, Petitioners’ flag was the very first the City ever excluded.

Instead of examining the restrictions themselves

in light of the First Amendment, the First Circuit determined that the “restrictions demonstrate an intent

antithetic to the designation of a public forum, and

those restrictions adequately show that the City’s

flagpole is not a public forum.” Shurtleff, 986 F.3d at

93–94. This is the same type of circular reasoning

seen in Bronx Household, Faith Center, and Archdiocese of Washington. As in those cases, the plaintiffs’

claims in this case “rise or fall on the classification of

the challenged speech.” Shurtleff, 986 F.3d at 87. And,

like Bronx Household, Faith Center, and Archdiocese

of Washington, the court allowed the government’s religious-speech ban to define the type of forum that existed. The First Circuit extended this erroneous reasoning further by determining that no forum existed

at all.

C. Other Circuits Have Correctly Applied

This Court’s Precedents to Protect

Religious Speech in a Public Forum

To be clear, this kind of circular logic is entertained by only several of the circuits, and the others

have generally followed the approach to forum assessment prescribed by this Court’s cases. Some have expressly rejected the premise that a speech exclusion

can justify itself. For example, in Gregoire v. Centennial School District, 907 F.2d 1366 (3d Cir. 1990), the

Third Circuit refused to accept a tautological justification of speech bans. At issue was a policy authorizing the rental of unused school facilities to community

groups so long as they were not religious. Id. at 1373.

The government argued that the exclusion “evince[d]

a clear intention to maintain a closed forum.” Id. But

the court understood that allowing “statements of intent to end rather than to begin the inquiry into the

character of the forum would effectively eviscerate the

public forum doctrine; the scope of [F]irst [A]mendment rights would be determined by the government

rather than by the constitution.” Id. at 1374. Once the

government “has, in reality, opened its doors” to a

wide range of groups, it cannot “gerrymander[]” religious groups out of the forum “solely on the basis of

the religious content” of their speech. Id. at 1375.

Similarly, the Fifth Circuit has recognized forum

analysis must begin with whom the government allows to use the forum, not whom it excludes. See Concerned Women for America v. Lafayette Cnty., 883

F.2d 32, 33–34 (5th Cir. 1989) (“[B]y allowing these

various groups to hold their meetings in a library auditorium, the library has created a public forum, and

therefore must now allow access to other groups

whose meetings have…religious content.”).

As noted, these kinds of decisions are the norm,

and they should be, because they follow this Court’s

jurisprudence. What is unacceptable, and requires

correction, is that Americans within the footprints of

the circuits that go the other way are denied full exercise of their First Amendment rights, particularly

where religious speech is concerned.

III. The Court Should Reaffirm that Excluding

Only Religious Speech Does Not Transform

a Public Forum Into a Limited Forum or

Government Speech

Under the illogic of the decision below, if the government wants to exclude religious speech from an

otherwise wide-open forum, it has carte blanche to do

so. The exclusion itself means that the government

has either opened a space only for secular causes or

has chosen to speak for itself only on secular issues.

Either way, the government gets to dodge First

Amendment scrutiny. But this is inconsistent with

this Court’s free-speech jurisprudence, which rejects

this very reasoning.

In Widmar, a university claimed that its purpose

was to “provid[e] a ‘secular education’ to its students.”

454 U.S. at 268. So, it was reasonable to exclude a religious club from campus because that club was, by

definition, not secular. Id. But the Court said that this

“secular” goal did not “exempt [the university’s] actions from constitutional scrutiny,” and that any such

restriction must still satisfy strict scrutiny. Id. at 270;

see also Reed v. Town of Gilbert, 576 U.S. 155, 163

(2015) (a law is content based and subject to strict

scrutiny if it “draws distinctions based on the message

a speaker conveys,” or if it “applies to particular

speech because of the topic discussed or the idea or

message expressed”); Campbell v. St. Tammany’s

Sch. Bd., 206 F.3d 482, 486–87 (5th Cir. 2000),

granted, vacated, and remanded in light of Good News

Club v. Milford Cent. Sch., 533 U.S. 98 (2001) (holding

that the government had created a limited forum

where its policy “prohibit[ed] several types of uses,”

like political, for-profit fundraising, and religious activities).

This Court has also rejected overly broad takes on

the government speech doctrine. It warned in Matal,

for example, that courts should not reflexively designate speech as “government speech” because “if 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.” 137 S. Ct. at 1758.

The Court should take this opportunity to reenforce three key points from its precedents on public

forums and government speech.

First, when examining whether the government

has “by policy or by practice” opened a designated or

limited forum, Perry, 460 U.S. at 47, courts should define the policy and practice by what the forum includes, not what it excludes. Courts should not give

the government authority to discriminate against religious uses merely by defining a forum by the very

exclusion at issue. In Perry, the Court reasoned that

the school had limited access to its mail system because permission had not “been granted as a matter

of course to all who seek to distribute material.” Id.

Even though the school allowed “some outside organizations…to use the facilities,” that “selective access”

did not create a public forum. Id. The Court looked at

what was allowed in the forum (a limited number and

type of speakers), not what was excluded, to determine that the policy or practice of the government

had, at most, created a limited public forum. See also

Widmar, 454 U.S. at 268 (government “created a forum generally open for use by student groups” because it had a policy “of accommodating their meetings”). The forum analysis hinges on the speech or

narrow purpose for which the government has opened

the forum.

Second, religious-speech restrictions trigger

heightened scrutiny. It is indisputable that “religious

worship and discussion” are “forms of speech protected by the First Amendment,” Widmar, 454 U.S. at

269 (citing Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640 (1981); Niemtko v. Maryland,

340 U.S. 268 (1951); Saia v. New York, 334 U.S. 558

(1948)), entitled to “special constitutional solicitude,”

id. at 277. And no matter what type of forum is at issue, viewpoint discrimination is an unconstitutional,

“egregious form of content discrimination.”

Rosenberger, 515 U.S. at 829. The First Amendment

forbids barring speech when the “specific motivating

ideology or the opinion or perspective of the speaker

is the rationale for the restriction.” Id. at 830–31.

Even if courts conclude that the government has

managed to appropriately exclude all topics that religion might pertain to in an arena, such a “contentbased law…target[ing] speech based on its communicative content—[is] presumptively unconstitutional”

and must be justified by the government proving it is

“narrowly tailored to serve compelling state interests.” Reed, 576 U.S. at 163 (citations omitted). This

Court has consistently rejected “skating as far as possible from religious establishment concerns” as a compelling interest. Trinity Lutheran Church v. Comer,

137 S. Ct. 2012, 2024 (2017) (citing Widmar, 454 U.S.

at 276); accord Espinoza v. Mont. Dep’t of Revenue,

140 S. Ct. 2246, 2260 (2020). If the government wants

to exclude all public speech from a particular arena,

it must either close the forum for a limited purpose,

or it must exclude private speech from an arena so

that it may speak only as the government.

Third, government speech requires more than

just excluding religious speech. When the government

claims that it is merely receiving “assistance from private sources for the purpose of delivering a government-controlled message,” Summum, 555 U.S. at 468,

the “general government practice” must be “one of selective receptivity,” id. at 471. If the government instead allows all private parties to craft the “government’s” message, but only excludes religious speech

or speakers, the government’s receptivity is no longer

selective. A ban on religious speech does not demonstrate that the government intends only to speak for

itself. Accord Matal, 137 S. Ct. at 1759–60 (ban on

“derogatory” marks did not transform trademarks

into government speech).

***

None of this analysis suggests that the government “lacks a choice.” Archdiocese of Wash., 140 S. Ct.

at 1150. If the City of Boston (or any government entity) wants to exclude religious speech from an area it

has otherwise opened, it may close the forum. Perry,

460 U.S. at 46. For example, in Lexington, Virginia,

the city had allowed a wide range of flags to be flown

on city flagpoles. Sons of Confederate Veterans, Va.

Div. v. City of Lexington, 722 F.3d 224, 226 (4th Cir.

2013). In 2011, the City passed an ordinance limiting

the use of its flagpoles to three flags: the flag of the

United States, the flag of the Commonwealth of Virginia, and the flag of the city itself. Id. at 227. Because

the city had closed its previously designated forum “to

all private speakers,” it had “reserve[d] its equipment

purely for government speech.” Id. at 232.

In this case, if Boston finds the message expressed

on Petitioner’s flag to be intolerable—which would

say a lot about the City’s motivation here—it could

limit the use of its flagpole to its own flags. What it

cannot do is provide a space where any group may fly

a flag subject to general time, place, and manner restrictions, and then exclude all religious messages.

This Court has never upheld a regulation that singles

out religious viewpoints for silencing. This case

should not be the first.

CONCLUSION

The Court should reverse.

Respectfully submitted,