Shurtleff v. Boston is the Supreme Court’s latest opportunity to clarify the murky line between the “government-speech” and “public forum” doctrines. The Court will decide whether the City of Boston violated the Free Speech Clause by refusing to fly a flag with Christian imagery in front of City Hall. The City had previously allowed the flying of numerous national and cultural flags by various organizations, but refused to fly a conservative social organization’s “Christian flag” because of the City’s fear of appearing to endorse a particular religion.
Under the public forum doctrine, private citizens’ free speech is protected to varying degrees, and the government is permitted varying degrees of leeway to regulate private speech. In contrast, under the government-speech doctrine, when the government speaks for itself, the State is simply entitled to regulate its own speech however it pleases. These two doctrines arose out of different, albeit overlapping lines of cases, and are not always easy to distinguish. A finding of government-speech precludes application of the public forum doctrine. Therefore, while the caselaw purports to be internally consistent, in practice the two doctrines can be difficult to parse. Shurtleff is one such example, where the City gave virtually unlimited access to its public flagpole (a factor favoring public forum analysis), however most observers would interpret the flying of a flag on the city-owned flagpole outside City Hall as a message conveyed by the government.
This Commentary argues that the Court can resolve this Free Speech Clause conundrum by refining the test for government-speech. The Court should explicitly require a government entity to intend to speak for itself and thereby take ownership of its own message before it may claim the government-speech defense. In doing so, the government-speech and public forum doctrines can be reconciled and the line between government and private speech can be clarified.