At the Select Board meeting on October 5, 2022, the Town has adopted a formal policy regarding the flying of flags on flagpoles owned by the Town. The policy states, in relevant part:
Only the United States, Commonwealth of Massachusetts, Town of Plymouth and official flags of the U.S. Military and POW/MIA flags may be flown on any Town-owned flag pole.
The policy was made effective immediately, but there is a one-time exception; a “Christian flag” to be flown at Town Hall the week of Thanksgiving, 2022. That flag has been adopted as a symbol by many, but not all, Christian congregations in the United States. A request to fly that flag had been made by a local religious group. The Select Board stressed that the institution of the flag policy was in the works for some time, and was not in response to this request.
At the Select Board meeting, those supporting the raising of the Christian flag sought to be heard on their request. Despite being part of the "Administrative Notes" section of the Select Board meeting, several members of the public supporting the request were allowed to speak. During such statements, reference was made to a recent U.S. Supreme Court case, Shurtleff v. City of Boston, 596 U.S. _________ (2022), suggesting that denial of this request might be a violation of the applicant's First Amendment rights.
For those understandably not familiar with this case, in Shurtleff, a group called Camp Constitution, asked to hold an event on Boston City Hall plaza to celebrate the civic and social contributions of the Christian community, and as part of that ceremony to raise what was described as the “Christian flag.” Because of concerns about the religious nature of the Camp Constitution flag, the City of Boston denied this request. Camp Constitution filed suit against the City of Boston, and the case made its way to the U.S. Supreme Court. The Supreme Court ultimately held in favor of Camp Constitution. But there are significant differences between the circumstances in Boston and Plymouth which make this holding narrower than has been suggested.
In reaching its decision, the Supreme Court decision focused almost exclusively on the long established policy of the City of Boston. The Court noted that “[f]or years, since at least 2005, the city has allowed groups to hold flag-raising ceremonies on the plaza. Participants may hoist a flag of their choosing on the third flagpole (in place of the city’s flag) and fly it for the duration of the event, typically a couple of hours. Most ceremonies have involved the flags of other countries—from Albania to Venezuela—marking the national holidays of Bostonians’ many countries of origin. But several flag raisings have been associated with other kinds of groups or causes, such as Pride Week, emergency medical service workers, and a community bank. All told, between 2005 and 2017, Boston approved about 50 unique flags, raised at 284 ceremonies. Boston has no record of refusing a request before the events that gave rise to this case.” The question the Court stated it needed to decide was whether given this policy, does the raising of a flag at City Hall Plaza constitute ‘government speech’. If so, then it can be regulated by the City. If not, then then it cannot exclude flags based on their content.
In assessing the “government speech” question, the Supreme Court stated that numbers alone were not determinative. More important was the scope of the City’s practices. The Court cited to the City’s history of telling the public that it sought “to accommodate all applicants” who wished to hold events at Boston’s “public forums,” including on City Hall Plaza. No prior consideration had been given to the message being sent by the raising of any other flag. Rather, the “city’s practice was to approve flag raisings, without exception.” Accordingly, the Court stated, “we look at the extent to which Boston actively controlled these flag raisings and shaped the messages the flags sent. The answer, it seems, is not at all. And that is the most salient feature of this case.”
Given this history of the raising of flags on City Hall Plaza, including inviting the public to raise flags, not reviewing them prior to being raised, and not engaging in any assessment as to what message such flag may be conveying, the Supreme Court determined that the flying of a flag at City Hall Plaza could not be considered as expressing the City’s view or position on any issue. Therefore, the Supreme Court unanimously held that the City of Boston could not now limit one particular group from flying its flag because of its religious viewpoint.
The circumstances in Plymouth, as discussed at the Select Board meeting on October 5, 2022, are considerably different than those of the City of Boston.
First, unlike the City of Boston, Plymouth does not have a policy of inviting the public to utilize any of its flagpoles. Plymouth has never promoted private flag raising ceremonies. It does not even have an identified application process or sated procedures for doing so. Second, Plymouth does not have a history of allowing its flagpole to be used for public expression. Until this past year, when the Select Board allowed the flying of a “Pride flag” for Plymouth Pride, it had not allowed any non-governmental or military awareness flag to be flown at Town Hall. Third, Plymouth has a practice of flying non-governmental flags in order to express a governmental message to the public. In the past, it has allowed the flying of military-related flags, such as the POW-MIA flag, as an expression of Town support and solidarity with the military community. Similarly, as confirmed by Select Board member Harry Helm, the flying of the Pride flag was done to convey the Town’s position of inclusiveness to the LGBTQ+ community, after several previous years denying such a request.
Given the Town’s history, it appears that it could establish that the flying of flags on Town owned flagpoles represent the position of the Town, and as such has regulated the message being conveyed by the flying of such flags. Accordingly, the Town could have legitimately argued that it is entitled to restrict which flags fly on its flagpoles. However, rather than potentially escalating the issue, as a compromise, the Select Board decided to allow a one-time exception, permitting the flying of the “Christian flag” for the week of November 21 (rather than the requested one month), after which no other flags would be permitted.