In heraldry, descriptions of flags are to be “most concise, . . . always minutely exact, definite, and explicit.”1 The same cannot be said for the Free Speech Clause. A “jurisprudence of labels” involving categories such as “government speech,” “public forums,” “limited public forums,” and “nonpublic forums,”2 free speech doctrine quickly devolves into a dizzying series of standards. Last Term, in Shurtleff v. City of Boston,3 the Supreme Court concluded that Boston’s refusal to fly a religious flag violated the Free Speech Clause because its flag-flying program encompassed private rather than government speech. Yet speech cannot be so easily categorized as wholly private or public. By ignoring this reality, the Court missed an opportunity to recalibrate the government-speech test with the more appropriate standard of intermediate scrutiny, or discard it altogether.
Three flagpoles stand outside Boston City Hall.4 The first flies the flag of the United States; the second, of Massachusetts.5 The third ordinarily flies Boston’s flag, but the City would sometimes replace it with that of a third party upon request.6 From June of 2005 to June of 2017, the City approved all 284 requests to raise these flags, which represented countries, civic organizations, and secular causes.7 That streak ended when Camp Constitution applied to fly the Christian flag, a white field with a red Latin cross inside a blue canton.8 Rejecting the request, Boston’s Commissioner of Property Management explained that the City “maintains a policy and practice of respectfully refraining from flying non-secular flags on the City Hall flagpoles.”9 Harold Shurtleff, cofounder of Camp Constitution, filed suit for declaratory and injunctive relief in the U.S. District Court for the District of Massachusetts.10 He claimed, among other things, that Boston unconstitutionally impinged on private speech in a designated public forum and impermissibly discriminated against his religious viewpoints.11
The district court denied Shurtleff’s motion for a preliminary injunction.12 Judge Casper reasoned that the City’s flag flying constituted government speech, and it could therefore select which views to express without running afoul of the Free Speech Clause.13 Even if not government speech, she continued, the flag flying took place in a limited public forum, thereby requiring only a viewpoint-neutral, reasonable policy.14 The court found the City’s rejection to be both viewpoint neutral and reasonable, as it “exclude[d] religion as a subject matter, rather than as one perspective among many on other subjects” and reasonably sought to avoid Establishment Clause violations.15
The First Circuit affirmed.16 Writing for a unanimous panel, Judge Torruella17 applied the three factors the Supreme Court outlined in Pleasant Grove City v. Summum18 and reaffirmed in Walker v. Texas Division, Sons of Confederate Veterans, Inc.19 — (1) traditional usage of the conduct to express the government’s message, (2) the public’s likely perception of the speech, and (3) the government’s control over the speech — to assess whether Boston’s flag flying was government speech.20 He concluded that each factor strongly favored the City. First looking to history, Judge Torruella recounted the time-honored traditions of governments expressing messages through flags.21 Regarding public perception, he identified that a public observer “could well see a City employee lower the Boston flag and replace it with a third party’s flag.”22 Such a scene results in “‘little chance that observers will fail to appreciate the identity of the speaker’ as being the City,” the First Circuit concluded.23 Lastly, Judge Torruella determined that the City’s ownership of the flagpole and system of review established control sufficient to satisfy the third Summum/Walker factor.24
For substantially the same reasons, the district court granted the City’s motion for summary judgment,25 which the First Circuit, with Judge Selya26 writing for another unanimous panel, affirmed.27 Shurtleff petitioned the Supreme Court for a writ of certiorari, which it granted.28
The Supreme Court reversed.29 Writing for the Court, Justice Breyer30 assessed the Summum/Walker factors and found that “some evidence favors Boston, and other evidence favors Shurtleff.”31 He suggested that the general history of flags, as symbols of civilizations, communities, and remembrance, often encompasses government speech.32 Yet Justice Breyer emphasized that the Court “must examine the details of this flag-flying program” to deduce whether the City violated the Free Speech Clause.33 Looking to public perception, Justice Breyer determined that the circumstantial evidence was not dispositive. While passersby could see the three flags waving together as a unified government message, so too might they find private citizens conducting these flag-raising ceremonies without any city officials, which would tend toward private speech.34
Ultimately, and most importantly, Justice Breyer looked to the lack of control Boston exercised over the flag-raising program as dispositive against the City.35 While Boston handled scheduling, controlled the premises, and provided the hand crank, Justice Breyer concluded its lack of meaningful involvement in selecting flags required a classification of private speech.36 Because the City itself conceded that it rejected the request due solely to Establishment Clause concerns over its religious message, the Court held that Boston’s refusal to fly Camp Constitution’s flag amounted to impermissible viewpoint discrimination.37
Justice Kavanaugh briefly concurred to reiterate that the Constitution forbids the government from treating religious groups or speech as “second-class.”38
Justice Alito concurred in the judgment.39 He objected to the Court’s usage of the Summum/Walker factors, which, in his view, obfuscated the true question: “[W]hether the government is speaking instead of regulating private expression.”40 He argued that the Court had never established the Summum/Walker triad of factors as the exclusive test for deciding government-speech cases.41 Taking each factor in turn, Justice Alito first suggested that control smacks of censorship as well as government speech.42 Historical practice is also imperfect, Justice Alito explained, as “the real question is not whether a form of expression is usually linked with the government but whether the speech at issue expresses the government’s own message.”43 And he concluded that the public-perception factor encourages the government to funnel private speech it wishes to suppress into misleading forums that would cause the public to confuse private viewpoints for government speech.44
Instead, Justice Alito suggested that government speech occurs if and only if the government expresses its own message through authorized agents and does not abridge private speech.45 Under this framework, Boston neither “indicate[d] an intent to communicate a message” nor “deputize[d] private speakers” to that end.46 As such, Justice Alito agreed with the Court’s conclusion that Boston’s actions amounted to impermissible viewpoint discrimination.47
Justice Gorsuch concurred in the judgment as well, taking aim at the test developed in Lemon v. Kurtzman48 used to analyze Establishment Clause claims.49 He suggested that Boston’s error ultimately stemmed from its use of the Lemon test, a three-part inquiry regarding whether “the government ha[d] a secular purpose”; whether the “action advance[d] or inhibit[ed] religion”; and whether such action would “‘excessive[ly] . . . entangl[e]’ church and state.”50 This unclear test trapped “risk-averse local officials . . . in an ironic bind,” violating the Free Speech Clause for fear of violating the Establishment Clause, as here.51 At the Founding, he explained, “[n]o one . . . argu[ed] that the use of religious symbols in public contexts was a form of religious establishment”52 — and that simple fact offered better guidance to local officials than Lemon’s vague guidelines.53
Shurtleff demonstrates the unrealistic rigidity of the government-speech test, meriting a jurisprudential shift in free speech doctrine. Scholars have recognized that the bright line drawn between government and private speech is sometimes illusory.54 By cramming speech into private or public boxes, the test ignores the ubiquity of “mixed speech” — speech with both private and governmental components.55 Just as an overly capacious government-speech doctrine risks capturing private speech,56 an overly narrow one risks stymying public speech.57 Failing to recognize the middle ground of mixed speech allows judges to arbitrarily pick either pitfall. As mixed speech proliferates in virtual domains, the Shurtleff Court should have calibrated its government-speech doctrine to an alternative approach that adapts to this reality.
Though it defended Shurtleff’s freedom of speech, the Court functionally limited all forms of speech in its ruling. Boston now faces three choices: fly every flag, no matter how objectionable the City or its citizens find it; fly just a few flags, exercising increased selectivity over applications; or wave the metaphorical white flag and discontinue the program. The first invites chaos. As Justice Kagan noted at oral argument, opening the floodgates by granting every application would require “a swastika or a KKK flag” to fly alongside the star-spangled banner upon request.58 The second is counterintuitive. To avoid violating the Free Speech Clause, Boston must issue stricter conditions on flag speech to showcase its control.59 And the third eliminates the forum altogether. Whether Boston picks option two or three (it presumably will not pick option one), the ironic result is less speech altogether.
This irony originates from the threads of private speech and government speech intertwined in Boston’s flag-flying program. Justice Breyer conceded that the public might see flags as conveying the government’s message but that the regular exchange of flags made this factor ambiguous.60 Justice Gorsuch supplemented this point when comparing Boston’s divergent reactions to the Bunker Hill flag and Christian flag, which both bear red crosses in their cantons.61 But such an observant onlooker might also recall that on the annually flown62 Bunker Hill flag, a pine tree is planted in its upper-left corner. For such a keen observer, the foliage of the Bunker Hill flag, though emblazoned with a cross, potentially roots it in a secular context, thereby conveying a governmental message rather than a religious one.63 The plaintiff himself seemed to consider Boston’s flying of the Chinese flag to speak for the city, not for the private organization that requested it.64 The unpredictable public perception of Boston’s flags underscores the government-speech test’s inability to assess mixed speech.
The mixed speech that the Court is unprepared to recognize is, in fact, incredibly prevalent in our modern-day forums. Boston’s flagpole stands upon the “vast middle ground of government/private speech interaction.”65 Government-subsidized broadcasts, artwork, and services evoke private messages with public oversight, but the bounds of such oversight remain unclear.66 Public officials indeed contain multitudes,67 often speaking with a voice neither wholly public nor private.68 And connected to Boston’s tortured balance between the Free Speech and Establishment Clauses, “the Court’s [E]stablishment [C]lause jurisprudence acknowledges that both private individuals and the government can speak simultaneously — something the current free speech jurisprudence, with its ‘either-or’ approach, generally does not.”69 Furthermore, just as the government provides a platform for private actors in parks and city halls, the reverse holds true in cyberspace: federal agencies have created over six thousand social media accounts to date.70 Tweeting Presidents similarly pose classification headaches that have yet to be resolved71: Can blocking, reporting, and posting by @POTUS represent government speech if the account’s functionality ultimately lies with a private platform?72 As social media expands in this domain,73 the line between government and private speech becomes blurrier, increasing the need for the Court to clarify its oversimplified government-speech test.
Alternatives exist, especially for a doctrine as young as government speech.74 Professor Frederick Schauer, for instance, advocates for an institution-specific approach to questions of free speech, pointing to the Court’s variegated approach to other First Amendment categories.75 Applying his suggestion to Shurtleff, the Court might have concluded that flags, as a category, pose different free speech implications from license plates or monuments. Even disregarding its tension with long-standing jurisprudence,76 assigning certain “nonjuridical” categories varying levels of First Amendment protection would all but guarantee unpredictability.77 Contemplating the flaws of this hypothetical approach, however, reveals how the triad of factors in Shurtleff similarly falls short. As Justice Alito indicated, the Shurtleff majority’s “factorized analysis . . . cannot provide a principled way of deciding cases,” as it inexplicably weighed one factor (control) over two (history and public perception).78 Fine-tuning the contextual weight of each factor suffers from the same arbitrariness as the categorical approach that Schauer champions and Justice Holmes derides.79 Though it could theoretically avoid the public-private dichotomy that binds the current doctrine, an institutionally minded approach is unsuccessful principally because it mirrors the Shurtleff approach’s defects.
A more viable path would be to apply intermediate scrutiny, which would more properly balance Establishment Clause concerns with the implications of viewpoint discrimination than would a heavy-handed litmus test of identity or category.80 In such an analysis, a reviewing court would determine whether a speech restriction is “narrowly tailored to serve a significant government interest.”81 Professor Caroline Mala Corbin, who coined the term “mixed speech,” argues that “[i]ntermediate scrutiny shifts the inquiry from categorizing speech to examining the underlying values; it makes transparent the inevitable balancing of interests; and, as a consequence, it may improve the consistency of outcomes.”82 As applied to Shurtleff, the appearance of government endorsement along with the unavailability of less restrictive alternatives might have allowed Boston’s program to prevail. Or perhaps nothing would have changed. Boston’s Establishment Clause concerns might still have been unavailing in accordance with Justice Gorsuch’s concurrence. Regardless of the outcome, intermediate scrutiny would avoid the counterintuitive private-speech label in Shurtleff while requiring a more straightforward assessment of competing interests.
Not only would intermediate scrutiny have provided a more principled analysis to Shurtleff, but it also is much better suited to addressing the problems that social media creates for free speech doctrine. To be sure, Shurtleff concerned flags, not Facebook. But the case represented a rare analog example of mixed-speech concerns prolific in digital realms. Just as Boston’s policies obscured who was truly speaking from the heights of its eighty-three-foot-tall83 flagpole, so too does social media often involve multiple parties — government and private alike — delivering (and, indeed, suppressing) speech.84 And while “[d]eclaring these feeds government speech, subject to total government control, risks distorting the marketplace of political ideas,”85 branding them private may well hamper government officials from communicating to their constituents on a channel “roughly on par with the printing press.”86 Intermediate scrutiny breaks this mold. The standard would enable judges to transparently examine the interests of the government, its citizens, and the digital platform that hosts them both.
Alternatively, and rather nihilistically, it may be high time for the Court to strike the colors when it comes to the government-speech test. Forum doctrine, which follows after a finding of private speech under the government-speech test, subjects content restrictions in traditional and designated public forums to strict scrutiny.87 Corbin suggests that “forum doctrine implicitly recognizes that speech in a government forum is actually mixed speech.”88 Along similar lines, Professor Steven Gey argues that this overlap between the forum and government-speech doctrines permits the government to enter its own forums when it otherwise has nothing to say, gaining constitutional clearance to censor opposing voices.89 He therefore suggests minimizing the standard to identifying whether the government remains capable of communicating to the public, which, he says, effectively reduces the test to nothingness.90 The ubiquity of “Web 2.0,”91 however, belies his conclusion. Boston’s choice of fabric to fly probably does not impede its operations. But control over its Twitter account, from which it has announced public emergencies,92 press conferences,93 and COVID testing sites94 in the span of a week, is vital to aims of civic engagement and public safety. Properly accounting for these virtual networks would result in a doctrine that both avoids the public-private dichotomy that Shurtleff upholds and protects the government’s ability to communicate to its citizens.
The government-speech test required refurbishment or retirement, but the Supreme Court offered neither. Instead, it proceeded full steam ahead with the test, leaving lower courts and city administrators lost at sea as they navigate a still-unclarified doctrine. As the middle ground of mixed speech accretes, especially in light of developments in social media, the Court should tailor its approach with a standard that more accurately reflects the public and the government’s increasingly intertwined messaging.