In heraldry, descriptions of flags are to be “most concise, . . . always minutely exact, definite, and explicit.”1×1. Charles Boutell, A Manual of Heraldry, Historical and Popular 14 (London, Winsor & Newton 1863). 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,”2×2. Pleasant Grove City v. Summum, 555 U.S. 460, 484 (2009) (Breyer, J., concurring). free speech doctrine quickly devolves into a dizzying series of standards. Last Term, in Shurtleff v. City of Boston,3×3. 142 S. Ct. 1583 (2022). 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.4×4. Lane Turner, Photograph of Boston City Hall Flagpoles, in Jeff Jacoby, Opinion, Does Free Speech Fly at City Hall Plaza?, Bos. Globe (Jan. 12, 2022, 3:00 AM), https://www.bostonglobe.com/2022/01/12/opinion/does-free-speech-fly-city-hall-plaza [https://perma.cc/MD63-BL4W]. The first flies the flag of the United States; the second, of Massachusetts.5×5. See Mass. Gen. Laws ch. 2, § 6 (2020). The first flagpole also flies the National League of Families Prisoner of War/Missing in Action flag. See Shurtleff v. City of Boston, 337 F. Supp. 3d 66, 70 (D. Mass. 2018). The third ordinarily flies Boston’s flag, but the City would sometimes replace it with that of a third party upon request.6×6. Shurtleff, 337 F. Supp. 3d at 70. 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.7×7. Shurtleff v. City of Boston, 986 F.3d 78, 83–84 (1st Cir. 2021). That streak ended when Camp Constitution applied to fly the Christian flag, a white field with a red Latin cross inside a blue canton.8×8. See Hal Shurtleff, Photograph of Christian Flag, in Petition for Writ of Certiorari app. at 132a, Shurtleff, 142 S. Ct. 1583 (No. 20-1800). 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.”9×9. Shurtleff, 337 F. Supp. 3d at 71; see id. at 69. Harold Shurtleff, cofounder of Camp Constitution, filed suit for declaratory and injunctive relief in the U.S. District Court for the District of Massachusetts.10×10. See id. at 69; Verified Complaint for Preliminary & Permanent Injunctive Relief, Declaratory Relief, and Damages ¶¶ 48–115, Shurtleff, 337 F. Supp. 3d 66 (No. 18-cv-11417), 2018 WL 3349059 [hereinafter Complaint]. He claimed, among other things, that Boston unconstitutionally impinged on private speech in a designated public forum and impermissibly discriminated against his religious viewpoints.11×11. See Complaint, supra note 10, ¶ 43. Additionally, Shurtleff alleged that Boston violated the Establishment and Equal Protection Clauses, see id. ¶¶ 64–81, as well as the coextensive provisions of the Massachusetts Declaration of Rights, see id. ¶¶ 82–115.
The district court denied Shurtleff’s motion for a preliminary injunction.12×12. Shurtleff, 337 F. Supp. 3d at 69. 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.13×13. Id. at 73. 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.14×14. See id. 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.15×15. Id. at 76.
The First Circuit affirmed.16×16. Shurtleff v. City of Boston, 928 F.3d 166, 169 (1st Cir. 2019). Writing for a unanimous panel, Judge Torruella17×17. Judge Torruella was joined by Judges Selya and Lynch. applied the three factors the Supreme Court outlined in Pleasant Grove City v. Summum18×18. 555 U.S. 460 (2009). and reaffirmed in Walker v. Texas Division, Sons of Confederate Veterans, Inc.19×19. 135 S. Ct. 2239 (2015). — (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.20×20. Shurtleff, 928 F.3d at 172. 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.21×21. Id. at 172–73, 173 n.4 (citing 4 U.S.C. § 7(m) (memorial half-staff practices); id. § 8(j) (declaration by Congress); Proclamation No. 2605, 9 Fed. Reg. 1957 (Feb. 22, 1944) (declaration by President Franklin D. Roosevelt), reprinted in 4 U.S.C. § 10 app. at 713–14, and in 58 Stat. 1126–27 (1944)) (discussing memorial half-staff practices, as well as declarations of the American flag’s symbolism by Congress and the President). 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.”22×22. Id. at 173–74. 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.23×23. Id. at 174 (quoting Summum, 555 U.S. at 471). 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.24×24. Id. Shurtleff had identified only fifteen instances of accepted flag-flying requests, yet the First Circuit later found 269. It reasoned that the lack of rejections pointed to self-selection and could not suggest that the City did not exercise meaningful control of its third flagpole. See Shurtleff v. City of Boston, 986 F.3d 78, 91–92 (1st Cir. 2021).
For substantially the same reasons, the district court granted the City’s motion for summary judgment,25×25. Shurtleff v. City of Boston, No. 18-cv-11417, 2020 WL 555248, at *4–6 (D. Mass. Feb. 4, 2020). which the First Circuit, with Judge Selya26×26. Judge Selya was joined by Judges Lynch and Lipez. writing for another unanimous panel, affirmed.27×27. Shurtleff, 986 F.3d at 98. Shurtleff petitioned the Supreme Court for a writ of certiorari, which it granted.28×28. Shurtleff, 142 S. Ct. at 1589.
The Supreme Court reversed.29×29. Id. at 1593; see id. at 1587. Writing for the Court, Justice Breyer30×30. Justice Breyer was joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh, and Barrett. assessed the Summum/Walker factors and found that “some evidence favors Boston, and other evidence favors Shurtleff.”31×31. Shurtleff, 142 S. Ct. at 1590. He suggested that the general history of flags, as symbols of civilizations, communities, and remembrance, often encompasses government speech.32×32. Id. at 1590–91. 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.33×33. Id. at 1591. 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.34×34. See id.
Ultimately, and most importantly, Justice Breyer looked to the lack of control Boston exercised over the flag-raising program as dispositive against the City.35×35. Id. at 1592. 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.36×36. Id. at 1592–93. To support this conclusion, Justice Breyer drew on Justice Alito’s opinion for the Court in Matal v. Tam, 137 S. Ct. 1744 (2017), which held that trademarks could not be considered government speech given that the Patent and Trademark Office is obliged to “register all manner of marks” and “normally [does] not consider their viewpoint.” Shurtleff, 142 S. Ct. at 1592. 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.37×37. Shurtleff, 142 S. Ct. at 1593.
Justice Kavanaugh briefly concurred to reiterate that the Constitution forbids the government from treating religious groups or speech as “second-class.”38×38. Id. at 1595 (Kavanaugh, J., concurring).
Justice Alito concurred in the judgment.39×39. Id. (Alito, J., concurring in the judgment). Justice Alito was joined by Justices Thomas and Gorsuch. 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.”40×40. Id. He argued that the Court had never established the Summum/Walker triad of factors as the exclusive test for deciding government-speech cases.41×41. Id. Taking each factor in turn, Justice Alito first suggested that control smacks of censorship as well as government speech.42×42. See id. at 1596 (“Censorship is not made constitutional by aggressive and direct application.”). 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.”43×43. Id. at 1596–97. 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.44×44. See id. at 1597.
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.45×45. Id. at 1598. Under this framework, Boston neither “indicate[d] an intent to communicate a message” nor “deputize[d] private speakers” to that end.46×46. Id. at 1601. As such, Justice Alito agreed with the Court’s conclusion that Boston’s actions amounted to impermissible viewpoint discrimination.47×47. Id. at 1603.
Justice Gorsuch concurred in the judgment as well, taking aim at the test developed in Lemon v. Kurtzman48×48. 403 U.S. 602 (1971), abrogated by Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022). used to analyze Establishment Clause claims.49×49. Shurtleff, 142 S. Ct. at 1603 (Gorsuch, J., concurring in the judgment). Justice Gorsuch was joined by Justice Thomas. 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.”50×50. Id. at 1604 (omission and final two alterations in original) (quoting Lemon, 403 U.S. at 612–13). 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.51×51. Id. at 1605. 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”52×52. Id. at 1610 (quoting Michael W. McConnell, No More (Old) Symbol Cases, 2018–2019 Cato Sup. Ct. Rev. 91, 107 (2019)). — and that simple fact offered better guidance to local officials than Lemon’s vague guidelines.53×53. See id.
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.54×54. See, e.g., Joseph Blocher, Viewpoint Neutrality and Government Speech, 52 B.C. L. Rev. 695, 711 (2011) (“[G]overnment speech doctrine recognizes either private or public speech, but not a hybrid of the two . . . .”); Caroline Mala Corbin, Mixed Speech: When Speech Is Both Private and Governmental, 83 N.Y.U. L. Rev. 605, 607 (2008). By cramming speech into private or public boxes, the test ignores the ubiquity of “mixed speech” — speech with both private and governmental components.55×55. See Corbin, supra note 54, at 607–08. Just as an overly capacious government-speech doctrine risks capturing private speech,56×56. See Caroline Mala Corbin, Essay, Government Speech and First Amendment Capture, 107 Va. L. Rev. Online 224, 226 (2021). an overly narrow one risks stymying public speech.57×57. See Corbin, supra note 54, at 656 (“[R]atcheting up First Amendment protection for speech that is not entirely private deprives the government of its ability to control its own messages.”). 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.58×58. Transcript of Oral Argument at 9, Shurtleff (No. 20-1800), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-1800_5426.pdf [https://perma.cc/NGM8-UJT7]. Boston now faces a pending request to fly the Satanic Temple’s flag on its third flagpole. See Nate Raymond, Satanic Temple Asks Boston to Fly Flag Following U.S. Supreme Court Ruling, Reuters (May 5, 2022, 2:16 PM), https://www.reuters.com/legal/government/satanic-temple-asks-boston-fly-flag-following-us-supreme-court-ruling-2022-05-05 [https://perma.cc/2G9E-9VTT]. The second is counterintuitive. To avoid violating the Free Speech Clause, Boston must issue stricter conditions on flag speech to showcase its control.59×59. See Shurtleff, 142 S. Ct. at 1596 (Alito, J., concurring in the judgment) (arguing that this control factor “flattens the distinction between government speech and speech tolerated by the censor”). 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.60×60. Id. at 1591 (majority opinion). But see Nicholas Goldberg, Opinion, Of Course You Can’t Fly a Banner with a Christian Cross on a Giant Flagpole Outside City Hall, L.A. Times (Jan. 4, 2022, 3:00 AM), https://www.latimes.com/opinion/story/2022-01-04/supreme-court-1st-amendment-boston-city-hall-flags [https://perma.cc/7TXC-LCG7] (“Most reasonable people would obviously see a flag flying there as an expression of government speech.”). 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.61×61. See Shurtleff, 142 S. Ct. at 1611 (appendix to opinion of Gorsuch, J., concurring in the judgment). But see id. (featuring inverse color schemes and different cross designs); cf. Boutell, supra note 1, at 25, 32 (depicting both elements in heraldic imagery). But such an observant onlooker might also recall that on the annually flown62×62. See Mass. Gen. Laws ch. 4, § 7 (2020) (commemorating June 17 as Bunker Hill Day in Suffolk County). 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.63×63. See William Rea Furlong & Byron McCandless, So Proudly We Hail: The History of the United States Flag 41 (1981) (“A pine tree, added to the first quarter of the canton, presumably helped to secularize the flag.”); cf. Mary-Rose Papandrea, The Government Brand, 110 Nw. U. L. Rev. 1195, 1214 (2016) (“Determining exactly who [the] reasonable observer is and what this person knows . . . is famously controversial.”). 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.64×64. Hal Shurtleff, Letter, Chinese Flag Raising “Slap in the Face to the City,” Wicked Loc. (Sept. 30, 2010, 11:06 PM), https://www.wickedlocal.com/story/transcript-tab/2010/09/30/letter-chinese-flag-raising-slap/38678227007 [https://perma.cc/5XWJ-AAK8] (“I was ashamed of Boston. What was once the Cradle of Liberty is now a Cradle of Oppression.”). 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.”65×65. Leslie Gielow Jacobs, The Public Sensibilities Forum, 95 Nw. U. L. Rev. 1357, 1358 (2001). Government-subsidized broadcasts, artwork, and services evoke private messages with public oversight, but the bounds of such oversight remain unclear.66×66. See, e.g., id. at 1383–84 (describing the limits to government selectivity as less certain when the venue is not a public forum); Alissa Ardito, Social Media, Administrative Agencies, and the First Amendment, 65 Admin. L. Rev. 301, 341 n.174 (2013) (“The Public Broadcasting System, or its employees, must engage in viewpoint discrimination every day in choosing its program schedule; likewise, the National Gallery, more accurately its curators, when selecting artworks.”). Public officials indeed contain multitudes,67×67. Cf. Walt Whitman, Song of Myself, in Leaves of Grass 28, 88 (Sculley Bradley & Harold W. Blodgett eds., W.W. Norton & Co. 1973) (1892). often speaking with a voice neither wholly public nor private.68×68. See Corbin, supra note 54, at 625; cf. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2424 (2022) (considering whether a public school football coach’s prayer on the field encompassed private religious exercise or government speech). 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.”69×69. Corbin, supra note 54, at 623. In such cases, the question is usually one of attribution rather than the identity of the speaker. See id. 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.70×70. See U.S. Digital Registry, Gen. Servs. Admin., https://usdigitalregistry.digitalgov.gov [https://perma.cc/82JW-4FTY] (select “Page Size” textbox, input any number, and press enter/return key to retrieve total results). Tweeting Presidents similarly pose classification headaches that have yet to be resolved71×71. See Knight First Amend. Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019), vacated as moot sub nom. Biden v. Knight First Amend. Inst. at Columbia Univ., 141 S. Ct. 1220 (2021) (mem.); see also Knight First Amend. Inst., 141 S. Ct. at 1221 (Thomas, J., concurring) (“[A]pplying old doctrines to new digital platforms is rarely straightforward.”); Recent Case, Campbell v. Reisch, 986 F.3d 822 (8th Cir. 2021), reh’g and reh’g en banc denied, No. 19-2994, 2021 BL 76260 (8th Cir. Mar. 3, 2021), 135 Harv. L. Rev. 1696, 1703 (2022) (“[T]he constitutional status of government officials’ social media behavior is becoming troublingly opaque.”). : Can blocking, reporting, and posting by @POTUS represent government speech if the account’s functionality ultimately lies with a private platform?72×72. See generally, e.g., Case Decision 2021-001-FB-FBR, Oversight Bd. (May 5, 2021), https://www.oversightboard.com/sr/decision/2021/001/pdf-english [https://perma.cc/98NA-TU2Y] (upholding President Trump’s suspension from Facebook); Permanent Suspension of @realDonaldTrump, Twitter: Blog (Jan. 8, 2021), https://blog.twitter.com/en_us/topics/company/2020/suspension [https://perma.cc/FG2Z-N2H7]. As social media expands in this domain,73×73. See Kat Devlin et al., Pew Rsch. Ctr., For Global Legislators on Twitter, An Engaged Minority Creates Outsize Share of Content 6–7 (2020), https://www.pewresearch.org/global/wp‑content/uploads/sites/2/2020/05/PG_05.18.20_globlegs_Full.Report.pdf [https://perma.cc/3NXE-HWQS] (documenting that every congressperson had a Twitter account at the time of the study, with about 86% tweeting weekly and 99% tweeting monthly). Compare NetChoice, LLC v. Att’y Gen., 34 F.4th 1196, 1231 (11th Cir. 2022) (finding provisions of Florida law regulating social media likely unconstitutional), with NetChoice, L.L.C. v. Paxton, No. 21-51178, 2022 WL 4285917, at *38–42 (5th Cir. Sept. 16, 2022) (parting with the Eleventh Circuit’s approach in finding similar Texas law constitutional). 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.74×74. See Pleasant Grove City v. Summum, 555 U.S. 460, 481 (2009) (Stevens, J., concurring) (describing government-speech doctrine as “recently minted”); Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting) (“The government-speech doctrine is relatively new, and correspondingly imprecise.”). 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.75×75. See Frederick Schauer, Towards an Institutional First Amendment, 89 Minn. L. Rev. 1256, 1263–64 (2005) (“The Court readily distinguishes incitement from advocacy, commercial speech from noncommercial speech, obscenity from indecency, public interest speech from personal interest speech, public forums from nonpublic forums and from ‘designated’ public forums, content-based from content-neutral regulations, and subject-matter from viewpoint-based discrimination.” (footnotes omitted)). 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,76×76. See, e.g., Texas v. Johnson, 491 U.S. 397, 418 (1989) (“We decline . . . to create for the flag an exception to the joust of principles protected by the First Amendment.”). assigning certain “nonjuridical” categories varying levels of First Amendment protection would all but guarantee unpredictability.77×77. See generally O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897) (“[T]o be a master of [law] means to look straight through all the dramatic incidents and to discern the true basis for prophecy.” Id. at 475.). Contra Frederick Schauer, The Supreme Court, 1997 Term — Comment: Principles, Institutions, and the First Amendment, 112 Harv. L. Rev. 84, 118 (1998) (“Holmes was wrong.”); see id. at 113–18 (explaining why). 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).78×78. Shurtleff, 142 S. Ct. at 1598 (Alito, J., concurring in the judgment). This imbalance contrasts with history’s outsized significance in other First Amendment cases this Term. See supra p. 329; infra p. 475. Fine-tuning the contextual weight of each factor suffers from the same arbitrariness as the categorical approach that Schauer champions and Justice Holmes derides.79×79. See Holmes, supra note 77, at 475 (“Applications of rudimentary rules of contract or tort are tucked away under the head of Railroads or Telegraphs . . . .”). 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.80×80. See Corbin, supra note 56, at 244. In such an analysis, a reviewing court would determine whether a speech restriction is “narrowly tailored to serve a significant government interest.”81×81. City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1475 (2022) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). 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.”82×82. Corbin, supra note 54, at 676. But see Ashutosh Bhagwat, The Test that Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence, 2007 U. Ill. L. Rev. 783, 831 (concluding that such a standard leads to unpredictable results and incoherent policy outcomes). 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-tall83×83. Shurtleff, 142 S. Ct. at 1588. flagpole, so too does social media often involve multiple parties — government and private alike — delivering (and, indeed, suppressing) speech.84×84. See also Lyrissa Lidsky, Public Forum 2.0, 91 B.U. L. Rev. 1975, 2012 (2011) (“Any forced choice between government speech and private speech will inevitably mislabel a portion of that conversation [on social media] and, consequently, apply the wrong constitutional standard in judging the government’s editorial decisions.”). And while “[d]eclaring these feeds government speech, subject to total government control, risks distorting the marketplace of political ideas,”85×85. Corbin, supra note 56, at 239. branding them private may well hamper government officials from communicating to their constituents on a channel “roughly on par with the printing press.”86×86. Found. for Individual Rts. & Expression, First Amendment Salon: “Trump, Twitter & the First Amendment,” YouTube, at 15:55 (Feb. 12, 2020), https://youtu.be/o73Qdnf-u54?t=955 [https://perma.cc/PQ6Z-MGPL] (remarks of Professor Noah Feldman). 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.87×87. See Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 45–46 (1983). Restrictions on nonpublic forums are permissible so long as they are viewpoint neutral and reasonable. Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 806 (1985). Corbin suggests that “forum doctrine implicitly recognizes that speech in a government forum is actually mixed speech.”88×88. Corbin, supra note 54, at 625. 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.89×89. See Steven G. Gey, Why Should the First Amendment Protect Government Speech When the Government Has Nothing to Say?, 95 Iowa L. Rev. 1259, 1295 (2010). 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.90×90. See id. at 1314. For a similar suggestion, see The Supreme Court, 2014 Term — Leading Cases, 129 Harv. L. Rev. 181, 229 (2015). The ubiquity of “Web 2.0,”91×91. Note, Badging: Section 230 Immunity in a Web 2.0 World, 123 Harv. L. Rev. 981, 981 (2010) (describing Web 2.0 as “the internet of blogs, of wikis, of user-generated reviews and information”). 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,92×92. City of Bos. (@CityOfBoston), Twitter (July 18, 2022, 1:42 PM), https://twitter.com/CityOfBoston/status/1549087317784027136 [https://perma.cc/UKY7-GE6X]. press conferences,93×93. City of Bos. (@CityOfBoston), Twitter (July 13, 2022, 10:30 AM), https://twitter.com/CityOfBoston/status/1547226856767766529 [https://perma.cc/6772-RQ87]. and COVID testing sites94×94. City of Bos. (@CityOfBoston), Twitter (July 11, 2022, 12:15 PM), https://twitter.com/CityOfBoston/status/1546528503713112068 [https://perma.cc/6E5B-8M2R]. 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.