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

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

Page

Ark. Ed. Television Comm’n v. Forbes, 523 U.S.

666 (1998)............................................................ 28

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

4 U.S.C. § 7 ............................................................... 9

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, montpeliervt.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 flagraisings in such speech. The record of such flagraisings 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

“Were the Free Speech Clause interpreted

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

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. 31a38a, but they have abandoned it in this Court, see Pet. ii-iii.

1

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

announcements,

and

otherwise

cooperatively

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 thirdparty 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 halfstaff 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-marriageequality or other politically fraught banner.” Id. at

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.

6

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 Banners

on Heber City Main Street Draws Public Comment,

KPCW.org

(June

5,

2019,

7:24

a.m.),

https://bit.ly/3ykigtP. Despite their private origin, the

lamppost banners became a topic of public controversy

on which citizens expected their city council to act.

Similarly, in Solon, Ohio, the city removed from

police department property one version of the “Thin

Blue Line” flag due to the “divisive and unhealthy

reaction within [the city’s] community” to seeing it,

and then, days later, replaced it with a predecessor

15

version of the same flag. 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.), https://bit.ly/3ylahwq.

In a lengthy

statement, the city’s mayor explained that the

replacement flag better conveyed the city’s “intent and

message” of honoring law enforcement, while also

“mitigating the “unfortunate negative connotation”

associated with the flag’s other version. 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.),

https://bit.ly/3DPDrFi. The mayor further noted that,

as a result of the flag incident, he had spoken with

local Black community leaders and “agree[d] we must

be selective in the symbols we choose to convey

important perspectives.” Id.

Examples such as these show that when citizens

see flag displays on government property, they

routinely attribute to their government the messages

sent by those flags. And whether or not such flags are

the result of a private request, citizens look to their

local government to hear and respond to their

concerns, just as the protesters on Boston’s City Hall

Plaza did.

When these “reasonable observers,”

whether from New Rochelle, Heber City, Solon,

Boston, or elsewhere, see flags flying over their

government’s property, they understand the messages

sent by those flags to be government speech.

16

III. Governments routinely engage in speech

by flying flags over government property

that represent other nations or mark

occasions of civic importance.

Amici States, like other governments around the

country and around the world, speak to, with, and on

behalf of our constituents in a wide variety of ways.

As detailed below, flag-raisings above government

property are a common form of such government

speech, including flag-raisings of the two types

reflected in the record in this case: flying flags of other

nations (often to honor local communities or visiting

dignitaries), and flying flags associated with a holiday

or other occasion recognized by federal, state, or local

authorities. And, not surprisingly, such flag-raisings

are often annual events, occurring at or around the

same time each year.

Boston’s flag-raisings match this general

description. Indeed, the record indicates that because

a given flag was often flown multiple times between

2005 and 2017 at around the same time each year, the

284 flag-raisings emphasized by petitioners, see Pet.

Br. passim (using the number 284 at least 13 times),

represent a much smaller number of unique flags—

approximately 50. Pet. App. 173a-187a; Resp. Br. 8.

All but eight of those 50 flags were flags of other

nations, many of which are represented by substantial

communities in Boston, raised on days that are

significant to those nations.7 The remaining eight

7 “Flags of other nations” includes multinational flags such as

that of the United Nations (raised nine times between 2005 and

2017, see Pet. App. 173a-184a), and the Pan-African flag (raised

17

flags are associated with some sort of governmental

recognition such as speeches, holiday celebrations,

and official proclamations—precisely the sorts of

government speech in which amici engage all the

time.8

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.

Governments large and small across this country

routinely express themselves by flying flags of other

nations above their property. Nothing about their

doing so indicates an intention to designate a public

forum. To the contrary, flying other nations’ flags is a

common form of government speech, often employed

as part of an official celebration of a local community.

in 2017, see Pet. App. 174a, on the birthday of Marcus Garvey,

who designed it, see The Untold Story And Meaning Behind The

RBG

Flag,

panafricanalliance.org

(Dec.

7,

2021),

https://bit.ly/3ILr6FA). News reports indicate that at least one

Boston City Councilor had some involvement in the raising of the

Pan-African flag in a previous year at around the same time of

year. See, e.g., O’Ryan Johnson, Councilor, City Hall caught up

in flag flap, Bos. Herald (Aug. 21, 2008), https://bit.ly/3DLshBi

(reporting that former City Councilor Chuck Turner had “helped

raise” the Pan-African flag “at City Hall”).

8 What the record emphatically does not show is a practice of

raising any flag that any group wanting to make a statement

might wish to fly. Indeed, for all the emphasis petitioners and

their amici place on the 284 flag-raisings and the City’s supposed

“lack of editorial control” over them, ACLU Br. 18, they cannot

point to a single instance of a flag-raising that neither features

another nation’s flag nor is associated with another form of

governmental recognition.

18

The City of San José, California, for example, has

a flag policy stating that “[t]he City’s flagpoles are not

intended to serve as a forum for free expression by the

public,” and listing flags that may be flown “as an

expression of the City’s official sentiments.” City of

San José, Exhibition of Federal, State, and City Flags

from City Buildings—All Occasions, sanjoseca.gov, at

3, ¶ C (rev. Oct. 17, 2006), https://bit.ly/30tX0Fu. The

policy states that “[f]lags of the governments

recognized by the United States may be displayed upon

the request of [certain city officials].” Id. ¶ C.1

(emphasis added).

Thus, San José expressly

contemplates flying flags of other nations as part of its

government speech.

Other municipalities in

California

have

adopted

similar

provisions

emphasizing that flags flown on municipal property

are government speech, and including flags of other

nations in their list of approved flags. See, e.g., City of

Gilroy, Policy for Flying Flags at City Facilities,

cityofgilroy.org, at 3, ¶¶ 1-2 (May 17, 2021),

https://bit.ly/3m6nKmT (noting that “the City’s flag

poles are not intended to serve as a forum for free

expression by the public” and represent “an expression

of the City’s official sentiments,” and authorizing the

display of “Commemorative Flags,” to include “a flag

that identifies with a specific … nation …, whereby

the City honors or commemorates the … nation … by

flying the flag”); City of Arroyo Grande, Policy on

Display of Flags, arroyogrande.org, at 6, ¶ II.C.3 (May

25, 2021), https://bit.ly/324GMDe (describing display

of “commemorative flags,” which may include “a flag

that identifies with a specific … nation … that the City

Council choses [sic] to honor or commemorate,” as

“expression of the City’s official government speech”).

19

For another example from across the country, the

City of Barre, Vermont, also authorizes the flying of

“flags of other countries” on city property. City of

Barre, Policy on Flag Displays, barrecity.org, at 1-2,

Policy & Procedure ¶ 3.a (rev. Nov. 24, 2020),

https://bit.ly/321LEZR.9 Such flags may be flown only

upon approval by the Barre City Council. Id. ¶ 3.10

Another city in Vermont, Montpelier, also requires

City Council approval for any flag to fly on government

property, and authorizes the flying of flags that, inter

alia, “promote[] unity and community with another …

country.”

City of Montpelier, Flag Display,

montpelier-vt.org,

at

1-2,

¶¶ 4.b.i,

4.b.i.2.e,

https://bit.ly/3GKLMMo.

Governments also fly flags as a means of honoring

Native American nations. On October 12, 2021, the

City of National City, California raised the flag of the

Kumeyaay Nation at City Hall “in honor and

acknowledgement of #IndigenousPeoplesDay 2021.”

City of National City (@CityOfNatlCity), twitter.com

(Oct. 11, 2021, 11:29 am), https://bit.ly/3oTjcC5. The

city’s public acknowledgment of what it was doing—

“honor[ing]” the Kumeyaay Nation by flying its flag on

the day federally recognized as Columbus Day, see 5

U.S.C. § 6103(a); 36 U.S.C. § 107, but known in recent

A voter-approved measure to change the city charter to

allow the City to fly only the City, State, United States, and

POW/MIA flags had not been ratified by the Vermont Legislature

as of December 21, 2021. See H. 444 (introduced Apr. 7, 2021),

legislature.vermont.gov, https://bit.ly/3pZNxhF.

10 News reports indicate that flags flying over City Hall Park

are understood by community members as “the city … show[ing]

its support” for the cause that the flag represents. See, e.g., Mike

Dougherty, Barre hoists Black Lives Matter flag, with ‘thin blue

line’ on deck, VTDigger.org (Dec. 1, 2020), https://bit.ly/3dTH42u.

9

20

years in California as Indigenous Peoples’ Day, see

Cal. Gov. Gavin Newsom, Proclamation, gov.ca.gov

(Oct. 8, 2021), https://bit.ly/3EXKfC6—makes pellucid

that the flying of that flag over City Hall was

government speech.

The Village of Clayton, New York, recently took a

step further than other jurisdictions in embracing

solely the practice of flying other nations’ flags.

According to news reports, following an occasion on

which the LGBTQ Pride flag was displayed on one of

the village’s flagpoles, the village adopted a new rule

“stat[ing] that only the U.S. flag and other national

flags … may be flown from village flagpoles.” Alex

Gault, Clayton moves to ban non-national flags from

village flagpoles, NNY360.com (Aug. 4, 2021),

https://bit.ly/31OvIdL (emphasis added). The village’s

Mayor “said it’s the view of the village board that any

flags flown on village property represent the entire

village,” adding that “‘[t]he issue is (that) you’re

speaking for the whole community when you put one

up on village flagpoles.’” Id.

At the federal level, the Department of Defense has

adopted a policy approving the display of other

nations’ flags as government speech.

A recent

memorandum from then-Secretary of Defense Mark

Esper explained that “[f]lags are powerful symbols,

particularly in the military community for whom flags

embody common mission, common histories, and the

special, timeless bond of warriors.” 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,

at

1

(Jul.

16,

2020),

21

https://bit.ly/3oTvuuh. Accordingly, in an effort to

“promote unity and esprit de corps,” Secretary Esper

ordered that the display of flags other than the

American flag in “Department of Defense work places,

common access areas, and public areas” be limited to

a short list of flags, including “[f]lags of other

countries, for which the United States is an ally or

partner, or for official protocol purposes.” Id. at 2. The

memorandum went on to specify, however, that flag

displays other than those on the short list were

permissible at locations “where the nature of the

display or depiction cannot reasonably be viewed as

endorsement of the flag by the Department of

Defense,” id.—that is, in locations where a reasonable

observer would not understand the flag’s display to be

government speech.

Flags of other nations have even flown from the

most American of locations: atop the White House. On

July 28, 1918, President Woodrow Wilson ordered that

the flag of Serbia fly next to the American flag above

the White House, in recognition of “the solidarity of

Americans with the Serbian people who suffered so

tremendously during the First World War.” U.S.

Embassy in Belgrade, When the Serbian Flag Flew

Over the White House, rs.usembassy.gov (July 28,

2020), https://bit.ly/3GHXFTb. President Wilson did

so “upon the advice of his good friend Mihajlo Pupin,”

id.—but that obviously does not mean that President

Wilson had created a designated public forum by

taking his friend’s advice. To the contrary, the

president’s decision to fly the Serbian flag from atop

the White House was a uniquely powerful gesture of

government speech, still remembered more than a

century later.

22

The City of Boston’s flag-raising policy is fully in

line with these other jurisdictions that treat raising

other nations’ flags as government speech intended to

send a message. The City’s policy states the message

that it intends to send: “[o]ur goal is to foster diversity

and build and strengthen connections among Boston’s

many communities,” including by “commemorat[ing]

flags from many countries and communities at Boston

City Hall Plaza during the year,” and “rais[ing]

awareness in Greater Boston and beyond about the

many countries and cultures around the world.” Pet.

App. 143a. Accordingly, as noted above, the vast

majority of flag-raisings in the record are flags of other

nations, which further the City’s stated goal.11

11 Petitioners suggest that the City of Boston cannot have

been engaging in government speech when it raised other

countries’ flags over City Hall Plaza because, in their view, such

flag-raisings are a crime in Massachusetts. See Pet. Br. 53-54.

This argument lacks merit. The Victorian-era statute in

question, see 1895 Mass. Stat. ch. 115, purports to prohibit “the

flag or emblem of a foreign country” from being “display[ed] …

upon the outside of a … city or town building,” on pain of a twenty

dollar fine. Mass. Gen. L. ch. 264, § 8. Even assuming that this

statute could be constitutionally enforced in any circumstances,

but cf. Texas v. Johnson, 491 U.S. 397 (1989), its plain language

limits its application to instances where the flag is in physical

contact with the building’s exterior—an interpretation confirmed

by the fact that the statute applies to both flags and emblems.

And any question as to whether the phrase “upon the outside of”

might be ambiguous enough to reach a flag flying nearby, see Pet.

Br. 53, would be resolved in the negative by the rule of lenity.

See, e.g., Commonwealth v. Dayton, 75 N.E.3d 600, 602 (Mass.

2017) (“[W]hen the language of a criminal statute plausibly can

be found ambiguous, the rule of lenity requires that the

defendant receive the benefit of the ambiguity.”).

23

Boston’s actual practice lines up with its policy and

stated goal. For example, on October 5, 2018, the City

of Boston hoisted the flag of Italy above City Hall

Plaza, see Boston Arts & Culture Cable Office, Italian

Flag Raising, cityofboston.gov (Oct. 5, 2018),

https://bit.ly/3m1858D (“Italian Flag Video”), as it had

also done in early October of 2016 and 2017, see Pet.

App. 174a-175a. Video of the 2018 flag-raising shows

the then-Mayor of Boston explaining that “Boston is

certainly proud to honor Italian Heritage Month with

all of you,” Italian Flag Video at 8:06-8:11, and, after

extolling the accomplishments of Boston’s ItalianAmerican

community,

reading

a

mayoral

proclamation declaring October to be Italian Heritage

Month in the City of Boston. Id. at 9:00-9:10. The

Italian flag was hoisted about five minutes later, with

the Mayor and other elected officials looking on. See

id. at 14:45 et seq. As another example, the record

shows that the flag of Lithuania has flown nine times

between 2005 and 2017 over City Hall Plaza, always

on or around February 16. Pet. App. 173a-187a. A

similar flag-raising occurred on February 16, 2018, see

C.A. App. 395, and shortly before that flag-raising, the

Governor of Massachusetts issued a proclamation

recognizing February 16 as Lithuanian Independence

Day, noting that “[o]ur vibrant Lithuanian American

community has made tremendous contributions to the

Commonwealth’s society and culture.” Governor

Charles D. Baker, A Proclamation, mass.gov (Feb. 1,

2018), https://bit.ly/3pQdTTv.12 These flag-raisings

12 A virtually-identical proclamation from 2019 is available at

https://bit.ly/3IMFjSD. Similar proclamations may well have

been given in previous years, but gubernatorial proclamations

issued before October of 2017 are not readily available on

24

were not simply private parties utilizing a designated

public forum to speak by flying a flag, but rather an

integral part of state and local government speech

honoring local communities.13

B.

Flying a flag to commemorate holidays

and other occasions of civic importance

is paradigmatic government speech.

Amici and other governmental entities also

routinely speak in recognition of important civic

occasions like legal holidays and other widelycelebrated observances. Whether by proclamation,

speech, written statement, or flag-raising—or a

combination of these—governmental recognition of

such occasions is paradigmatic government speech.

Often, a flag-raising will be accompanied by

another traditional form of government speech (such

as a proclamation). For example, the city of Belvedere,

California’s flag policy regarding “commemorative

flags” (i.e., “any flag other than the United States

Flag, the State of California Flag, or the City of

Belvedere Flag”) states that “[t]he display of

commemorative flags constitutes governmental

speech,” and further provides that “[t]he City may

display commemorative flags only if authorized by

Massachusetts’ official website. See Mass. Governor’s Office of

Constituent Services, Issued Proclamations, mass.gov,

https://bit.ly/3IMXh7F.

13 Petitioners say that, in the past, the City “never so much

as look[ed] at a flag before approving it,” Pet. Br. 50, but it would

be surprising indeed were the City to ask the nation of Lithuania

or Italy (or any other) to alter the design of its flag before agreeing

to fly it. See Pet. App. 150a.

25

City Council Resolution.” City of Belvedere, Policy 206: Flag Policy, cityofbelvedere.org, at 2, ¶ 20.6.4,

https://bit.ly/3pWuIMD.

The City of Spokane,

Washington, allows for the flying of flags other than

the United States, Washington, Spokane, and POWMIA flags, but “only … upon the issuance of a federal

or state proclamation or resolution or a mayoral

proclamation.” City of Spokane, Use and Display of

U.S. Flag, State Flag, and Other Flags, mrsc.org, at 2,

¶ 5.4 (Dec. 2, 2018), https://bit.ly/3yv1HeD. These

jurisdictions and others like them explicitly treat flag

raisings as an integral part of government speech that

furthers the government’s decision to express itself in

an especially potent way. See supra Part II.A.

Boston’s practice is similar. As noted supra at 1617, the record shows that, between 2005 and 2017,

Boston flew a total of eight flags that are not

associated with other nations (and it has flown several

of those eight flags on multiple occasions). All eight of

those flags are tied directly to federal, state, or local

holidays, or to other occasions recognized by the

Governor or Legislature of Massachusetts, the Mayor

of Boston, or the Boston City Council. See Resp. Br. 911 (listing occasions). Thus, as respondents explain,

“[a]part from national flags, the Flag Raising List

relied on in the Joint Statement does not identify a

single instance during the period from 2005-2017 in

which the City lowered the Boston City Flag and

raised another flag in its place that was not in

connection with a publicly identified observance or

celebration.” Id. at 11.

As an example, the then-Mayor of Boston’s

comments at Boston’s 2017 Pride Week flag-raising

26

directly link raising the Pride flag with other forms of

government speech. Mayor Walsh stated that “City

Hall is proud to be the first municipality to properly

fly the rainbow flag, and we will continue to fly it every

single year…. We’re going to continue to fly this

[rainbow] flag, and the transgender flag, with pride in

our hearts.” Cable Office, Dep’t of Neighborhood

Development, LGBT Pride Flag Raising 2017,

cityofboston.gov

(June

2,

2017),

https://bit.ly/3IKLBSW, video at 7:15-7:25 & 9:189:23.

Shortly thereafter, the Mayor read a

proclamation celebrating Pride Week and then

watched as the Pride flag was raised. See id., video at

9:38-10:02 & 26:45 et seq.14

In sum, Boston’s flag-raisings have consistently

honored the City’s diverse communities and marked

important civic occasions. That practice is consistent

with the expressive activities of state and local

governments across the country.

IV. Reversal in this case will inevitably lead to

less speech.

As this Court recognized in Summum, “where the

application of forum analysis would lead almost

inexorably to closing of the forum, it is obvious that

forum analysis is out of place.” Summum, 555 U.S. at

480. That is precisely the case here. Because “City

14 The record appears unclear as to whether every single one

of the 284 flag-raisings referenced by the parties was

accompanied by a proclamation or other official action. Should

this Court conclude that the result in this case turns on that

point, the proper course would be to vacate the decision below

and remand for further discovery.

27

Hall Plaza, and several nearby City-owned properties,

are public forums open to public events,” Resp. Br. 6,

it requires little imagination to foresee that, if the

City’s flagpole is a designated public forum, deeply

offensive flags could soon be flying high above City

Hall Plaza next to the flags of the United States and

the Commonwealth of Massachusetts. See, e.g., Perry

Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.

37, 46 (1983) (noting that “as long as” a governmental

entity “retain[s] the open character” of a designated

public forum, the entity is “bound by the same

standards as apply to a traditional public forum”).

And, unfortunately, that someone might wish to fly,

say, a Nazi flag on a public flagpole is not a mere

hypothetical. See, e.g., Maya Eliahou & Christina

Zdanowicz, A Nazi flag was found flying at a public

park in Wyoming, cnn.com (Aug. 2, 2018),

https://cnn.it/3yppQmN (reporting that someone

replaced the American flag with a Nazi flag on a cityowned flagpole located in a public park in Laramie,

Wyoming).

The city of Alpharetta, Georgia, recently faced a

similar situation when a local group wished to march

in a city-sponsored parade while displaying the

Confederate battle flag. See Leake v. Drinkard, 14

F.4th 1242 (11th Cir. 2021). The Eleventh Circuit

rejected the group’s First Amendment claim,

concluding that the parade was government speech

and noting that “the City’s view was that the

Confederate battle flag symbolizes oppression and

slavery, and its inclusion was inconsistent with its

goal of uniting the community.” Id. at 1252. The court

further observed that “absurd results would follow if

the First Amendment protected the [group’s] right to

28

fly the Confederate battle flag in the City-organized

Parade” and concluded that such a result “‘would lead

almost inexorably to’ the end of government-sponsored

parades, a medium of communication governments

have used from time immemorial.” Id. (quoting

Summum, 555 U.S. at 480; other citations and

internal quotation marks omitted).

In any event, because the scenario of offensive flags

flying on city-owned flagpoles over city property would

obviously be unacceptable to any city, a city found to

have designated a public forum on its flagpoles would

simply take steps to reduce access to the flagpoles.

Perhaps the city would eliminate the flag-raising

program all together. Cf. Ark. Ed. Television Comm’n

v. Forbes, 523 U.S. 666, 681 (1998) (“Were it faced with

the prospect of cacophony, on the one hand, and First

Amendment liability, on the other, a public television

broadcaster might choose not to air candidates’ views

at all.”). Perhaps it would significantly reduce the

types of flags allowed to be flown, as Clayton, New

York, did. See supra at 20. At the very least, the city

would almost certainly take steps to “un-designate”

the public forum by rewriting its policy, being careful

to spell out that it was not “intentionally opening a

nontraditional forum for public discourse” on the

flagpole. Cornelius v. NAACP Legal Def. Fund, 473

U.S. 788, 802 (1985).15 Indeed, Boston has indicated

15 Petitioners and some amici emphasize the inclusion of the

words “public forum” in the City’s policy in arguing that the City

created a designated public forum on its flagpole. See, e.g., Pet.

Br. i, 7, 23, 27; ACLU Br. 7. But, as the City points out, the area

at the base of the flagpole is indeed a public forum. Resp. Br. 3.

The City’s policy carefully specifies that the area “at the City Hall

29

that, should this Court reverse the judgment below, it

intends to do just that. See Resp. Br. 46.

The First Amendment analysis should turn on the

facts of what the City has actually done over the years,

and how reasonable observers would (and did)

perceive it. Those factors, as the courts below

recognized, consistent with amici States’ own

experience, lead to the conclusion that the flags flying

over Boston’s City Hall Plaza are government speech.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Flag Poles” is a public forum, Pet. App. 133a (emphasis added);

petitioners and their amici are not so precise, conflating the

location “at” the base of the flagpoles with the location “on” the

flagpole itself. See, e.g., ACLU Br. 7 (“The policies explain that

members of the public may hold events at certain properties near

City Hall, including on ‘the City Hall Flagpoles’ themselves.”)

(quoting Pet. App. 133a, but omitting the policy’s use of the word

“at”) (emphasis added).

30

Respectfully submitted,

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

December 22, 2021

WILLIAM TONG

Attorney General of

Connecticut

165 Capitol Ave.

Hartford, CT 06106

KATHLEEN JENNINGS

Attorney General of

Delaware

820 North French St.

Wilmington, DE

19801

KARL A. RACINE

Attorney General for

the District of

Columbia

400 6th Street, NW,

Suite 8100

Washington, DC 20001

HOLLY T. SHIKADA

Attorney General of

Hawaii

425 Queen St.

Honolulu, HI 96813

31

AARON M. FREY

Attorney General of

Maine

6 State House Sta.

Augusta, ME 04333

ELLEN F. ROSENBLUM

Attorney General of

Oregon

1162 Court St. N.E.

Salem, OR 97301

KEITH ELLISON

Attorney General of

Minnesota

102 State Capitol

75 Rev. Dr. Martin

Luther King Jr. Blvd.

St. Paul, MN 55155

MARK R. HERRING

Attorney General of

Virginia

202 North 9th St.

Richmond, VA 23219

LETITIA JAMES

Attorney General of

New York

28 Liberty St.

New York, NY 10005