Many city councils across the country are having a similar debate—whether they should or can fly the Pride flag on the city government’s flagpole. The debate often occurs in June, which is Pride Month, sparked by a request from residents or a supportive council member. But while some city leaders are eager to show their support by flying the Pride flag, other leaders are reluctant, and even afraid of the legal consequences. One common argument against flying the Pride flag is that leaders would then have to fly others flags requested by community members no matter how divisive or hateful, such as the flag of a white supremacist group. During one such discussion in Traverse City, Michigan, County Administrator Nate Alger said, “Based on the opinion of county legal counsel, if the county approved the request to fly a Pride flag, the flagpole would be ‘opened up as a forum for public speech’ and the county would be forced to approve other similar requests.”
But is that true? Does the First Amendment permit a city government to discriminate between which flags it raises or does raising one flag pave the way for any flag to be flown? It all depends on whether the city is expressing itself or creating a public forum.
Government Expression or Public Forum?
Under current law it is perfectly legal for a city to fly the Pride flag (or another flag of its choosing) while rejecting requests for other flags to be flown as long as city leaders are actively making that choice. Just as individuals do, government has freedom of expression derived from the First Amendment. That’s evident when city leaders vote to build a monument, rename a building, or create a public information campaign. As part of that freedom of expression, a local government can choose to fly a flag in support of community members, to celebrate a holiday, or to back a sports team. Or the government can choose not fly any such flags since freedom of expression includes the right not to speak.
The key to not running afoul of the First Amendment is for city leaders to actively make the decision, whatever it is. If they vote to raise the Pride flag at a council meeting or set up a process in which requests to raise flags on city property can be approved, then those flag raisings fall within the city government’s freedom of expression. The city leaders can choose to raise some flags, but not others, as they see fit.
However, if a city were to fly any flag that was requested of them, without consideration, or if they allowed members of the public to fly flags on the city’s flag pole, that would constitute the creation of a public forum. In a public forum, as opposed to the city’s own freedom of expression, the city would violate the First Amendment if they subsequently decided that some flags could not be flown. That’s because once the government creates a public forum, they cannot discriminate about which viewpoints are permitted in the forum. Consider two hypothetical examples that illustrate the difference between the government exercising its freedom of expression and creating a public forum.
- City council members vote in favor of a request to fly the Pride Flag at city hall to express support for the LGBTQ community. The following month the council votes against a request to fly a flag with a swastika. That is legal under current First Amendment jurisprudence because, in deciding which flags it supports, the city government is exercising its freedom of expression.
- City council members create a policy in which any flag requested by a community member will be flown on the flag pole in front of city hall. A dozen different flags are flown under the policy, but then the council votes against flying a flag celebrating Juneteenth. That would be illegal under current law because the city’s policy of flying any requested flag created a public forum and the city cannot engage in viewpoint discrimination in a public forum.
Upcoming Supreme Court Decision
The distinction between the government expressing itself and creating a public forum is settled law. However, a legal gray area exists if it isn’t clear whether a city is expressing itself or creating a public forum. Consider the facts of Shurtleff v. City of Boston, a case soon to be decided by the Supreme Court.
There are typically three flags that fly in front of Boston’s City Hall—the American flag, the Massachusetts flag, and the Boston flag. Sometimes the third flagpole that ordinarily flies the Boston flag raises a different flag in response to a request from a group who wants to celebrate their background, or promote a cause or special event. The city approved 284 such requests over a 12-year period. The only request it rejected was from Camp Constitution, a group whose mission is “to enhance understanding of our Judeo-Christian moral heritage.” Camp Constitution sought to raise a Christian flag that bore the Latin cross. The city’s justification for rejecting the request was that flying the flag would amount to government endorsement of religion and violate the First Amendment’s establishment clause.
The central question of the case is whether, by raising 284 flags on the city’s flagpole, the City of Boston created a public forum or was expressing itself. The fact that there was a formal request and approval process cuts in favor of the argument that the City of Boston was exercising control over which flags were flown, and was expressing itself. But the fact that so many flags were approved, and that virtually any group that asked could have its flag flown, makes it seems more like a public forum. In fact, during oral arguments some justices suggested that the solution was for the City of Boston to exercise more control over the process, thereby making it clear that the city was expressing itself.
Regardless of the unique circumstances of Shurtleff v. City of Boston, settled law establishes that city governments are free to fly, or not fly flags on city property as long as it’s clear that the city is expressing itself rather than opening up a public forum. City leaders who want to express support for the LGBTQ community should raise the Pride flag without fearing that they’ll have no control over which flag is raised next.