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NO. 18-1898
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
HAROLD SHURTLEFF, and CAMP CONSTITUTION, a public charitable trust,
Plaintiffs-Appellants,
v.
CITY OF BOSTON, and GREGORY T. ROONEY, in his official capacity as
Commissioner of the City of Boston Property Management Division,
Defendants-Appellees.
Appeal from the United States District Court for the District of Massachusetts
Case No. 1:18-cv-11417-DJC
OPENING BRIEF OF PLAINTIFFS-APPELLANTS
Mathew D. Staver
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854
Phone: (407) 875-1776
Facsimile: (407) 875-0770
Email: [email protected]
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CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 26.1(a), Appellant Camp Constitution states that
it is a public charitable trust and that it has no parent corporation or public held
corporation that owns 10% or more of its stock.
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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT .......................................................... i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES .................................................................................... vi
STATEMENT IN SUPPORT OF ORAL ARGUMENT .......................................... x
JURISDICTIONAL STATEMENT .......................................................................... 1
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................. 1
STATEMENT OF THE CASE .................................................................................. 2
I. INTRODUCTION ........................................................................................... 2
II. FACTUAL BACKGROUND.......................................................................... 4
A. The City’s Designation of the City Hall Flag Poles as a Public
Forum. ................................................................................................... 4
1. The City’s Policies Designating the City Hall Flag Poles a
Public Forum. .............................................................................. 4
2. The City’s Practices Designating the City Hall Flag Poles a
Public Forum. .............................................................................. 5
B. The City’s Denial of Camp Constitution’s Application to Use the
City Hall Flag Poles Forum. .................................................................. 7
C. The City’s Unwritten Policy of Excluding “Non-Secular” Flags. ...... 10
D. The District Court’s Denial of Preliminary Injunction. ...................... 11
SUMMARY OF ARGUMENT ............................................................................... 12
ARGUMENT ........................................................................................................... 13
I. THE DISTRICT COURT’S ORDER DENYING PRELIMINARY
INJUNCTION SHOULD BE REVERSED BECAUSE PLAINTIFFS
ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR FIRST
AMENDMENT CLAIMS. ............................................................................ 14
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A. The District Court Erred in Concluding That Flags Flown by Private
Organizations on the City Hall Flag Poles Constitute Government
Speech.................................................................................................. 14
1. The City, by Explicit Policy and Practice, Intentionally
Created a Designated Public Forum on its City Hall Flag
Poles. ......................................................................................... 14
2. The Government’s Permitting Private Speech in Its
Designated Public Forum Does Not Transform That Speech
into Government Speech. .......................................................... 18
3. Neither Pleasant Grove nor Walker Support a Government
Speech Label for a Private Group’s Temporarily Raising Its
Own Flag. .................................................................................. 20
a. Pleasant Grove’s Permanent Monument Analysis Is
Inapposite to the Private Flags Periodically and
Temporarily Permitted on the City Hall Flag Poles. ...... 20
b. The Government Ownership and Control Elements in
Pleasant Grove and Walker Are Not Present for
Periodically Permitted Private Flags on the City Hall
Flag Poles. ....................................................................... 23
B. The District Court Erred in Its Alternative Holding That the City’s
Discriminatory Exclusion of Camp Constitution’s Speech Satisfies
First Amendment Forum Analysis. ..................................................... 25
1. Strict Scrutiny Applies to the City’s Exclusion of Camp
Constitution’s Speech Because the City Hall Flagpoles Are a
Designated Public Forum, Not a Limited Public Forum. ......... 25
a. A Limited Public Forum is Limited for a Purpose to
Certain Speakers or Certain Subjects. ............................ 25
b. The City Hall Flag Poles Are Open to All Applicants
and Subjects by Policy and Practice, Foreclosing
Classification as Limited Public Forum. ........................ 30
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2. The City’s Viewpoint-Based Discrimination Against Camp
Constitution’s Speech is Unconstitutional Under Any Forum
Analysis. .................................................................................... 31
3. The City’s Content-Based Discrimination Against Camp
Constitution’s Speech Cannot Survive Strict Scrutiny. ............ 33
a. It Is the City’s Burden to Demonstrate Its Speech
Restriction Satisfies Strict Scrutiny. ............................... 33
b. The Establishment Clause Does Not Provide Boston a
Compelling Interest to Censor Camp Constitution’s
Speech. ............................................................................ 35
c. The City’s Discriminatory Treatment of Camp
Constitution Is Otherwise Not Narrowly Tailored to
Serve any Compelling Interest. ...................................... 39
4. The City’s Exclusion of Camp Constitution’s Speech is
Unconstitutional Even Under the District Court’s Erroneous
Reasonable and Viewpoint Neutral Standard for Limited
Public Fora. ............................................................................... 40
C. The District Court Erred in Failing to Recognize That City’s Policies
and Practices Impermissibly Discriminate Against and Show
Hostility Towards Camp Constitution’s Religious Speech in
Violation of the Establishment Clause. ............................................... 43
D. The District Court Erred in Ignoring the Presumptively
Unconstitutional Prior Restraint Inherent in the City’s Unwritten
Forum Policy. ...................................................................................... 45
II. THE DISTRICT COURT’S ORDER SHOULD BE REVERSED
BECAUSE PLAINTIFFS ARE SUFFERING IRREPARABLE HARM. ... 48
III. THE DISTRICT COURT’S ORDER SHOULD BE REVERSED
BECAUSE THE BALANCE OF EQUITIES AND PUBLIC INTEREST
FAVOR INJUNCTIVE RELIEF. .................................................................. 49
CONCLUSION ........................................................................................................ 51
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT,
TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS .......... 52
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CERTIFICATE OF SERVICE ................................................................................ 53
ADDENDUM TO OPENING BRIEF OF PLAINTIFFS-APPELLANTS ........... A-i
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TABLE OF AUTHORITIES
Cases
Am. Freedom Def. Initiative v. King Cnty., Wash., 136 S. Ct. 1022 (2016) ........... 29
Am. Freedom Def. Initiative v. Mass. Bay Transp. Auth.,
781 F.3d 571 (1st Cir. 2015) ............................................................................... 18
Ams. United for Separation of Church & State v. City of Grand Rapids,
980 F.2d 1538 (6th Cir. 1992) ............................................................................ 37
Ark. Educ. Television Com'n v. Forbes, 523 U.S. 666 (1998) ................................. 15
Ark. Soc. of Freethinkers v. Daniels, No. 4:09cv00925SWW,
2009 WL 4884150, *3 (E.D. Ark. Dec. 16, 2009) ........................................ 19,20
Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett,
564 U.S. 721 (2011) ............................................................................................ 34
Ashcroft v. ACLU, 542 U.S. 656 (2004) ............................................................. 34,35
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) ............................................... 45
Bd. of Educ. of Westside Cmty. Schs. v. Mergens, 496 U.S. 226 (1990) ............ 37,44
Byrne v. Rutledge, 623 F.3d 46 (2d Cir. 2010) ........................................................ 43
Capital Square Rev. & Advisory Bd. v. Pinette,
515 U.S. 753 (1995) ........................................................................ 19,36,37,38,48
Child Evangelism Fellowship of Md., Inc. v. Montgomery Cnty. Pub. Schs.,
373 F.3d 589 (4th Cir. 2004) .............................................................................. 37
Child Evangelism Fellowship of Minn. v. Minn. Special Sch. Dist. No. 1,
690 F.3d 996 (8th Cir. 2012) .............................................................................. 37
Child Evangelism Fellowship of N.J., Inc. v. Stafford Twp. Sch. Dist.,
386 F.3d 514 (3d Cir. 2004) ............................................................................... 37
Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five,
470 F.3d 1062 (4th Cir. 2006) ............................................................................ 37
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Church on the Rock v. City of Albuquerque, 84 F.3d 1273 (10th Cir. 1996) ..... 18,37
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) ................. 50
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) ...................... 47
Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62 (1st Cir. 2009) ......................... 14
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,
473 U.S. 788 (1985) ........................................................................ 15,16,26,27,29
Elrod v. Burns, 427 U.S. 347 (1976) ............................................................. 48,49,51
Epperson v. Arkansas, 393 U.S. 97 (1968) .............................................................. 44
Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123 (1992) ...................... 45,46,47
Freedman v. Maryland, 380 U.S. 51 (1965) ............................................................ 45
Freedom From Religion Found. v. Weber, 628 F. App’x 952 (9th Cir. 2015) ....... 19
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) ........................................ 46,47
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418 (2006) ............................................................................................ 34
Good News Club v. Milford Cent. Sch. Dist.,
533 U.S. 98 (2001) .....................................................................33,35,36,37,38,42
Hobbie v. Unemployment Appeals Com., 480 U.S. 136 (1987) ......................... 43,44
Int’l Soc’y for Krisna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) ................. 16
Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.,
508 U.S. 384, 394 (1993) ..................................................................... 31,37,42,43
Leathers v. Medlock, 499 U.S. 439 (1991) ......................................................... 48,49
Lubavitch of Ga. v. Miller, 5 F.3d 1383 (11th Cir. 1993) ....................................... 37
Lynch v. Donnelly, 465 U.S. 668 (1984) ................................................................. 43
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Maceira v. Pagan, 649 F.2d 8 (1st Cir. 1981) ......................................................... 49
Machesky v. Bizzell, 414 F.2d 283 (5th Cir. 1969) .................................................. 51
Matal v. Tam, 137 S. Ct. 1744 (2017) ............................................18,19,25,28,29,31
McCreary Cnty. v. ACLU of Ky., 545 U.S. 844 (2005) ........................................... 44
McGuire v. Reilly, 386 F.3d 45 (1st Cir. 2004) ....................................................... 31
Miller v. City of Cincinnati, 622 F.3d 524 (6th Cir. 2010) ...................................... 16
Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018) .......................... 26,31
NAACP v. Button, 371 U.S. 415 (1963) ................................................................... 39
N.Y. Times Co. v. U.S., 403 U.S. 713 (1971) ........................................................... 48
Peck v. Upshur Cnty. Bd. of Educ., 155 F.3d 274 (4th Cir. 1998) .......................... 37
Perry Educ. Ass’n v. Perry Local Educators Ass’n,
460 U.S. 37 (1983) ............................................................................... 15,27,28,29
Pleasant Grove City v. Summum, 555 U.S. 460 (2009) .................20,21,22,23,24,33
Prince v. Jacoby, 303 F.3d 1074 (9th Cir. 2002)..................................................... 37
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ....................................................... 33
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ............................................... 33,34
Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65 (1st Cir. 2004) ........................ 16,18
Robb v. Hungerbeeler, 370 F.3d 735 (8th Cir. 2004) .............................................. 19
Rosenberger v. Rector & Visitors of the Univ. of Va.,
515 U.S. 819 (1995) ........................................................ 19,28,31,36,37,40,41,42
Saia v. People of State of N.Y., 334 U.S. 558 (1948) .............................................. 47
Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203 (1963) ........................ 44
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Schneider v. State, 308 U.S. 147 (1939) .................................................................. 48
Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd.,
502 U.S. 105 (1991) ....................................................................................... 48,49
Sindicato Puertorriqueno de Trabajadores v. Fortuno,
699 F.3d 1 (1st Cir. 2012) .................................................................... 14,49,50,51
Sorrell v. IMS Health, 131 S. Ct. 2653 (2011) ........................................................ 31
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) ........................... 34
United Veterans Memorial & Patriotic Ass’n of the City of New Rochelle v. City
of New Rochelle, 615 F. App’x 693 (2d Cir. 2015) ....................................... 22,23
Waldron v. George Weston Bakeries Inc., 570 F.3d 5 (1st Cir. 2009) ............... 13,14
Walker v. Texas Div., Sons of Confederate Veterans, Inc.,
135 S. Ct. 2239 (2015) .................................................................... 20,22,23,24,25
Wallace v. Jaffree, 472 U.S. 38 (1985) .................................................................... 48
Wandering Dago, Inc. v. Destito, 879 F.3d 20 (2d Cir. 2018) ................................ 19
Watchtower Bible & Tract Soc’y of N.Y. v. Vill. of Stratton,
536 U.S. 150 (2002) ....................................................................................... 45,46
Widmar v. Vincent, 454 U.S. 263 (1981) ................................................................. 37
Statutes
28 U.S.C. § 1292 ........................................................................................................ 1
28 U.S.C. § 1331 ........................................................................................................ 1
28 U.S.C. § 2201 ........................................................................................................ 1
28 U.S.C. § 2202 ........................................................................................................ 1
Constitutional Provisions
U.S. Const. amend. I .........................................................................................passim
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STATEMENT IN SUPPORT OF ORAL ARGUMENT
Pursuant to Fed. R. App. P. 34(a), Appellants respectfully request that oral
argument be permitted in this appeal because it would assist the Court in
understanding and deciding the weighty constitutional issues presented by the City
of Boston’s discriminatory treatment of Appellants’ constitutionally protected
expression in a designated public forum.
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JURISDICTIONAL STATEMENT
This Court has jurisdiction over the instant appeal pursuant to 28 U.S.C.
§ 1292(a)(1) because the district court refused to grant Appellants’ requested
preliminary injunction. The district court had jurisdiction over this matter pursuant
to 28 U.S.C. §§ 1331 and 2201–2202.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
(1) Whether the district court erred in holding that the expression of private
organizations through raising their flags on the City Hall Flag Poles, designated by
the City as a public forum, constitutes government speech.
(2) Whether the district court erred in holding that a prohibition against the
religious speech of private organizations in a designated public forum is not
unconstitutional viewpoint discrimination.
(3) Whether the district court erred in holding that a content-based
restriction on the speech of private organizations in a designated public forum need
not satisfy strict scrutiny.
(4) Whether the district court erred in holding that the City would violate
the Establishment Clause by granting access to a private organization’s religious
speech on equal terms with a similarly situated organization’s non-religious speech
in the City’s designated public forum.
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(5) Whether the district court erred in ignoring the presumptively
unconstitutional prior restraint inherent in the City’s application and permit process
for accessing the City’s designated public forum at the City Hall Flag Poles.
STATEMENT OF THE CASE
“Where possible, the Office of Property and Construction Management
seeks to accommodate all applicants
seeking to take advantage of the City of Boston’s public forums.”1
I. INTRODUCTION
Consistent with its mission, Camp Constitution2 requested access to the City
of Boston’s designated public fora to hold an event for Boston’s citizens to celebrate
and enhance their understanding of the cultural, intellectual, and economic
contributions of Boston’s Christian community to the country, the Commonwealth
of Massachusetts, and the City of Boston, as well as religious tolerance, the Rule of
Law, and the United States Constitution. Camp Constitution believes that these
principles together have given the nation an unprecedented history of growth and
prosperity, and it requested access to the City’s designated public fora in order to
engage in its constitutionally protected expression to motivate, inspire, and activate
this generation of Patriots and the next. As part of its celebration and expression,
1 V. Compl. ¶ 35 & Ex. H, J.A. at JA11–12 & JA46–48 (emphasis added). 2 Appellant Camp Constitution and its principal, Appellant Harold Shurtleff, to
the extent Shurtleff was acting on behalf of Camp Constitution, will be referred to
collectively herein as “Camp Constitution.”
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Camp Constitution requested access to the City’s designated public fora—City Hall
Plaza for the event itself, and the adjacent City Hall Flag Poles for raising a symbolic
Christian flag over the event. The City denied Camp Constitution that opportunity.
Instead of recognizing that the religious speech of private organizations in a
designated public forum is entitled to robust First Amendment protection, the City
rendered Camp Constitution and its religious speech constitutional orphans. The
City’s only rationale was that the flags of private organizations that the City permits
to be flown on the City Hall Flag Poles constitute government speech, and that
granting equal access to a flag of religious expression would violate the
Establishment Clause. While the district court countenanced these absurd
contentions, this Court must reject the City’s constitutional sleight of hand. Camp
Constitution has suffered, is suffering, and will continue to suffer immediate,
immeasurable, and irreparable harm to its cherished constitutional freedoms until
the City’s unconstitutional policies and actions are enjoined. The district court’s
decision should be reversed.
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II. FACTUAL BACKGROUND
A. The City’s Designation of the City Hall Flag Poles as a Public
Forum.
1. The City’s Policies Designating the City Hall
Flag Poles a Public Forum.
The City has established written policies, a written application process, and a
consistent practice allowing private expression on unlimited topics at various City-
owned venues. The City’s policies and practices open these venues as designated
public fora for private expression.
The City has made available designated public spaces for citizens to engage
in First Amendment activities upon obtaining a permit, including Faneuil Hall,
Samuel Adams Park, City Hall Plaza, City Hall Lobby, City Hall Flag Poles, and
North Stage. (V. Compl. ¶ 33, JA10.3) The City has established written policies for
use of these public spaces and has posted the policies on its website, City of Boston,
How to Hold an Event Near City Hall, https://www.boston.gov/departments/
property-management/how-hold-event-near-city-hall (last visited January 9, 2019).
(Id. ¶ 34, JA10–11.) On its written application form, identifying the City Hall Flag
Poles and other public venues by name, the City states:
Where possible, the Office of Property and Construction
Management seeks to accommodate all applicants
3 Page references to documents in the Joint Appendix are hereinafter referenced
by Joint Appendix page number alone (e.g., “JA10”).
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seeking to take advantage of the City of Boston’s public
forums. To maximize efficient use of these forums and
ensure the safety and convenience of the applicants and
the general public, access to these forums must be
regulated.
(Id. ¶ 35, JA11–12 (emphasis added).)
Thus, on its own written application form, the City (1) expressly designates
the City Hall Flag Poles and other named venues as “public forums,” and (2) publicly
announces the City’s explicit intention to make such “public forums” available to
“all applicants.” (Id.)
2. The City’s Practices Designating the City Hall
Flag Poles a Public Forum.
Consistent with its explicit naming of the City Hall Flag Poles within its
designated “public forums” and its explicit intention to make them available to “all
applicants,” the City continually has permitted a host of organizations to raise their
flags on the City Hall Flag Poles for their public events, including ethnic and other
cultural celebrations, the arrival of dignitaries from other countries, the
commemoration of independence or other historic events in other countries, or the
celebration of certain causes such as “gay pride.” (V. Compl. ¶ 37, JA13–14.) The
City has issued permits for flag raisings for the countries of Albania, Brazil,
Ethiopia, Italy, Panama, Peru, Portugal, Puerto Rico, Mexico, as well as the People’s
Republic of China and Cuba, as well as for the flags of the private Chinese
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Progressive Association, National Juneteenth Observance Foundation, Bunker Hill
Association, and Boston Pride. (Id.)
The Commissioner of the City’s Property Management Department, Appellee
Rooney, who is tasked with overseeing the City’s designated public fora, also
admitted in sworn testimony that the City has opened up the City Hall Flag Poles
forum to a broad swath of private organizations and speech. (Aff. Gregory T. Rooney
(“Rooney Aff.”) ¶ 10, JA63) (providing examples of flags permitted to fly on City
Hall Flag Poles, including “geographical flags, the LGBT rainbow flag, the
transgender rights flag, and the Juneteenth flag recognizing the end of slavery”)
Most – though not all – of these flags did not contain religious symbolism or
imagery.
The City, however, also has granted access to the flag pole forum for flags
containing explicit religious imagery and symbolism. (V. Compl. ¶ 36 & Ex. I,
JA12–13 & JA49–50 (describing announcement on City website for Portuguese-
American festival, including raising flag displaying overt religious symbolism, such
as five blue dots symbolizing “the five wounds of Christ when crucified” and thirty
dots “represent[ing] the coins Judas received for having betrayed Christ”); id. ¶ 41.b
& Ex. K, JA14–15 & JA58 (noting City permitted flying of Bunker Hill Flag
commemorating Revolutionary War Battle of Bunker Hill and Bunker Hill Day,
which flag includes religious imagery of red St. George’s Cross on white canton in
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blue field); see also id. ¶ 41.a & Ex. J, JA14–15 & JA51–53, and Rooney Aff. ¶ 8,
JA63) (noting regularly displayed City of Boston flag includes Latin inscription
“SICUT PATRIBUS, SIT DEUS NOBIS,” meaning “God be with us as he was with
our fathers”).)
B. The City’s Denial of Camp Constitution’s Application to Use
the City Hall Flag Poles Forum.
In connection with the 2017 observance of Constitution Day and Citizenship
Day, Camp Constitution desired to conduct an event on City Hall Plaza close in time
to September 17, 2017, to commemorate the civic and social contributions of the
Christian community to the City, the Commonwealth of Massachusetts, religious
tolerance, the Rule of Law, and the U.S. Constitution, which event would include
the raising of a symbolic Christian flag on one of the City Hall Flag Poles continually
open to other groups. (V. Compl. ¶ 24, JA7.) On July 28, 2017, Camp Constitution
followed its customary practice for obtaining permits from the City for free speech
activities by contacting City official Lisa Lamberti by telephone, and then by e-mail
at her request, and requesting a permit—
to raise the Christian Flag on City Hall Plaza. Here are a
few potential dates:
Thursday the 7th of September 10:00.--11:00AM
Thursday the 14th of September 10:00 AM-11:00 or
Saturday September 23--10:00 AM-11:00 AM.
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It will be sponsored by Camp Constitution. We will have
short speeches by some local clergy focusing on Boston’s
history.
(Id. ¶ 24 & Ex. A, JA7 & JA29) Camp Constitution included a picture of the
Christian flag it proposed to raise on the City Hall Flag Poles. (Id.) In appearance,
the Christian flag is essentially a color-reversed image of the Bunker Hill flag
allowed by the City to be raised on Bunker Hill Day. (Compare JA40 with JA58.)
On August 8, 2017, Camp Constitution sent an e-mail to Lamberti to follow
up on its permit request. (V. Compl. ¶ 25 & Ex. B, JA8 & JAJA30–31.) Lamberti
responded the same day, writing, “I am just waiting for the approval from my bosses
I just sent them another e-mail.” (Id.) On August 18, 2017, Camp Constitution sent
another e-mail inquiry checking on the status of its application and followed up with
a phone call. (Id. ¶¶ 26–27 & Ex. B, JA8 & JA30.) Camp Constitution was instructed
to call Lamberti’s boss if it did not hear back from Lamberti in one day, and Camp
Constitution called the number provided by Lamberti. (Id. ¶ 27, JA8.) Camp
Constitution communicated with an individual in the City’s property management
department, who initially advised Camp Constitution that he thought the permit was
already issued, that the person responsible for issuing the permit was on vacation,
and that the official would get back to Camp Constitution following the Labor Day
holiday. (Id.) On September 5, 2017, Lamberti sent an e-mail to Camp Constitution
advising that the permit had been denied. (Id. ¶ 28 & Ex. C, JA8 & JA32.)
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On September 6, 2017, Camp Constitution requested information as to why
the permit had been denied. (Id.) On September 8, 2017, Camp Constitution received
the following e-mail from Appellee Rooney:
I am writing to you in response to your inquiry as to the
reason for denying your request to raise the “Christian
Flag”. The City of Boston maintains a policy and
practice of respectfully refraining from flying non-
secular flags on the City Hall flagpoles. This policy and
practice is consistent with well-established First
Amendment jurisprudence prohibiting a local government
from “respecting an establishment of religion.” This
policy and practice is also consistent with City’s legal
authority to choose how a limited government resource,
like the City Hall flagpoles, is used.
According to the above policy and practice, the City of
Boston has respectfully denied the request of Camp
Constitution to fly on a City Hall flagpole the
“Christian” flag, as it is identified in the request, which
displays a red Latin cross against a blue square bordered
on three sides by a white field.
The City would be willing to consider a request to fly a
non-religious flag, should your organization elect to offer
one.
(Id. ¶ 29 & Ex. D, JA8–9 & JA33 (emphasis added).)
On or about September 13, 2017, Camp Constitution submitted to the City a
written City Hall and Faneuil Hall Event Application, requesting use of City Hall
Plaza and the City Hall Flag Poles for the event “Camp Constitution Christian Flag
Raising,” and proposing dates of October 19, 2017 or October 26, 2017. (V. Compl.
¶ 30 & Ex. E, JA9–10 & JA34.) Camp Constitution described the event as follows:
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Celebrate and recognize the contributions Boston’s
Christian community has made to our city’s cultural
diversity, intellectual capital and economic growth. The
Christian flag is an important symbol of our country’s
Judeo-Christian heritage. During the flag raising at the
City Hall Plaza, Boston recognizes our Nation’s heritage
and the civic accomplishments and social contributions of
the Christian community to the Commonwealth of
Massachusetts, religious tolerance, the Rule of Law, and
the U.S. Constitution, which together gave our Nation an
unprecedented history of growth and prosperity. The event
program includes a speech by Rev. Steve Craft, an
instructor at Camp Constitution on the need for racial
reconciliation, a speech by Pastor William Levi, formerly
of the Sudan, on the blessings of religious freedom in the
U.S. and an historical overview of Boston by Hal
Shurtleff, director of Camp Constitution.
(Id.) On September 14, 2017, Camp Constitution’s counsel sent a letter to Boston
Mayor Martin J. Walsh, with copies to other City officials, enclosing the completed
Event Application and requesting that the City approve the application on or before
September 27, 2017. (Id. ¶ 31 & Ex. F, JA10 & JA35–JA41.) The letter further
explained the constitutional problems with the City’s denial of Camp Constitution’s
request. (Id.) The City did not respond to either Camp Constitution’s second permit
request or the letter from Camp Constitution’s counsel. (Id. ¶ 32, JA10.)
C. The City’s Unwritten Policy of Excluding “Non-Secular”
Flags.
The only written policies provided by the City to applicants for permits to use
the City’s designated public fora are the permit criteria on its website and the
additional rules on its printed permit application form. (V. Compl. ¶¶ 33–38 & Exs.
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G, H, JA10–JA14 & JA42–48.) Despite the City’s email to Camp Constitution
stating that it has a policy of excluding “non-secular flags” (i.e., a “no religious
speech” policy), the City had no published or otherwise written policy containing
such a rule, having only the published policies applicable to all events staged at the
City’s designated public fora. (Id. ¶ 39.) Specifically, there was no written policy
supporting the City’s statement that “the City of Boston maintains a policy and
practice of respectfully refraining from flying non-secular flags on the City Hall
flagpoles,” nor any written policy authorizing or directing the City to offer applicants
an alternative of flying a “non-religious” flag. (Id. ¶¶ 39–40.) Instead, the City
denied Camp Constitution’s application in reliance on an unwritten policy vesting
unbridled discretion in Appellee Rooney to deny private speech not “consistent with
the City’s message, policies, and practices.” (See Rooney Aff. ¶ 17, JA64 (emphasis
added); Mem. & Order Den. Pls.’ Mot. Prelim. Inj. (“Order”) at A-34 (same).)
D. The District Court’s Denial of Preliminary Injunction.
On August 8, 2018, the district court entered an order denying Camp
Constitution’s motion for preliminary injunction. (Order at A-1.) In its decision, the
district court concluded that Camp Constitution did not demonstrate a likelihood of
4 The district court’s Memorandum and Order denying Plaintiffs’ Motion for
Preliminary Injunction (the “Order”) is contained in the Addendum to Opening Brief
of Plaintiffs-Appellants, infra, and is referenced by Addendum page number, such
as “A-3.”
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success on the merits because the flags of private groups flown on the City Hall Flag
Poles “constitute government speech.” (Id. at A-7.) In the alternative, the district
court concluded that even if the flags raised by private organizations were private
speech, the City’s restriction of religious speech was permissible for a limited public
forum under the First Amendment because it was viewpoint neutral and necessary
for the City to avoid violating the Establishment Clause.5 (Id. at A-12.) The district
court also concluded Plaintiffs were not likely to succeed on the merits of their Equal
Protection claims because the City was justified in treating Camp Constitution’s
application differently from the applications of other private groups. (Id. at A-14 to
A-16.) Camp Constitution timely filed the instant appeal.
SUMMARY OF ARGUMENT
The district court’s holding that the private speech of private organizations
granted access to a government-designated public forum magically transforms into
government speech upon approval of a permit is plainly in error. Mere government
permission for private expression in a public forum does not make the speech
government speech. The district court’s holding that the City’s discriminatory
treatment of religious speech survives First Amendment scrutiny is also in error for
5 The district court misapprehended Appellants’ principal assertion that the City
Hall Flag Poles constitute a designated public forum, leading the court to embark on
a (nonetheless erroneous) “limited public forum” analysis. (See infra, Argument,
Part I.B.)
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several reasons: (1) the City’s viewpoint-based restrictions on Camp Constitution’s
speech are impermissible in any forum; (2) the City’s policies and actions created a
designated public forum on City Hall Flag Poles, and content-based restrictions on
speech in such a forum are subject to strict scrutiny; (3) granting equal access to
religious speech in a designated public forum (or even in a limited public forum)
does not violate the Establishment Clause; (4) the City’s hostile and discriminatory
policy and actions restricting only religious speech from an otherwise available
public forum violate the Establishment Clause; and (5) the City’s unwritten policy
and actions represent a presumptively unconstitutional prior restraint.
Moreover, the district court’s holding that Camp Constitution could not
demonstrate irreparable harm from being denied equal access to the City’s
designated public forum at City Hall Flag Poles ignores entrenched First
Amendment precedent, that the loss of constitutional rights for even minimal periods
of time constitutes irreparable harm.
Finally, the district court erred in finding that an injunction would harm the
public interest and that the balance of equities favored the City.
ARGUMENT
This court reviews the denial of a preliminary injunction for abuse of
discretion, scrutinizing the district court's findings of fact for clear error and its legal
conclusions de novo. See Waldron v. George Weston Bakeries Inc., 570 F.3d 5, 8
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(1st Cir. 2009). The familiar four factors on which the propriety of a preliminary
injunction depend are “(i) the likelihood that the movant will succeed on the merits;
(ii) the possibility that, without an injunction, the movant will suffer irreparable
harm; (iii) the balance of relevant hardships as between the parties; and (iv) the effect
of the court's ruling on the public interest.” Coquico, Inc. v. Rodriguez-Miranda, 562
F.3d 62, 66 (1st Cir. 2009). Where the injunction is requested to vindicate First
Amendment Free Speech rights, “the likelihood of success on the merits is the
linchpin of the preliminary injunction analysis.” Sindicato Puertorriqueno de
Trabajadores v. Fortuno, 699 F.3d 1, 10 (1st Cir. 2012). Under this framework, this
Court should reverse the district court’s denial of the preliminary injunction
requested by Camp Constitution.
I. THE DISTRICT COURT’S ORDER DENYING PRELIMINARY
INJUNCTION SHOULD BE REVERSED BECAUSE PLAINTIFFS
ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR FIRST
AMENDMENT CLAIMS.
A. The District Court Erred in Concluding That Flags Flown by
Private Organizations on the City Hall Flag Poles Constitute
Government Speech.
1. The City, by Explicit Policy and Practice,
Intentionally Created a Designated Public
Forum on its City Hall Flag Poles.
Contrary to Supreme Court and First Circuit precedent, the district court
categorized as government speech the public expression of private organizations
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accessing the City Hall Flag Poles, which the City has designated a public forum.
(Order at A-7.) That decision was plainly in error.6
“[T]he Court [has] identified three types of fora: the traditional public forum,
the public forum created by government designation, and the nonpublic forum.”7
Ark. Educ. Television Com'n v. Forbes, 523 U.S. 666, 677 (1998) (alterations in
original) (internal quotation marks omitted). “Designated public fora . . . are created
by purposeful government action.” Id. The government creates a designated public
forum “by intentionally opening a nontraditional forum for public discourse.”
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985).
To determine whether a designated public forum has been opened, courts look
to the “policy and practice of the government to ascertain whether it intended to
6 The relevant forum for the Court’s forum analysis depends on the access
sought by the speaker. See, e.g., Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,
473 U.S. 788, 801 (1985) (“[I]n defining the forum we have focused on the access
sought by the speaker.”); Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460
U.S. 37, 45–46 (1983) (determining relevant forum by access sought by speaker).
Camp Constitution sought to raise its flag on the City Hall Flag Poles while
conducting an event at City Hall Plaza, as numerous other organizations have done.
(V. Compl. ¶ 24, JA7 (alleging Plaintiffs requested access to City Hall Flag Poles);
id. ¶ 30, JA9–10 (same).) The City denied the requested flag raising on the Flag
Poles. (Id. ¶¶ 28–29, JA8–9.) Thus, the City Hall Flag Poles are the relevant forum
for the Court’s forum analysis, and the Court must examine the City’s intentions,
policies, and practices relating thereto to properly characterize the forum. 7 In Part I.B, infra, Camp Constitution addresses the hybrid “limited public
forum” on which the district court centered its erroneous forum analysis. (Order at
A-10 to A-13.)
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designate a place not traditionally open to assembly and debate as a public forum”
and have “also examined the nature of the property and its compatibility with
expressive activity to discern the government's intent.” Id. This Court teaches that
determining whether the government intended to create a designated public forum
requires courts to “consider both the explicit expressions about intent and the
policy and practice of the government.” Ridley v. Mass. Bay Transp. Auth., 390
F.3d 65, 76 (1st Cir. 2004) (emphasis added). All considerations evidence the City’s
intentional designation of the City Hall Flag Poles as a public forum.
The City’s policy, embodied in its official rules and application forms,
contains explicit expressions of the City’s intent to designate several City-owned
venues as fora for expression by the public at large. (V. Compl. ¶¶ 33–35 & Exs. G–
H, JA10–12 & JA42–48.) See Int’l Soc’y for Krisna Consciousness, Inc. v. Lee, 505
U.S. 672, 678 (1992) (defining designated public forum as “property that the State
has opened for expressive activity by part or all of the public”); Miller v. City of
Cincinnati, 622 F.3d 524, 534 (6th Cir. 2010) (“The government creates a designated
public forum when it opens a piece of public property to the public at large, treating
as if it were a traditional public forum.”) The City’s written application form and
guidelines, referring by name to the City Hall Flag Poles, explicitly state that the
City “seeks to accommodate all applicants seeking to take advantage of the City
of Boston’s public forums.” (Id. ¶ 35 & Ex. H, JA11–12 & JA46–48 (emphasis
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added).) The only limitations on the City’s explicit all-comers policy are safety and
financial conditions, such as obtaining the requisite insurance and foregoing
dangerous or illegal activities. (Id. ¶¶ 34–35 & Exs. G–H, JA10–12 & JA42–48.)
The City could not have more explicitly designated the City Hall Flag Poles and
other named venues for expression by the public at large.
Reinforcing the City’s written policies explicitly expressing the City’s intent
to create a designated public forum on the City Hall Flag Poles, the City’s consistent,
actual practice puts the matter beyond doubt. The record demonstrates the City puts
its all-comers policy into practice by permitting a host of organizations, with widely
diverse purposes and viewpoints, to raise their flags on the City Hall Flag Poles for
their public events. (See supra Statement of the Case Part II.A.2; V. Compl. ¶ 36,
JA12–13 (reciting announcement of Portuguese-American festival and flag-raising
on City website, including description of religious symbols on flag); id. ¶ 37
(recounting City’s permitting private organizations to raise their flags on City Hall
Flag Poles celebrating numerous countries, groups, and events); Rooney Aff. ¶ 10,
JA63 (providing, through sworn testimony of Appellee Rooney, examples of flags
permitted to fly on City Hall Flag Poles, including “geographical flags, the LGBT
rainbow flag, the transgender rights flag, and the Juneteenth flag recognizing the end
of slavery”). Such a practice of opening up the City Hall Flag Poles for the public to
engage in wide-ranging expression is conclusive evidence the City intended to create
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a designated public forum.8 See Church on the Rock v. City of Albuquerque, 84 F.3d
1273, 1278 (10th Cir. 1996) (classifying city-owned senior center as designated
public forum because city permitted expression on “broad range of subjects” by
public “evidenced by the long list of diverse topics that have been presented”).
2. The Government’s Permitting Private Speech in
Its Designated Public Forum Does Not
Transform That Speech into Government
Speech.
The district court’s determination (Order at A-7 to A-10) that a private
organization’s expression on the City Hall Flag Poles is government speech is
foreclosed by Supreme Court precedent. To be sure, “while the government-speech
doctrine is important—indeed, essential—it is a doctrine that is susceptible to
dangerous misuse. If private speech could be passed off as government speech
by simply affixing a government seal of approval, government could silence or
muffle the expression of disfavored viewpoints.” Matal v. Tam, 137 S. Ct. 1744,
8 Although Boston is “free to decide in good faith to close the forum at any
time,” Ridley, 390 F.3d at 77, there is nothing in the record before the Court
indicating the City has done so. Appellee Rooney’s suddenly saying the City Hall
Flag Poles are not a public forum in response to Camp Constitution’s application is
legally insufficient given the City’s unequivocal practice. See Am. Freedom Def.
Initiative v. Mass. Bay Transp. Auth., 781 F.3d 571, 580 (1st Cir. 2015) (“[A]
governmental actor's stated intent cannot determine the nature of the forum in the
face of countervailing actions by that actor.”); Ridley, 390 F.3d at 77 (“[A] statement
of intent contradicted by consistent actual policy and practice would not be enough
to support the [government’s] argument.”).
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1758 (2017) (emphasis added); see also, e.g., Rosenberger v. Rector & Visitors of
the Univ. of Va., 515 U.S. 819 (1995) (distinguishing speech of private student
organization from government speech despite private organization’s receiving
government fees and access to government-created public forum for private
expression); Capital Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753 (1995)
(distinguishing speech of private organization from government speech although
government permitted group to access government-created forum for expression).
Courts across the country likewise have recognized the error of categorizing
the private speech of private organizations as government speech merely because
the government provides a forum or grants a permit. See, e.g., Wandering Dago, Inc.
v. Destito, 879 F.3d 20, 34 (2d Cir. 2018) (“[S]peech that is otherwise private does
not become speech of the government merely because the government provides
a forum for the speech or in some ways allows or facilitates it.” (emphasis
added)); Freedom From Religion Found. v. Weber, 628 F. App’x 952, 955 (9th Cir.
2015) (Smith, J., concurring) (“[T]he allowance of private speech on public property
does not necessarily turn the private speech into government speech”); Robb v.
Hungerbeeler, 370 F.3d 735, 744–745 (8th Cir. 2004) (holding adopt-a-highway
signs displaying applicant’s name not government speech though created and placed
by state at applicant’s request); Ark. Soc. of Freethinkers v. Daniels, No.
4:09cv00925SWW, 2009 WL 4884150, *3 (E.D. Ark. Dec. 16, 2009) (holding
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“temporary display that is owned, possessed, maintained, and installed by a private
group” to be private speech although displayed on public property by permit).
Put simply, the government’s mere granting of a permit for a private group to
speak in a government-designated public forum does not make the permitted speech
government speech. Acceptance of the district court’s contrary conclusion would
radically transform the Supreme Court’s forum doctrine.
3. Neither Pleasant Grove nor Walker Support a
Government Speech Label for a Private Group’s
Temporarily Raising Its Own Flag.
a. Pleasant Grove’s Permanent
Monument Analysis Is Inapposite to
the Private Flags Periodically and
Temporarily Permitted on the City
Hall Flag Poles.
In reaching the erroneous conclusion that private expression on the City Hall
Flag Poles is government speech, the district court relied primarily upon Pleasant
Grove City v. Summum, 555 U.S. 460 (2009), and Walker v. Texas Div., Sons of
Confederate Veterans, Inc., 135 S. Ct. 2239 (2015). (Order at A-9.) That reliance
was misplaced. Neither Pleasant Grove nor Walker supports a holding that the ad
hoc permitted speech of a private organization in a designated public forum is
government speech.
The district court’s slapdash treatment of Pleasant Grove ignored the actual
question presented in the case, which appears in the opinion’s first sentence: “This
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case presents the question whether the Free Speech Clause of the First Amendment
entitles a private group to insist that a municipality permit it to place a permanent
monument in a city park in which other donated monuments were previously
erected.” 555 U.S. at 464 (emphasis added). The Supreme Court rejected the First
Amendment claim because, it said, “the placement of a permanent monument in a
public park is best viewed as a form of government speech.” Id. (emphasis added).
This was so because “[i]t is certainly not common for property owners to open up
their property for the installation of permanent monuments that convey a message
with which they do not wish to be associated.” Id. at 471 (emphasis added). Thus,
the permanent nature of the proposed monument was critical to the Court’s
rejection of the argument that the City had created a forum for private expression by
accepting placement of a limited number of other permanent monuments. Id. at 478–
79.
The Pleasant Grove Court rejected the contention that permanent monuments
are akin to the delivery of speeches or a march or parade. Id. at 473. The Court
reasoned that while, as a public forum, “a park can accommodate many speakers
and, over time, many parades and demonstrations,” it “can accommodate only a
limited number of permanent monuments.” Id. at 478–79. The Court reasoned
further:
Speakers, no matter how long-winded, eventually come to
the end of their remarks; persons distributing leaflets and
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carrying signs at some point tire and go home;
monuments, however, endure. They monopolize the use of
the land on which they stand and interfere permanently
with other uses of public space. A public park, over the
years, can provide a soapbox for a very large number of
orators—often, for all who want to speak—but it is hard
to imagine how a public park could be opened up for the
installation of permanent monuments by every person or
group wishing to engage in that form of expression.
Id. at 479 (emphasis added).
In Walker the Court confirmed the importance of the permanence of the
monuments at issue in Pleasant Grove. The Walker Court stated: “[I]n [Pleasant
Grove], we emphasized that monuments were ‘permanent’ and we observed that
‘public parks can accommodate only a limited number of permanent
monuments.’” 135 S. Ct. at 2249 (emphasis added). “We believed that the speech
at issue was government speech . . . in part because we found it ‘hard to imagine
how a public park could be opened up for the installation of permanent monuments
by every person or group . . . .’” Id. (emphasis added). This central issue of
permanence was wholly ignored by the court below.
The district court’s reliance on United Veterans Memorial & Patriotic Ass’n
of the City of New Rochelle v. City of New Rochelle, 615 F. App’x 693 (2d Cir.
2015), is likewise misplaced. There, the flags at issue were more akin to permanent
monuments because “United Veterans’ flags are displayed for long periods of time
(until they become tattered) and then promptly replaced [such that] their presence
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at the Armory is nearly as constant as that of the park monuments in [Pleasant
Grove].” United Veterans, 72 F. Supp. 3d at 475. Thus, as was true in Pleasant
Grove, the permanence of flags translates them into government speech, not their
mere placement on government property.
On the Boston City Hall Flag Poles, there is no such permanence for the flags
permitted to be raised by private groups under the City’s express policies and
consistent actual practice. As admitted by Appellee Rooney, private organizations
“[a]t times” have been permitted to raise “substitute flags” on the City Hall Flag
Poles upon request, “[o]ften . . . in connection with a proposed event.” (Rooney
Aff. ¶¶ 8–11, JA63 (emphasis added).) A “substitute” flag raised in connection with
a finite, permitted public event is necessarily temporary. Pleasant Grove’s concern
that the public forum doctrine cannot be applied to permanent displays is not
implicated by a temporary raising of a private flag.
b. The Government Ownership and
Control Elements in Pleasant Grove
and Walker Are Not Present for
Periodically Permitted Private Flags
on the City Hall Flag Poles.
The district court also heavily relied on Pleasant Grove and Walker for its
notion that the City “effectively controlled” the private flags permitted on the City
Hall Flag Poles. (Order at A-9.) But that reliance, too, is misplaced.
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In Pleasant Grove, the government “took ownership of the monument,” “[a]ll
rights previously possessed by the monument’s donor [were] relinquished,” and the
government maintained all the permanent monuments placed in the park. 555 U.S.
at 473. The be sure, a private group’s raising their flag for a day to complement their
one-off event at City Hall is very much like the speech, march, or parade that the
Pleasant Grove Court said government speech permanent monuments were not like.
555 U.S. at 473.
In Walker, the government exercised all aspects of ownership over the
specialty license plates at issue. 135 S. Ct. at 2244. Texas prepared the designs of
the specialty plates, id., owned the designs on all specialty plates, id. at 2248, and
was responsible for manufacturing and distributing the plates. Id. Texas actively
exercised its control over its license plates by rejecting at least a dozen proposed
specialty designs. Id. at 2249. In addition, Texas dictated the manner in which its
drivers must dispose of the plates, requiring that the plates be returned to the state.
Id. Moreover, all Texas license plates, which are required for all vehicles, are
“primarily used as a form of government ID,” and bear the state’s name. Id. at 2251.
Furthermore,
The flags belonging to and temporarily raised by private organizations on the
City Hall Flag Poles bear no resemblance to the vehicle license plates designed,
manufactured, distributed, and owned by Texas. Boston does not require that private
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organizations requesting to raise a flag surrender ownership and control of the flag
to the City or relinquish all rights to the flag design. The City neither designs,
manufactures, nor puts its name on the flag. And there is no record before the Court
of any actual rejection for content of a proposed flag raising under the City’s express
“all applicants” policy, except for the novel denial of Camp Constitution’s flag
raising. Thus, none of the Pleasant Grove and Walker marks of “effective control”
indicating government speech are present in the policies or practices governing
Boston’s designated public forum at its City Hall Flag Poles.
The Supreme Court has said Walker “marks the outer bounds of the
government speech doctrine.” Matal, 137 S. Ct. at 1760 (emphasis added). This
Court should restore the government speech boundary breached by the district
court’s unguided excursion.
B. The District Court Erred in Its Alternative Holding That the
City’s Discriminatory Exclusion of Camp Constitution’s
Speech Satisfies First Amendment Forum Analysis.
1. Strict Scrutiny Applies to the City’s Exclusion of
Camp Constitution’s Speech Because the City
Hall Flagpoles Are a Designated Public Forum,
Not a Limited Public Forum.
a. A Limited Public Forum is Limited
for a Purpose to Certain Speakers or
Certain Subjects.
The district court committed further error in its alternative holding that the
City’s denial of Camp Constitution’s flag raising, even if private speech, was
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constitutional under the seemingly less exacting First Amendment analysis for a
limited public forum. (Order at A-10 to A-13.) The court erred in applying this
analysis to the City’s speech restriction because, as shown in Argument Part I.A.1,
supra, the City Hall Flag Poles are a designated public forum.9 Under the proper
designated public forum analysis, “restrictions based on content must satisfy strict
scrutiny, and those based on viewpoint are prohibited.” Minnesota Voters Alliance
v. Mansky, 138 S. Ct. 1876, 1885 (2018); Cornelius, 473 U.S. at 800 (same).
The court below not only improperly chose the limited public forum analysis,
but also banished the designated public forum classification from its forum analysis
altogether. According to the district court, the “[t]hree types of fora under First
9 The district court was less than half right in stating “Plaintiffs assert that the
City has designated the flagpole as a limited public forum . . . .” (Order at A-11.)
While it is true that Camp Constitution used the hybrid term “limited public forum”
passingly to refer to the City Hall Flag Poles four times in its Memorandum of Law
in Support of Plaintiffs’ Motion for Preliminary Injunction (Dist. Ct. Doc. 8 at 2, 6,
8, 14), Camp Constitution explicitly asserted the “designated public forum”
classification in every section (id. at 1, 2, 7, 10, 13, 18), including in the very
introduction of Camp Constitution’s claims (id. at 1 (“Defendants have violated
Plaintiffs’ speech . . . rights . . . by denying Plaintiffs the right to access the City’s
designated public fora . . . .”). Moreover, Camp Constitution uses the term
“designated public forum” exclusively to refer to the Flag Poles in the Verified
Complaint (V. Compl. ¶¶ 1, 2, 19, 33, 38, 39, 43, 44, 46, 49–51, 68, 83–85, 102 &
Prayer for Relief A(1), (3), B(1), (3), C(2)(d), JA2, JA5, JA10, JA14–17, JA18–26),
and in Plaintiffs’ Motion for Preliminary Injunction (Pls.’ Mot. Prelim. Inj. at JA60).
Furthermore, at the preliminary injunction hearing, Camp Constitution argued that
the City failed both the designated and the limited public forum tests. (Tr. at 5:5–13,
6:24–7:18, 18:6–19:3, JA84–86, JA97–98.) Thus, the district court’s perseveration
on the “limited public forum” classification is not justified.
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Amendment jurisprudence,” are the traditional public forum, the nonpublic forum,
and, in between, the limited public forum. (Order at A-10 to A-11.) This calculus at
best forgets, and at worst avoids, the designated public forum classification, despite
its prominence in Camp Constitution’s papers (see supra note 9) and the Supreme
Court’s seminal Perry Educ. Ass’n decision. See, e.g., Cornelius, 473 U.S. at 802
(“[In Perry Educ. Ass’n] the Court identified three types of fora: the traditional
public forum, the public forum created by government designation, and the
nonpublic forum.” (emphasis added)).
The Perry Educ. Ass’n Court not only defined the designated public forum as
“public property which the state has opened for use by the public as a place for
expressive activity,” 460 U.S. at 45 (emphasis added), but also instructed that
designated public fora are “bound by the same standards as apply in a traditional
public forum,” namely strict scrutiny for content-based restrictions. Id. at 46. But the
Court also described a sub-classification within the designated public forum: “A
public forum may be created for a limited purpose such as use by certain groups .
. . or for the discussion of certain subjects.” 460 U.S. at 46 n.7 (emphasis added)
(citations omitted). The Court did not, however, relax the standards applicable to
regulation of speech in such a “limited purpose” public forum.
Then, perhaps confusingly, the Perry Educ. Ass’n Court used similar “limited
purpose” language in explaining the kinds of permissible speech restrictions in a
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nonpublic forum: “In addition to time, place, and manner regulations, the state may
reserve the [nonpublic] forum for its intended purposes, communicative or
otherwise, as long as the regulation on speech is reasonable and not an effort to
suppress expression merely because public officials oppose the speaker's view.” Id.
at 46. These principles of permissible speech regulation in limited purpose,
nonpublic fora have been developed further into a “limited forum” analysis:
The necessities of confining a forum to the limited and
legitimate purposes for which it was created may justify
the State in reserving it for certain groups or for the
discussion of certain topics. Once it has opened a limited
forum, however, the State must respect the lawful
boundaries it has itself set. The State may not exclude
speech where its distinction is not reasonable in light of
the purpose served by the forum, nor may it discriminate
against speech on the basis of its viewpoint.
Rosenberger, 515 U.S. at 829 (emphasis added) (citations and internal quotation
marks omitted). Subsequent Courts have applied this “limited forum” analysis to a
hybrid classification of “limited public forum,” apparently combining some aspects
of the Perry Educ. Ass’n “limited purpose” public forum and the similarly limited in
purpose nonpublic forum:
Potentially more analogous are cases in which a unit of
government creates a limited public forum for private
speech. When government creates such a forum, in either
a literal or “metaphysical” sense, some content- and
speaker-based restrictions may be allowed. However, even
in such cases, what we have termed “viewpoint
discrimination” is forbidden.
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Matal, 137 S. Ct. at 1763 (emphasis added) (citations omitted); see also Cornelius,
473 U.S. at 802 (collapsing Perry Educ. Ass’n sub-classification of “limited
purpose” public forum into description of designated public forum: “a public forum
may be created by government designation of a place or channel of communication
for use by the public at large for speech or assembly, for use by certain speakers,
or for the discussion of certain subjects.” (emphasis added))). Thus, the consistent
characteristic of the “limited purpose” public forum or “limited public forum” is a
purposeful limitation of expression to certain speakers or certain subjects.
The general upshot of this progression of “limited” public and nonpublic
forum classifications is that “[d]istinguishing between designated and limited public
forums has proved difficult.” Am. Freedom Def. Initiative v. King Cnty., Wash., 136
S. Ct. 1022 (2016) (Thomas, J., dissenting from denial of cert.). Ultimately,
however, it need not be difficult in the instant case because the City’s viewpoint
discrimination against Camp Constitution is prohibited no matter what classification
is used (see infra Part I.B.2), the only classification that fits the City Hall Flag Poles
is designated public forum, ensuring that strict scrutiny applies (see supra,
Argument, Part I.A; infra Part I.B.1.b), and the City’s exclusion of Camp
Constitution’s speech is unconstitutional under the district court’s limited forum
analysis in any event (see infra Part I.B.4).
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b. The City Hall Flag Poles Are Open
to All Applicants and Subjects by
Policy and Practice, Foreclosing
Classification as Limited Public
Forum.
The written policies and consistent practice of the City forecloses
classification of the City Hall Flag Poles as a limited public forum. The policies
expressly invite “all applicants” to use “Boston’s public forums” without reference
to any limitation of speakers or subjects.10 (V. Compl. ¶ 35, JA11–12.) The City’s
actual and consistent practice likewise shows no limitation of speakers or subjects.
(See supra Statement of the Case Part II.A.2.) And there is no evidence in the City’s
written policies, the Rooney Affidavit, or the City’s practices of any purpose for
designating the Flag Poles a public forum other than for “all applicants’” expression,
and certainly no purpose to be served by censoring religious expression, especially
given Appellee Rooney’s admission that “[r]eligious events . . . have regularly
occurred” at the City’s public forums covered by the written policies. (Rooney Aff.
¶ 19, JA64.) Finally, the Flag Pole venue’s inherent practical limitation of medium—
flags— impose no inherent limitation of speaker or subject matter translating the
designated public forum into a limited public forum. Thus, the Flag Poles are equal
10 Apart from fiscal and safety conditions, the only qualifier to the City’s all-
comers invitation, that “all applicants” will be accommodated “[w]here possible,”
implies only logistical limitations, and does not even suggest any subject matter or
speaker limitation.
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partners with Boston’s other “public forums” open to “all applicants” according to
Boston’s written policies and actual, consistent practice.
2. The City’s Viewpoint-Based Discrimination
Against Camp Constitution’s Speech is
Unconstitutional Under Any Forum Analysis.
Viewpoint-based restrictions on speech are unconstitutional whether in a
designated or limited public forum. See Minnesota Voters Alliance 138 S. Ct. at 1885
(designated public forum); Matal, 137 S. Ct. at 1763 (limited public forum). Indeed,
a viewpoint-based restriction on private speech has never been upheld by the
Supreme Court or any court. Thus, a finding of viewpoint discrimination is
dispositive. See Sorrell v. IMS Health, 131 S. Ct. 2653, 2667 (2011). “It is axiomatic
that the government may not regulate speech based on its substantive content or the
message it conveys.” Rosenberger, 515 U.S. at 828. “When the government targets
not subject matter, but particular views taken by speakers on a subject, the violation
of the First Amendment is all the more blatant.” Id. at 829. In fact, viewpoint-based
regulations are always unconstitutional. See, e.g., Lamb’s Chapel v. Ctr. Moriches
Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (“The principle that has emerged
from our cases ‘is that the First Amendment forbids the government to regulate
speech in ways that favor some viewpoints or ideas at the expense of others.’”);
McGuire v. Reilly, 386 F.3d 45, 62 (1st Cir. 2004) (same).
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The City plainly has discriminated against Camp Constitution for its religious
viewpoint. The supposed, unwritten policy, first communicated by the City after
denying Camp Constitution’s application, facially discriminates against “non-
secular”—i.e., “Christian” or religious—flags. (V. Compl. ¶ 29, JA8–9; Rooney Aff.
¶¶ 21–22, JA64–65.) As applied to Camp Constitution, its viewpoint discrimination
comes into sharp focus. The policy allows the Bunker Hill Association to raise a red
Christian cross over its event commemorating the Battle of Bunker Hill’s place in
Boston’s history (V. Compl. ¶ 41.b, JA13–14), and allows the raising of a
Portuguese flag symbolizing Jesus’ betrayal and death over an event celebrating the
“Portuguese community’s importance” to Massachusetts and “pay[ing] solemn
homage to Portugal and the Portuguese emigrant community” (id. ¶ 36 & Ex. I,
JA12–13 & JA49–50), but forbids Camp Constitution to raise a red Christian cross
over its event celebrating the importance of the Christian community to Boston and
Massachusetts, featuring “speeches on Boston’s history” and “the need for racial
reconciliation.” The policy thus disfavors Camp Constitution’s viewpoint on what
and whose contributions to Boston’s history and community are worth celebrating,
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while allowing others to express their viewpoints on the same subject. This
viewpoint discrimination is unconstitutional under any forum analysis.11
3. The City’s Content-Based Discrimination
Against Camp Constitution’s Speech Cannot
Survive Strict Scrutiny.
a. It Is the City’s Burden to
Demonstrate Its Speech Restriction
Satisfies Strict Scrutiny.
As shown, Boston excluded Camp Constitution’s private speech from the
City’s designated public forum because of the flag’s religious content. (See supra,
Statement of the Case, Part II.B.) Thus, the district court erred in holding that strict
scrutiny does not apply. (Order at A-11 & n.4.) To the contrary, Boston’s
exclusionary policy must satisfy the same strict scrutiny applicable to a traditional
public forum. See Pleasant Grove, 555 U.S. at 479. “Content-based laws—those that
target speech on its communicative content—are presumptively unconstitutional and
may be justified only if the government proves that they are narrowly tailored to
serve compelling government interests.” Reed v. Town of Gilbert, 135 S. Ct. 2218,
2226 (2015); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992) (same).
This firm rule applies regardless of Boston’s alleged purpose in enacting the policy.
11 Though Boston has no legitimate Establishment Clause concern with Camp
Constitution’s flag (see infra Part I.B.3), no case has held that such a concern would
justify viewpoint discrimination. See Good News Club v. Milford Cent. Sch. Dist.,
533 U.S. 98, 112–13 (2001).
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Reed, 135 S. Ct. at 2227. “A law that is content based on its face is subject to strict
scrutiny regardless of the government’s benign motive, content-neutral justification,
or lack of animus toward the ideas contained in the regulated speech.” Id. at 2228.
“In other words, an innocuous justification cannot transform a facially content-based
law into one that is content neutral.” Id.
Binding Supreme Court precedent holds that the City bears the burden of
proof on strict scrutiny. See, e.g., United States v. Playboy Entm’t Grp., Inc., 529
U.S. 803, 816 (2000) (“When the Government restricts speech, the Government
bears the burden of proving the constitutionality of its actions.”); id. at 2540 (“To
meet the requirement of narrow tailoring, the government must demonstrate that
alternative measures that burden substantially less speech would fail to achieve the
government’s interests, not simply that the chosen route is easier” (emphasis
added)); Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734
(2011) (“Laws that burden political speech are accordingly subject to strict scrutiny,
which requires the Government to prove that the restriction furthers a compelling
state interest and is narrowly tailored to achieve that interest” (emphasis added)
(citations omitted)). The City’s burden is the same on a motion for preliminary
injunction because “the burdens at the preliminary injunction stage track the
burdens at trial.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546
U.S. 418, 429 (2006) (emphasis added); see also Ashcroft v. ACLU, 542 U.S. 656,
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665 (2004) (“When plaintiffs challenge a content-based restriction, the burden is
on the government to prove that the proposed alternatives will not be as effective
as the challenged statute.” (emphasis added)). The City cannot meet its burden.
b. The Establishment Clause Does Not
Provide Boston a Compelling
Interest to Censor Camp
Constitution’s Speech.
The City belatedly invoked the Establishment Clause to justify denying Camp
Constitution’s application. (V. Compl. ¶ 29, JA8–9.) The district court approved,
concluding that allowing equal access to Camp Constitution’s flag “may well violate
the Establishment Clause.” (Order at A-12 to A-14.) The district court’s conclusion
is in error because allowing Camp Constitution’s religious speech in “Boston’s
public forums” on the same terms as “all applicants” cannot violate the
Establishment Clause.
The Supreme Court leaves open the possibility “that a state interest in
avoiding an Establishment Clause violation ‘may be characterized as compelling,’
and therefore may justify content-based discrimination.” Good News Club v. Milford
Cent. Sch. Dist., 533 U.S. 98, 112 (2001) (emphasis added). Merely wanting not to
violate the Establishment Clause, however, is not enough. There is no compelling
interest justifying a content-based restriction if allowing the excluded speech would
not violate the Establishment Clause. See id. (“We need not, however, confront the
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issue in this case, because we conclude that the [government] has no valid
Establishment Clause interest.”).
The Establishment Clause states that “Congress shall make no law respecting
an establishment of religion.” U.S. Const. amend. I. “By its terms that Clause applies
only to the words and acts of government. It was never meant, and has never been
read by [the Supreme] Court, to serve as an impediment to purely private religious
speech connected to the State only through its occurrence in a public forum.” Pinette,
515 U.S. at 767.
As the Supreme Court teaches,
a significant factor in upholding governmental programs
in the face of an Establishment Clause attack is their
neutrality towards religion. . . . [T]he guarantee of
neutrality is respected, not offended, when the
government, following neutral criteria and evenhanded
policies, extends benefits to recipients whose ideologies
and viewpoints, including religious ones, are broad and
diverse. . . . More than once we have rejected the position
that the Establishment Clause even justifies, much less
requires, a refusal to extend free speech rights to religious
speakers who participate in broad-reaching governmental
programs neutral in design.
Rosenberger, 515 U.S. at 839 (emphasis added).
Put simply, “[r]eligious expression cannot violate the Establishment
Clause where it (1) is purely private and (2) occurs in a traditional or designated
public forum, publicly announced and open to all on equal terms.” Pinette, 515 U.S.
at 770 (emphasis added). Camp Constitution’s purely private speech, if allowed in
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the designated public forum of the City Hall Flagpoles, which is open to “all
applicants” according to the City’s written policies and consistent practice, “cannot
violate the Establishment Clause.”12
The district court employed a version of the Supreme Court’s “endorsement
test” in concluding that allowing Camp Constitution to raise its flag “may well
violate the Establishment Clause.” (Order at A-13 to A-14.) But the district court
ignored the critical consideration that “the endorsement test necessarily focuses upon
12 The Supreme Court’s mandate that granting equal access to private religious
speech in a forum otherwise available for private speech cannot violate the
Establishment Clause is unblemished. See, e.g., Good News Club, 533 U.S. at 114
(holding private religious organization’s equal access to public school forum not
Establishment Clause violation); Rosenberger, 515 U.S. at 842 (holding religious
student organization’s equal access to public forum not Establishment Clause
violation); Lamb’s Chapel, 508 U.S. at 395-96 (holding religious organization’s
equal access to public school forum not Establishment Clause violation); Widmar v.
Vincent, 454 U.S. 263, 275 (1981) (holding religious student group’s equal access at
public university not Establishment Clause violation); Bd. of Educ. of Westside
Cmty. Schs. v. Mergens, 496 U.S. 226 (1990) (holding not Establishment Clause
violation to permit equal treatment of religious speech and non-religious speech in
otherwise available forum); Pinette, 515 U.S. at 764. So, too, is precedent throughout
the circuit courts. See, e.g., Child Evangelism Fellowship of N.J., Inc. v. Stafford
Twp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004); Peck v. Upshur Cnty. Bd. of Educ.,
155 F.3d 274 (4th Cir. 1998); Child Evangelism Fellowship of Md., Inc. v.
Montgomery Cnty. Pub. Schs., 373 F.3d 589 (4th Cir. 2004); Child Evangelism
Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062 (4th Cir. 2006); Ams.
United for Separation of Church & State v. City of Grand Rapids, 980 F.2d 1538
(6th Cir. 1992); Child Evangelism Fellowship of Minn. v. Minn. Special Sch. Dist.
No. 1, 690 F.3d 996 (8th Cir. 2012); Prince v. Jacoby, 303 F.3d 1074 (9th Cir. 2002);
Church on the Rock v. City of Albuquerque, 84 F.3d 1273 (10th Cir. 1996);
Lubavitch of Ga. v. Miller, 5 F.3d 1383 (11th Cir. 1993).
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the perception of a reasonable, informed observer.” Pinette, 515 U.S. at 772–73
(O’Connor, J., concurring in part and concurring in the judgment). “[T]he reasonable
observer in the endorsement inquiry must be deemed aware of the history and
context of the community and the forum in which the religious display occurs.” Id.
at 779–780; cf Good News Club, 533 U.S. at 119 (endorsing J. O’Connor’s
endorsement test). No reasonable observer, informed of the City’s written policies
inviting “all applicants” to its “public forums,” and the City’s actual and consistent
practice of allowing a broad spectrum of groups to raise their flags on the City Hall
Flag Poles on a temporary event basis, would conclude that the City endorsed
Christianity or religion by granting Camp Constitution equal access.
Indeed, the Supreme Court would “find it peculiar to say that government
‘promotes’ or ‘favors’ a religious display by giving it the same access to a public
forum that all other displays enjoy. And, as a matter of Establishment Clause
jurisprudence, [the Court has] consistently held that it is no violation for
government to enact neutral policies that happen to benefit religion.” Pinette,
515 U.S. at 763–64 (emphasis added).
The Establishment Clause provides no justification for suppressing the
religious content of Camp Constitution’s speech in Boston’s “public forums”
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otherwise open to “all applicants.” The district court’s contrary conclusion must be
reversed.13
c. The City’s Discriminatory
Treatment of Camp Constitution Is
Otherwise Not Narrowly Tailored to
Serve any Compelling Interest.
The Establishment Clause provides no compelling interest to justify the city’s
censoring Camp Constitution’s religious speech, and no other interest has been
identified. This absence of a compelling (or any) interest is the end of the strict
scrutiny road for Boston, for no interest means nothing to which a speech restriction
can be narrowly tailored. See NAACP v. Button, 371 U.S. 415, 433 (1963) (“Because
First Amendment freedoms need breathing space to survive, government may
regulate in the area only with narrow specificity.”). Suffice it to say, however, that a
total prohibition of religious speech in Boston’s “public forums” open to “all
applicants” could never be sufficiently narrow.
13 To be sure, the City’s policy is so prohibitively hostile to religious speech that
it violates the Establishment Clause. (See infra Part I.C.)
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4. The City’s Exclusion of Camp Constitution’s
Speech is Unconstitutional Even Under the
District Court’s Erroneous Reasonable and
Viewpoint Neutral Standard for Limited Public
Fora.
In its alternative holding, the district court supposed that the City Hall Flag
Poles are a limited public forum, in which the City need only show that its religious
speech exclusion policy is viewpoint neutral and reasonable in light of the purposes
served by the forum. (Order at A-11.) While the district court’s articulation of the
standard for a limited public forum is correct, so far as it goes, the court’s conclusion
is still erroneous, for two reasons: (1) as shown above, the Flag Poles are a
designated public forum, subject to strict scrutiny (see supra, Argument, Part I.B.1),
and (2) the City’s speech restrictions fail the limited public forum analysis in any
event.
The full rigor of the limited public forum standard provides:
Once it has opened a limited forum, however, the State
must respect the lawful boundaries it has itself set. The
State may not exclude speech where its distinction is not
reasonable in light of the purpose served by the forum, nor
may it discriminate against speech on the basis of its
viewpoint.
Rosenberger, 515 U.S. at 829 (emphasis added) (citations and internal quotation
marks omitted). The City’s exclusion of Camp Constitution’s speech fails this test
because, as shown above, the City discriminated against Camp Constitution’s
viewpoint. (See supra, Argument, Part I.B.2.) Even overlooking this dispositive
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failure, however, the City’s exclusion fails the test because it was not reasonable in
light of any purpose served by the City’s all-comers “public forums,” and the City
has not respected its purported no-religion boundaries.
No purpose for the City’s designation of its public fora, including the City
Hall Flag Poles, appears in the City’s written policies, other than for “events” for
“all applicants.” (V. Compl. ¶¶ 34–35, JA10–12.) No limitations of purpose are
expressed. (Id.) The City’s exclusion of Camp Constitution’s religious speech from
the City Hall Flag Poles is not reasonable in light of the unlimited “events” for “all
applicants” purpose of the forum. See Rosenberger, 515 U.S. at 829.
Moreover, the City has not respected its own supposed boundaries. See id. As
shown above, the City allows other organizations to raise flags displaying explicit
religious content. (See supra, Statement of the Case, Part II.A.2.) A “no-religious
flag” event policy that allows some organizations to raise flags containing explicit
Christian symbols for their events (and extol those symbols on a City website (V.
Compl. ¶ 36 & Ex. I, JA12–13 & JA49–50)), but excludes other organizations from
doing the same, cannot satisfy any test of reasonableness.
The unreasonableness of the putative “no religious flag” event policy is
exposed not only by consideration of the explicitly religious private flags that are
continually allowed to be flown on the City Hall Flag Poles, but also by
consideration of the flag that is temporarily replaced by the permitted private flags:
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the City of Boston Flag containing the Latin motto “SICUT PATRIBUS, SIT DEUS
NOBIS,” meaning “God be with us as he was with our fathers.” (V. Compl. ¶ 41.a
& Ex. J, JA14–15 & JA51–53, Rooney Aff. ¶ 8, JA63.) Such an express appeal to
God on the City’s own flag renders absurd the City’s sudden assertion of a “no
religious flag” policy in denying Camp Constitution’s permit.
The City cannot save its policy by claiming that it only excludes the “subject
matter” of religion, as the district court erroneously held. (Order at A-12.) First, the
City has revealed no purpose to be served by a blanket exclusion of religious subject
matter, without which such an exclusion cannot be deemed reasonable. See
Rosenberger, 515 U.S. at 829. As shown above, a mere desire not to violate the
Establishment Clause is not sufficient to prohibit equal access to religious speech in
a public forum. (See supra, Argument, Part I.B.3.) Second, religion itself is a
viewpoint on other subjects, and the exclusion of all religious speech is viewpoint
discriminatory. See, e.g., Good News Club, 533 U.S. at 112 & n.4 (“Religion is the
viewpoint from which ideas are conveyed.” (emphasis added)); id. at 112 n.4
(“[W]e see no reason to treat the Club’s use of religion as something other than a
viewpoint merely because of any evangelical message it conveys.”); Rosenberger,
515 U.S. at 831 (“[V]iewpoint discrimination is the proper way to interpret the
University’s objections to [religious subject matter].”); Lamb’s Chapel, 508 U.S. at
393–94 (holding exclusion of entire subject matter of religion from forum is
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viewpoint discrimination); Byrne v. Rutledge, 623 F.3d 46, 55 (2d Cir. 2010) (“[O]ur
task here is greatly simplified by a trilogy of Supreme Court decisions each
addressing blanket bans on religious messages and each concluding that such bans
constitute impermissible viewpoint discrimination.” (emphasis added)).
Even if the City Hall Flag Poles could be classified a limited public forum,
the City’s exclusion of Camp Constitution’s religious speech is at best unreasonable
in light of the unlimited purpose of the forum, and at worst viewpoint-
discriminatory. Either way, it is unconstitutional, and the district Court’s order must
be reversed.
C. The District Court Erred in Failing to Recognize That City’s
Policies and Practices Impermissibly Discriminate Against
and Show Hostility Towards Camp Constitution’s Religious
Speech in Violation of the Establishment Clause.
Contrary to the district court’s conclusion that granting equal access to Camp
Constitution’s religious speech “may well violate the Establishment Clause” (Order
at A-14), the City is the Establishment Clause violator by virtue of its discriminatory
exclusion of Camp Constitution’s religious speech. The Establishment Clause
“affirmatively mandates accommodation, not merely tolerance, of all religions, and
forbids hostility toward any.” Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (citing
Zorach v. Clauson, 343 U.S. 206 (1952)); Hobbie v. Unemployment Appeals Com.,
480 U.S. 136, 144-45 (1987) (“[T]he government may (and sometimes must)
accommodate religious practices and that it may do so without violating the
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Establishment Clause.” (emphasis added)). “Indeed, the message is one of neutrality
rather than endorsement; if a State refused to let religious groups use facilities
open to others, then it would demonstrate not neutrality but hostility towards
religion.” Mergens, 496 U.S. at 248 (emphasis added).
“The touchstone for our analysis is the principle that ‘the First Amendment
mandates governmental neutrality between religion and religion, and between
religion and non-religion.’” McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 860
(2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)). Indeed, “[t]he
fullest realization of true religious liberty requires that government neither engage
in nor compel religious practices, that it effect no favoritism among sects or between
religion and nonreligion, and that it work deterrence of no religious belief.” Sch.
Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J.,
concurring); see also Van Orden v. Perry, 545 U.S. 677, 690 (Breyer, J., concurring)
(same).
The record demonstrates that the City has impermissibly discriminated
between religion and non-religion by allowing the numerous and varied “non-
religious” flags of a broad spectrum of private organizations while specifically
excluding Camp Constitution’s “non-secular” flag. (See supra, Statement of the
Case, Parts II.A.2, II.B). The record further demonstrates that the City also has
impermissibly discriminated between religion and religion by allowing the explicitly
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religious flags of some organizations while specifically denying the “non-secular”
flag of Camp Constitution. (See id.) The City’s discrimination between religion and
non-religion, and between religion and religion, is unconstitutional, and it was error
for the district court to conclude otherwise.
D. The District Court Erred in Ignoring the Presumptively
Unconstitutional Prior Restraint Inherent in the City’s
Unwritten Forum Policy.
This district court’s Order did not address Camp Constitution’s argument that
the City’s policies and practices concerning the designated public forum at the City
Hall Flag Poles comprise a presumptively unconstitutional prior restraint. (Pls.’ Mot.
Prelim. Inj. at JA60; Mem. Law Supp. Pls.’ Mot. Prelim. Inj., Dist. Ct. Doc. 8, at
13–15.) It was error for the district court to ignore the argument.
It is axiomatic that prior restraints are highly suspect and disfavored. See
Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992). Indeed, “[a]ny
system of prior restraints of expression comes to this Court bearing a heavy
presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan,
372 U.S. 58, 70 (1963) (emphasis added) (citing cases). “Because a censor’s
business is to censor, there inheres the danger that he may well be less responsive
than a court . . . to the constitutionally protected interests in free expression.”
Freedman v. Maryland, 380 U.S. 51, 57–58 (1965).
It is offensive—not only to the values protected by the
First Amendment, but to the very notion of a free
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society—that in the context of everyday public discourse
a citizen must first inform the government of her desire to
speak to her neighbors and then obtain a permit to do so. .
. . [A] law requiring a permit to engage in such speech
constitutes a dramatic departure from our national
heritage and constitutional tradition.
Watchtower Bible & Tract Soc’y of N.Y. v. Vill. of Stratton, 536 U.S. 150, 165–66
(2002) (emphasis added).
[A] law subjecting the exercise of First Amendment
freedoms to the prior restraint of a license must contain
narrow, objective, and definite standards to guide the
licensing authority. The reasoning is simple: If the permit
scheme involves appraisal of facts, the exercise of
judgment, and the formation of an opinion by the licensing
authority, the danger of censorship and of abridgment of
our precious First Amendment freedoms is too great to be
permitted.
Forsyth Cnty., 505 U.S. at 131 (citations and internal quotation marks).
It is settled by a long line of recent decisions of this Court
that an ordinance which . . . makes the peaceful enjoyment
of freedoms which the Constitution guarantees contingent
upon the uncontrolled will of an official—as by requiring
a permit or license which may be granted or withheld in
the discretion of such official—is an unconstitutional
censorship or prior restraint upon the enjoyment of those
freedoms.
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FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 226 (1990) (alteration in original)
(citations and internal quotation marks omitted).14
The City’s unwritten, standard-less policy and practice is an unconstitutional
prior restraint at the zenith of danger to First Amendment freedoms. The policy and
practice vests unbridled discretion in one City official, Appellee Rooney, to
determine whether proposed speech is sufficiently “non-secular” to be “consistent
with the City’s message, policies, and practices,” and allows the official to deny the
proposed speech despite meeting all of the City’s written criteria for use of its
designated public fora. (Rooney Aff. ¶¶ 15–17, 21–22, JA63–65.) Neither the
purported “non-secular” criterion, nor “the City’s message” with which proposed
speech must comply, are defined or even mentioned in the City’s written policies
14 See also Saia v. People of State of N.Y., 334 U.S. 558, 562 (1948) (“When a
city allows an official to ban [speech] in his unfettered control, it sanctions a device
for suppression of free communication of ideas.”); City of Lakewood v. Plain Dealer
Publ’g Co., 486 U.S. 750, 763 (1988) (holding danger of viewpoint discrimination
“at its zenith when the determination of who may speak and who may not is left to
the unbridled discretion of a government official”); id. at 764 (“[E]ven if the
government may constitutionally impose content-neutral prohibitions on a particular
manner of speech, it may not condition that speech on obtaining a license or
permit from a government official in that official’s boundless discretion.”
(emphasis added)); id. at 757 (“[T]he mere existence of the licensor’s unfettered
discretion, coupled with the power of prior restraint, intimidates parties into
censoring their own speech, even if the discretion and power are never actually
abused.”); Forsyth Cnty., 505 U.S. at 133 (“The First Amendment prohibits the
vesting of such unbridled discretion in a government official.” (emphasis
added)).
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and guidelines for applicants seeking to access the City’s designated public fora for
expression. These dispositive constitutional dangers are admitted by the City and
therefore beyond dispute. The district court’s order should be reversed for failing to
enjoin the City’s policy and practice as an unconstitutional prior restraint.
II. THE DISTRICT COURT’S ORDER SHOULD BE REVERSED
BECAUSE PLAINTIFFS ARE SUFFERING IRREPARABLE HARM.
The district court also erred in concluding that Camp Constitution would
suffer no irreparable injury absent injunctive relief. (Order at A-17.) This conclusion
ignores the unquestionable mandate of the First Amendment that religious speech
not be treated as a constitutional orphan by government bodies that have otherwise
opened up a designated public forum for private expression. See Pinette, 515 U.S. at
760. It is axiomatic that “[t]he loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427
U.S. 347, 373 (1976); see also Wallace v. Jaffree, 472 U.S. 38, 44 n.22 (1985); N.Y.
Times Co. v. U.S., 403 U.S. 713 (1971). A citizen who exercises the right to free
speech exercises a right that “‘lies at the foundation of free government . . . .’”
Schneider v. State, 308 U.S. 147, 165 (1939). The deprivation of such protected
rights constitutes, a priori, irreparable harm. “‘The constitutional right of free
expression is . . . intended to remove governmental restraints from the arena of public
discussion, putting the decision as to what views shall be voiced largely into the
hands of each of us . . . .’” Simon & Schuster, Inc. v. Members of New York State
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Crime Victims Bd., 502 U.S. 105, 116 (1991) (quoting Leathers v. Medlock, 499 U.S.
439, 448–49 (1991)).
This Court has affirmed that where, as here, plaintiffs have made “a strong
showing of likelihood of success on the merits of their First Amendment claim, it
follows that the irreparable injury component of the preliminary injunction analysis
is satisfied as well.” Fortuno, 699 F.3d at 15 (citing Elrod, 427 U.S. at 373); see also
Maceira v. Pagan, 649 F.2d 8, 18 (1st Cir. 1981) (“We also believe that plaintiffs
have made a sufficient showing of irreparable injury. It is well established that the
loss of first amendment freedoms constitutes irreparable injury.”). Since Camp
Constitution has shown a likelihood of success on the claim that the City’s policy
and practice violates the First Amendment, “[t]here is no need for an extensive
analysis of this element of the preliminary injunction inquiry.” Fortuno, 699 F.3d at
15. Thus, the district court’s conclusion to the contrary was in error.
III. THE DISTRICT COURT’S ORDER SHOULD BE REVERSED
BECAUSE THE BALANCE OF EQUITIES AND PUBLIC INTEREST
FAVOR INJUNCTIVE RELIEF.
With respect to the other preliminary injunction factors, the district court
concluded that the balance of harms and public interest weigh against injunctive
relief, supposing that “it makes little sense” to require the City to grant Camp
Constitution equal access to the City Hall Flag Poles. (Order at A-18.) The district
court further reasoned that the injunction would expose the City to Establishment
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Clause claims. (Id.) None of these conclusions is supportable. First, as shown above,
granting equal access to Camp Constitution’s religions speech would not violate the
Establishment Clause. (See supra, Argument, Part I.B.3.b.) Second, the balance of
harms and public interest favor Camp Constitution.
Where, as here, the City’s policy and practice is depriving Camp Constitution
of the ability to speak and provide information, it creates a hardship for both Camp
Constitution and its intended audience. Fortuno, 699 F.3d at 15. Quoting the
Supreme Court’s decision in Citizens United v. Federal Election Commission, 558
U.S. 310, 339 (2010), this Court said, “The right of citizens to inquire, to hear, to
speak, and to use information to reach consensus is a precondition to enlightened
self-government and a necessary means to protect it.” Fortuno, 699 F.3d at 15. “To
deprive plaintiffs of the right to speak will therefore have the concomitant effect of
depriving ‘the public of the right and privilege to determine for itself what speech
and speakers are worthy of consideration.’” Id.
By contrast, permitting the display of a Christian flag on the City Hall Flag
Poles will not harm the City in any way. Not only is there no legitimate
Establishment Clause concern, but also the City will not have to change or republish
any written guidelines for its “public forums.” The City merely will have to set aside
its unwritten policies and practices. Therefore, as was true in Fortuno, there will be
no disruption. Id. at 16. “The only consequence of this injunction will be that
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juridical persons who were unlawfully prevented from engaging in political speech
will now be able to engage in such speech.” Id. The balance of equities clearly
weighs in favor of Camp Constitution.
The public interest is also served by the requested injunction. Protection of
constitutional rights is of the highest public interest. Elrod, 427 U.S. at 373.
Protecting First Amendment rights is ipso facto in the interest of the general public.
Machesky v. Bizzell, 414 F.2d 283, 288–90 (5th Cir. 1969) (“First Amendment rights
are not private rights . . . so much as they are rights of the general public.”) The
protection of constitutional rights and the public policy considerations of free
dissemination of ideas clearly outweigh any purported concerns of the City. See
Fortuno, 699 F.3d at 15. Whatever inconvenience the City might claim to suffer
pales into insignificance when contrasted with the gross violation of Camp
Constitution’s cherished constitutional liberties and the harm the public must suffer
under the City’s unconstitutional policies and practices.
CONCLUSION
For the foregoing reasons, the district court’s denial of Camp Constitution’s
motion for preliminary injunction was in error, and this Court should reverse.
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s/ Roger K. Gannam
Mathew D. Staver
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854-0774
Phone: (407) 875-1776
Facsimile: (407) 875-0770
Email: [email protected]
Attorneys for Plaintiffs-Appellants
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT,
TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS
1. This document complies with the type-volume limitation of Fed. R.
App. P. 32(a)(7)(B). Not counting the items excluded from the length by Fed. R.
App. P. 32(f), this document contains 12,447 words.
2. This document complies with the typeface requirements of Fed. R. App.
P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6). This
document has been prepared using Microsoft Word in 14-point Times New Roman
font.
DATED this February 2, 2019
/s/ Roger K. Gannam
Roger K. Gannam
Attorney for Plaintiffs-Appellants
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CERTIFICATE OF SERVICE
I hereby certify that on this February 2, 2019, I caused the foregoing to be
filed electronically with this Court. Service will be effectuated on the following via
the Court’s ECF/electronic notification system:
Robert Arcangeli
Assistant Corporation Counsel
City of Boston Law Department
City Hall, Room 615
Boston, MA 02201
(617) 635-4044
/s/ Roger K. Gannam
Roger K. Gannam
Attorney for Plaintiffs-Appellants
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A-i
ADDENDUM TO OPENING BRIEF OF PLAINTIFFS-APPELLANTS
TABLE OF CONTENTS
Dist. Ct.
Doc. # Document Page
19 MEMORANDUM AND ORDER
(denying Plaintiffs’ Motion for Preliminary Injunction) A-1
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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
__________________________________________ ) )
HAROLD SHURTLEFF et al., ) )
Plaintiffs, ) )
v. ) Civil Action No. 18-cv-11417-DJC )
CITY OF BOSTON et al., ) )
Defendants. ) ) __________________________________________)
MEMORANDUM AND ORDER
CASPER, J. August 29, 2018
I. Introduction
Plaintiffs Harold Shurtleff and Camp Constitution (“Plaintiffs”) have moved for a
preliminary injunction against Defendants, the City of Boston and Gregory T. Rooney, in his
official capacity as Commissioner of the City of Boston Property Management Department
(collectively, “Defendants” or “the City”). D. 7. Plaintiffs seek to enjoin the City from denying
permission to the Plaintiffs to display “the Christian flag” on a City Hall flagpole in conjunction
with their Constitution Day and Citizenship Day event on or around September 17, 2018. D. 7 at
2. For the reasons discussed below, Plaintiffs’ motion for a preliminary injunction, D. 7, is
DENIED.
II. Standard of Review
“A preliminary injunction is an ‘extraordinary and drastic remedy.’” Voice of the Arab
World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011) (quoting Munaf v.
Geren, 553 U.S. 674, 689-90 (2008)). To obtain a preliminary injunction, the Court must consider:
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(1) the movant’s likelihood of success on the merits; (2) the likelihood of the movant suffering
irreparable harm; (3) the balance of equities; and (4) whether granting the injunction is in the public
interest. Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9 (1st Cir. 2013). Plaintiffs “bear[] the burden
of establishing that these four factors weigh in [their] favor.” Esso Standard Oil Co. (P.R.) v.
Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006); see Rivera-Vega v. Conagra Inc., 70 F.3d 153,
164 (1st Cir. 1995) (quoting Pye ex rel. NLRB v. Sullivan Bros. Printers, 38 F.3d 58, 63 (1994))
(noting that when the relief sought by the moving party “is essentially the final relief sought, the
likelihood of success should be strong”) (emphasis in original) (internal quotation marks omitted).
III. Factual Background
The following facts, largely undisputed, are drawn from the complaint, D. 1, Plaintiffs’
motion for a preliminary injunction, D. 7-8, and the City’s opposition, D. 11. The City owns and
manages three flagpoles located in front of the entrance to City Hall, in an area called City Hall
Plaza. D. 11 at 2; D. 11-1 ¶ 5. The three poles are the same height, approximately 83 feet tall. D.
11 at 2. One pole regularly displays the flags of the United States and the National League of
Families Prisoner of War/Missing in Action (“POW/MIA”) flag. Id. A second pole flies the flag
of the Commonwealth of Massachusetts. Id. The dispute in this case centers on the third flagpole,
which displays the City of Boston flag except when replaced by another flag—usually at the
request of a third-party. Id. Such a request is often made in conjunction with a proposed third-
party event to take place at a location owned by the City, one of which is City Hall Plaza. Id.
Examples of other flags that have been raised on the third flagpole are country flags, e.g., the flags
of Brazil, Ethiopia, Portugal, Puerto Rico, the People’s Republic of China and Cuba, and the flags
of private organizations, including the Juneteenth flag recognizing the end of slavery, the LGBT
rainbow pride flag, the pink transgender rights flag, and the Bunker Hill Association flag. D. 8 at
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3; D. 11 at 2. As Plaintiffs allege, the flag of Portugal contains “dots inside the blue shields
represent[ing] the five wounds of Christ when crucified” and “thirty dots that represents [sic] the
coins Judas received for having betrayed Christ.” D. 1 ¶ 36. The City of Boston flag includes the
Boston seal’s Latin inscription, which translates to “God be with us as he was with our fathers.”
D. 1 ¶ 41(a). As Plaintiffs note, the Bunker Hill Flag contains a red St. George’s cross. D. 1
¶ 41(b). Many religious groups, including Plaintiffs, have held events at City-owned properties in
the past. D. 8 at 4; D. 11 at 3.1
To apply for a permit to raise a flag at City Hall and hold an event on a City-owned
property, a party submits an application to the City. D. 11 at 3; D. 11-1 ¶ 13. The City has
published guidelines on its website for applicants. D. 8 at 3; D. 11 at 3; D. 11-1 ¶ 13. The
guidelines state that an application may be denied if the event involves illegal or dangerous
activities or if it conflicts with scheduled events. D. 8 at 3-4; D. 11 at 3. In addition, an application
may be denied if the applicant lacks an insurance certification, lies on their application, has a
history of damaging city property or failing to pay city fees or fails to comply with other
administrative requirements. D. 8 at 4; D. 11 at 3. After a party has submitted an application, the
City reviews the request to ensure it complies with all guidelines. D. 1-8 at 2; D. 11 at 3; D.11-1
¶ 15. The Commissioner of Property Management reviews applications for the City flagpole to
ensure flag requests are “consistent with the City’s message, policies, and practices.” D. 11 at 3;
D. 11-1 ¶¶ 16-17. The City does not have a written policy regarding the content of flags to be
raised. D. 8 at 4.
1 In or about 2012, Plaintiffs obtained permission to and did fly an unspecified flag on the City Hall flagpole as part of a free speech event. D. 1 ¶ 19; D. 8 at 4. Plaintiffs do not allege that they received permission to fly the Christian flag at that event.
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On July 28, 2017, Plaintiff Shurtleff emailed the City on behalf of his organization, Camp
Constitution, requesting to “raise the Christian flag on City Hall Plaza,” accompanied by “short
speeches by some local clergy focusing on Boston’s history” on one of several dates in September
2017. D. 1-1. The email included a photograph of the Christian flag, D. 1-1, which “displays a
red Latin cross against a blue square bordered on three sides by a white field.” D. 1-4. On
September 5, 2017, the City denied Shurtleff’s request to raise the Christian flag without
explanation. D. 1-3. Shurtleff asked for the “official reason” for denying the permit. Id.
Defendant Rooney wrote to Shurtleff that “[t]he City of Boston maintains a policy and practice of
respectfully refraining from flying non-secular flags on the City Hall flagpoles.” D. 1-4. Rooney
further explained that the City’s “policy and practice” was based on the First Amendment
prohibition on government establishing religion and the City’s authority to decide how to use its
flagpoles, which are a “limited government resource.” Id. Rooney concluded that “[t]he City
would be willing to consider a request to fly a non-religious flag, should [Shurtleff’s] organization
elect to offer one.” Id. In response, Plaintiffs’ counsel sent a letter to the City on September 14,
2017, taking the position that the denial was unconstitutional and declining to “submit a ‘non-
religious’ flag.” D. 1-6 at 2. Plaintiffs’ counsel attached a second application for “Camp
Constitution’s Christian Flag Raising” on October 19 or October 26, 2017. D. 1-5. The stated
purpose of the event was to “[c]elebrate and recognize the contributions Boston’s Christian
community has made to our city’s cultural diversity, intellectual capital and economic growth.”
Id. The letter stated that if Plaintiffs did not receive a response by September 27, 2017, Plaintiffs
would take “additional actions to prevent irreparable harm to the rights of [their] clients.” D. 1-6
at 4. The City neither issued a permit to Plaintiffs nor responded to the letter. D. 8 at 5; D. 11 at
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4. Since receiving the letter, Plaintiffs have not applied to hold further events on City-owned
property, with or without a flag. D. 11 at 19-20.
IV. Procedural History
On July 6, 2018, Plaintiffs filed the present complaint seeking injunctive relief, declaratory
relief and damages against Defendants. D. 1. On July 9, 2018, Plaintiffs moved for a preliminary
injunction. D. 7. On August 9, 2018, the Court heard the parties on the pending motion and took
this matter under advisement. D. 14.
V. Discussion
Plaintiffs have asserted six claims—three federal and three state constitutional: 1) a
violation of the First Amendment free speech clause; 2) a violation of the First Amendment
establishment clause; 3) a violation of the Fourteenth Amendment equal protection clause; 4) a
violation of the freedom of speech clause of Article 16 of the Massachusetts Declaration of Rights;
5) a violation of the non-establishment of religion clauses of Articles 2 and 3 of the Massachusetts
Declaration of Rights; and 6) a violation of equal protection under Articles 1 and 3 of the
Massachusetts Declaration of Rights.2
As an initial matter, federal law governs the Court’s analysis of the Plaintiffs’ claims under
both the United States and Massachusetts Constitutions. See, e.g., Commonwealth v. Barnes, 461
Mass. 644, 650 (2012) (classifying the free speech provisions of Article 16 of the Massachusetts
2 Although Plaintiffs request an order compelling the City to include a description of Plaintiffs’ event on its website, Plaintiffs have not alleged that the City denied any such request. As such, Plaintiffs have not “present[ed] a real, substantial controversy . . . a dispute definite and concrete, not hypothetical or abstract” that is ripe for resolution as to this request. Nomad Acquisition Corp. v. Damon Corp., 701 F. Supp. 10, 11 (D. Mass. 1988) (quoting Babbitt v. United Farm WorkersNat’l Union, 442 U.S. 289, 298 (1979)) (internal quotation marks and punctuation omitted).Accordingly, the Court’s analysis is limited to Plaintiffs’ claims with respect to the prayer for reliefconcerning the denial of permission to raise the Christian flag on the City flagpole.
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Declaration of Human rights as a “cognate provision” of the First Amendment); Brackett v. Civil
Serv. Comm’n, 447 Mass. 233, 243 (2006) (noting that “[t]he standard for equal protection
analysis under [Massachusetts’] Declaration of Rights is the same as under the Federal
Constitution”); Opinion of the Justices to the House of Representatives, 423 Mass. 1244, 1247
(1996) (explaining that the court’s analysis under Article 2 of the Declaration of Rights of the
Massachusetts Constitution was “based on the same standards applied under the establishment
clause of the First Amendment”). Here, neither party has meaningfully cited to Massachusetts law
to assess the constitutionality of the City’s actions. In a single footnote, Plaintiffs assert that rights
to freedom of expression are generally coextensive under the United States and Massachusetts
Constitutions and that where the two diverge, the state protections are “more extensive.” D. 8 at
6, n.1 (citing Flaherty v. Knapik, 999 F. Supp. 2d 323, 332 (D. Mass. 2014)). Plaintiffs, however,
do not specifically address how these “more extensive” protections under Massachusetts law
would apply to the instant case. Defendants assert that federal jurisprudence governs the analysis.
D. 11 at 5, n. 3. Like Plaintiffs, they note that in some instances, provisions of the Massachusetts
Constitution are more protective than those of the United States Constitution, but Defendants
contend that those instances are inapplicable to the present case. Because neither party has argued
that the Court should rely on Massachusetts law rather than federal law, the Court will address the
Massachusetts constitutional claims coextensively with their federal counterparts.
A. Likelihood of Success on the Merits
Although the Court considers all factors of the preliminary injunction analysis, “[t]he sine
qua non of this four-part inquiry is likelihood of success on the merits: if the moving party cannot
demonstrate that [it] is likely to succeed in [its] quest, the remaining factors become matters of
idle curiosity.” New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002);
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see Boathouse Grp., Inc. v. TigerLogic Corp., 777 F. Supp. 2d 243, 248 (D. Mass. 2011)
(explaining that “[l]ikelihood of success on the merits is the critical factor in the analysis and,
accordingly, a strong likelihood of success may overcome a ‘somewhat less’ showing of another
element”) (quoting EEOC v. Astra U.S.A., Inc., 94 F.3d 738, 743 (1st Cir. 1996)).
1. Free Speech Claims
The parties disagree about whether the City’s selection and presentation of the flags on the
City flagpole constitute government speech or private speech. If the flags are government speech,
as Defendants assert, “then the Free Speech Clause has no application” and the City may “select
the views that it wants to express.” Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467-68
(2009). In contrast, if the flags are private speech displayed in a limited public forum, as Plaintiffs
argue, the restriction on non-secular flags must be reasonable and viewpoint neutral. Rosenberger
v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). This Court concludes that the
selection and display of the flags on the City flagpole constitute government speech. Moreover,
even if they did not constitute government speech, the Court finds that the City’s restriction on
non-secular flags satisfies the constitutional requirements for limitations on speech in a limited
public forum.
a) The City’s Selection and Presentation of Flags ConstitutesGovernment Speech
Two leading Supreme Court cases compel the conclusion that the City’s selection and
presentation of flags on the City flagpole constitute government speech. In the first case, Pleasant
Grove City, members of a religious organization called Summum sued the city of Pleasant Grove
under the free speech clause of the First Amendment for the city’s failure to erect Summum’s
proposed monument in a public park. Pleasant Grove City, 555 U.S. at 464. The city had
previously erected other privately donated monuments in the park, including a monument of the
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Ten Commandments. Id. at 465. Summum’s proposed monument was to contain “the Seven
Aphorisms of SUMMUM” and would “be similar in size and nature to the Ten Commandments
monument.” Id. The city rejected Summum’s proposal pursuant to an unwritten rule “limit[ing]
monuments in the Park to those that ‘either (1) directly relate[d] to the history of Pleasant Grove,
or (2) were donated by groups with long-standing ties to the Pleasant Grove community.’” Id. The
Supreme Court unanimously concluded that the city’s rejection of Summum’s proposal constituted
government speech and that the “Free Speech Clause . . . does not regulate government speech.”
Id. at 467.
The Supreme Court subsequently considered a similar free speech challenge in Walker v.
Tex. Div., Sons of Confederate Veterans, Inc., __ U.S. __, 135 S. Ct. 2239 (2015). Walker
concerned the Texas Department of Motor Vehicle Board’s rejection of a proposal by the Sons of
Confederate Veterans for a vanity license plate featuring the Confederate flag. Id. at 2243-44. In
considering the design, the Board sought public comments. Id. at 2245. Following the comments,
the Board voted unanimously to reject the proposed plate because “many members of the general
public [found] the design offensive,” “such comments [were] reasonable” and “a significant
portion of the public associate the confederate flag with organizations advocating expressions of
hate directed toward people or groups that is demeaning to those people or groups.” Id. (internal
quotation mark omitted). The Court held that the Texas license plates, like the monuments in
Summum, constituted government speech and thus were not subject to the free speech clause. Id.
at 2246-47. The Court primarily focused on 1) the history of the speech at issue; 2) a reasonable
observer’s perception of the speaker and 3) control over the speech. Id. at 2248-50. Relying
heavily on Summum, the Court concluded that 1) license plates “long have communicated
messages from the States;” 2) license plates “are often closely identified in the public mind with
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the [State]” and reasonable observers “interpret them as conveying some message on the [State’s]
behalf” and 3) the state had “effectively controlled” the content of the license plates by exercising
approval authority over each request. Id. at 2247-48 (internal quotations and citations omitted).
Applying the factors from Summum and Walker to this case, the Court concludes that the
City’s selection and presentation of flags on the City flagpole constitute government speech. First,
like public monuments, “[g]overnments have long used [flags] to speak to the public.” Summum,
555 U.S. at 470; see Texas v. Johnson, 491 U.S. 397, 405 (1989) (observing that “[p]regnant with
expressive content, the flag as readily signifies this Nation as does the combination of letters found
in ‘America’”); W. Va. State Bd. of Educ. v Barnette, 319 U.S. 624, 632 (1943) (noting that “[t]he
use of an emblem or flag to symbolize some system, idea, institution, or personality, is a shortcut
from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to
knit the loyalty of their followings to a flag or banner . . .”). Second, “there is little chance that
observers [would] fail to appreciate the identity of the speaker” as the City when confronted with
a flag flying 83 feet in the air above City Hall on City property next to the flags of the United
States and the Commonwealth. Summum, 555 U.S. at 471. Third, the City has “effectively
controlled” which flags have flown at City hall “by exercising ‘final approval authority’ over their
selection.” Walker, 135 S. Ct. at 2247 (quoting Summum, 555 U.S. at 473) (internal quotation
marks omitted). Like the government entities in Summum and Walker, here the City has a
controlled process through which applicants can request to fly a flag on City-owned property.
Plaintiffs’ rejection of a proposed alternative for expressing itself also supports the
contention that flag-raising is government speech. As the Supreme Court reasoned in Walker:
Indeed, a person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message. If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate. But the individual prefers a license plate design to the purely
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private speech expressed through bumper stickers. That may well be because Texas’s license plate designs convey government agreement with the message displayed.
Walker, 135 S. Ct. at 2249.
Similar to the bumper sticker, there is nothing in the record to suggest that Plaintiffs could not
display the Christian flag on City Hall Plaza as part of their event. See D. 11 at 10. That Plaintiffs
have apparently rejected this option indicates a wish to “convey government agreement with the
message displayed.” Id.
Since the Supreme Court decisions in Summum and Walker, at least one federal court has
determined that a city’s selection of private flags on a city-owned flagpole constitutes government
speech. In United Veterans Mem’l & Patriotic Ass’n of New Rochelle v. City of New Rochelle,
615 Fed. App’x. 693, 694 (2d Cir. 2015), the court considered a First Amendment challenge to the
city’s removal of a veterans group’s flag from a flagpole in a city-owned armory. Id. The group
had previously been granted “the right to display and maintain flags” on the flagpole. Id.
Nonetheless, considering the Supreme Court decision in Walker, the Second Circuit held that
“[t]he City was well within its rights to delegate to [a private organization] the right to display and
maintain flags on the City-owned flagpole without creating a public forum of any sort, or
relinquishing control of the flags displayed.” Id. Like the court in New Rochelle, this Court
concludes that the City’s selection of flags on City-owned property is government speech and, as
a result, the free speech clause does not apply.
b) Even if the Selection and Presentation of Flags Were NotGovernment Speech, the Restriction on Non-Secular Flags isReasonable, View-Point Neutral and Permissible in a LimitedPublic Forum
If the City’s selection and presentation of flags on the City flagpole were not government
speech, their permissibility under the Constitution would be determined based on the type of forum
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at issue. There are three types of fora under First Amendment jurisprudence. One is a traditional
public forum, such as a street or a park, which “has immemorially been held in trust for the use of
the public . . . .” Hague v. CIO, 307 U.S. 496, 515 (1939). The second type is a non-public forum,
“which is not by tradition or designation a forum for public communication . . . .” Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983). Between these two types is a
“limited public forum,” which is a non-public forum that the government “has opened for use by
the public as a place for expressive activity.” Id. at 45.
Plaintiffs assert that the City has designated the flagpole as a limited public forum and that
the City’s restriction on non-secular flags in such a forum should be subject to strict scrutiny.3
Strict scrutiny, however, is not the correct standard for speech in a limited public forum. Rather,
the Supreme Court’s rule is that in a limited public forum government may not exercise viewpoint
discrimination and “may not exclude speech where its distinction is not ‘reasonable in light of the
purpose served by the forum.’” Rosenberger, 515 U.S. at 829 (quoting Cornelius v. Nat’l Ass’n
for the Advancement of Colored People Legal Def. & Ed. Fund, Inc., 473 U.S. 788, 806 (1985)).4
3 Because Plaintiffs assert that the flagpole is a limited public forum, rather than a traditional public forum, the cases that Plaintiffs cite concerning this latter category do not aid the Court’s analysis. See Rosenberger, 515 U.S. at 829-30 (stating that a prior restraint on content discrimination, unlike viewpoint discrimination, “may be permissible if it preserves the purposes of [the] limited forum”); cf. D. 8 at 13-14; Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 154 (2002) (scrutinizing ordinance that regulated speech on “private residential property”); Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992) (considering “the constitutionality of charging a fee for a speaker in a public forum”); City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 753 (adjudicating appellee’s rights to place newsracks on “city sidewalks,” which are traditional public fora). 4 Similarly, Plaintiffs’ argument that the burden shifts to the City to prove the constitutionality its policy is unavailing in the context of a limited public forum. In support of their arguments, Plaintiffs rely on Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 665-66 (2004) and Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 429 (2006). Those cases, however, involved challenges to federal legislation restricting speech and religious expression, rather than a municipal policy regulating private speech in a limited public forum.
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The City’s policy of excluding non-secular flags is viewpoint neutral because it excludes
religion as a subject matter of speech on the flagpole, rather than prohibiting religious viewpoints
on otherwise permissible subjects. See Rosenberger, 515 U.S. at 831. In Rosenberger, the
Supreme Court held that a public university could not deny funding to a student magazine
expressing Christian viewpoints on a wide range of topics while it subsidized other student
journals. Id. at 837, 846. The Court emphasized that the reason the University’s policy ran afoul
of the free speech clause was that “the University [did] not exclude religion as a subject matter but
select[ed] for disfavored treatment those student journalistic efforts with religious editorial
viewpoints.” Id. at 831. Following Rosenberger, other courts have upheld government exclusions
of religion when the policy excluded religion as a subject matter, rather than a viewpoint on other
subjects, in limited public fora. See, e.g., DiLoreto v. Downey Unified Sch. District Bd. of Ed.,
196 F.3d 958, 969 (9th Cir. 1999) (upholding high school’s decision to exclude religious
advertising funded by third parties on baseball field fence open exclusively to commercial
messages); Archdiocese of Wash. v. Wash. Metro Area Transit Auth., 281 F. Supp. 3d 88, 96
(D.D.C. 2017) (denying injunctive relief to plaintiffs challenging bus company’s policy of
excluding religious advertisements funded by third parties on buses). Here, as in the cases above,
the City has permissibly chosen to exclude religion as a subject matter, rather than as one
perspective among many on other subjects. Therefore, the City’s policy is viewpoint neutral.
The City’s policy is also reasonable based on the City’s interest in avoiding the appearance
of endorsing a particular religion and a consequential violation of the Establishment Clause. See
Such legislation is reviewed under strict scrutiny, which places the burden on the government to demonstrate a compelling interest in limiting speech and narrow tailoring of the legislation, even at the preliminary injunction stage. Gonzales, 546 U.S. at 429. In contrast, as explained above, strict scrutiny is not the proper standard of review for a restriction on speech in a limited public forum.
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Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394-95 (1993) (noting that
“[t]he interest of the State in avoiding an Establishment Clause violation ‘may be [a] compelling’
one justifying an abridgement of free speech otherwise protected by the First Amendment”)
(quoting Widmar, 454 U.S. at 271). Moreover, where the Plaintiffs the opportunity to conduct
their event on City Hall Plaza, fly a secular flag on the City flagpole or display the Christian flag
on City Hall Plaza but not on the City flagpole, the City has demonstrated reasonableness and that
it does not seek to silence Plaintiffs.
2. The Establishment Clause
As discussed above, the Court rules that the City’s selection and presentation of flags on
the City flagpole constitute government speech. Government speech must still comply with the
Establishment Clause. Summum, 555 U.S. at 468. Plaintiffs allege that the City’s policy of
displaying only non-secular flags is “overtly hostile to religion and violates the Establishment
Clause.” D. 8 at 11-12. Defendants, on the other hand, argue that the City would violate the
Establishment Clause if it were to raise the Christian flag on the City flagpole. D. 11 at 16-18.
The Court concludes that Plaintiffs have not demonstrated a substantial likelihood of success on
the merits of their claim under the Establishment Clause.
The test for reviewing the constitutionality of religious displays on government property is
the Lemon test, which holds that a government regulation must 1) “have a secular legislative
purpose,” 2) the “principal or primary effect must be one that neither advances nor inhibits
religion” and 3) the regulation “must not foster an excessive government entanglement with
religion.” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (internal quotations omitted). Cases
subsequent to Lemon have augmented the analysis with the “endorsement test.” Lynch v.
Donnelly, 465 U.S. 668, 688-89 (1984) (O’Connor, J. concurring); see Devaney v. Kilmartin, 88
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F. Supp. 3d 34, 50 (D.R.I. 2014) (treating the endorsement test as having “amplified” the Lemon
test). Under the endorsement test, the Court must consider whether the City's actions have the
“purpose or effect of endorsing, favoring or promoting religion.” Id. at 51-52 (D.R.I. 2014)
(quoting Freedom from Religion Found. v. Hanover Sch. Dist., 626 F.3d 1, 10 (1st Cir. 2010)).
Applying the Lemon and endorsement test, the Court concludes that compelling the City
to display the Christian flag on the City flagpole, as Plaintiffs seek to do, may well violate the
Establishment Clause. Certainly, an event to “raise the Christian flag” could serve some of
Plaintiffs’ cited secular purposes, such as the celebration of religious freedom in Boston and the
contributions of Boston’s Christian residents to the City. However, its primary purpose would be
to convey government endorsement of a particular religion by displaying the Christian flag
alongside that of the United States and the Commonwealth in front of City Hall. Blowing in the
wind, these side-by-side flags could quite literally become entangled. If Plaintiffs were not seeking
government endorsement, then Plaintiffs would presumably be content to raise their own flag on
their own in the same location as has been suggested. See Walker, 135 S. Ct. at 2249 (explaining
that plaintiffs sought to have their speech displayed on a license plate, rather than on a sticker next
to a license plate, because the license plate would “convey government agreement with the
message displayed”).
3. Fourteenth Amendment Equal Protection
Plaintiffs argue that the City’s policy violates the Equal Protection Clause of the Fourteenth
Amendment as it is stated and as it is applied to Plaintiffs. The Court does not conclude that
Plaintiffs have shown a likelihood of success that the City’s policy as it stands and as applied does
not rise to the level of violating Plaintiffs’ rights under the Equal Protection Clause.
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First, Plaintiffs allege that they have been deprived of equal protection of the laws because
the City’s policy prohibiting non-secular flags is unconstitutionally vague. Plaintiffs cite to five
cases standing for the proposition that government regulations cannot be overly vague so that
citizens can be informed of their rights. D. 8 at 16-17. However, none of these cases apply to the
regulation of government speech or even private speech in a limited public forum. Moreover,
although the City’s policy against flying non-secular flags is unwritten, that does not make it
unconstitutional. See Summum, 555 U.S. at 465 (upholding city’s practice of limiting the types
of monuments in park despite the policy not being put into writing until the year after the city’s
rejection of Plaintiffs’ proposed monument). While the City should strive to make its policies
clear, here Plaintiffs have failed to show that any vagueness in the policy has risen to the level of
a Fourteenth Amendment violation.
Next, Plaintiffs allege that the City’s policy against non-secular flags violates Equal
Protection because it discriminates against speech based on its content. In support, Plaintiffs
mainly rely on Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92 (1972) and Carey v. Brown,
447 U.S. 455 (1980), in which the plaintiffs prevailed on claims of speech-related Equal Protection
violations. However, the Supreme Court specifically held that the “key” to the plaintiffs’ success
in Mosley and Carey was “the presence of a public forum.” Perry, 460 U.S. at 55. The Court
further reasoned that “[c]onversely on government property that has not been made a public forum,
not all speech is equally situated, and the State may draw distinctions which relate to the special
purpose for which the property is used.” Id. For the reasons already discussed above, and
consistent with the conclusions in Perry, the Court concludes that here the City’s policy, as applied
outside of a public forum, permissibly excludes the subject of religion and does not violate Equal
Protection.
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Finally, Plaintiffs allege that they have been treated differently from other similarly situated
groups under the City’s policy in violation of Equal Protection. The Supreme Court has held that
“[w]hen speakers and subjects are similarly situated, the State may not pick and choose.” Id. As
evidence of their differential treatment, Plaintiffs cite to the display of the flags of Portugal, the
City of Boston and the Bunker Hill Association––all of which feature references to God and
Christ—on the City flagpole.5 Plaintiffs are correct that under the City’s unwritten policy, there
may be some close cases regarding which flags are “non-secular,” but these examples are not
among them. The exemplar flags, unlike the Christian flag, comply with the Lemon test in that
their primary effect is not to advance or inhibit religion. Lemon, 403 U.S. at 612. The names of
the flags alone are enough to reveal their primary purposes. The Christian flag primarily represents
a specific religion, while the other cited flags represent a sovereign nation, a city government and
a group committed to remembering a military victory. Therefore, Plaintiffs are not similarly
situated to the sponsors of the Portuguese, City of Boston and Bunker Hill Association flag events
and have failed to make out a claim of differential treatment in violation of the Fourteenth
Amendment.
For all of the aforementioned reasons, Plaintiffs have failed to show a reasonable likelihood
of success on the merits of their claims.
5 Plaintiffs also emphasize the City’s prior decisions to grant permission to private parties to raise the LGBT rainbow pride flag, transgender rights flag and the Juneteenth flag on the City flagpole. However, none of these flags are religious on their face. To the extent that Plaintiffs are being treated differently than the groups that raised those flags, that treatment is based on the City’s reasonable choice to exclude religion as a subject matter on the flagpole and does not violate the Fourteenth Amendment.
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B. Irreparable Harm
To obtain a preliminary injunction, Plaintiffs must show a “significant risk of irreparable
harm if the injunction is withheld,” Nieves-Márquez v. P.R., 353 F.3d 108, 120 (1st Cir. 2002). It
is well-established “[t]he loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
Plaintiffs’ claims of irreparable harm absent expedited relief, however, are undermined by their
delay in raising constitutional claims related to the City’s denial of their application. See Gorman
v. Coogan, 273 F. Supp. 2d 131, 134 (D. Me. 2003) (noting that “[p]reliminary injunctions are
generally granted under the theory that there is an urgent need for speedy action to protect the
plaintiffs’ rights. Delay in seeking enforcement of those rights . . . tends to indicate at least a
reduced need for such drastic, speedy action”) (internal citation and quotation marks omitted).
Plaintiffs are also unlikely to suffer irreparable harm without a preliminary injunction
because they may still hold an event celebrating Constitution Day in their desired forum. Although
Plaintiffs have not applied to the City to hold an event since September 2017, the record in this
case indicates that the City will give Plaintiffs permission to communicate their ideas in several
ways, on or around Plaintiffs’ requested date this year. As the City has done in the past, it will
allow Plaintiffs to hold an event on City Hall Plaza. It will also give Plaintiffs the opportunity to
raise a non-secular flag on the City flagpole and display the Christian flag while on City Hall Plaza.
D. 1-4; D. 11 at 10. The City has only denied Plaintiffs permission to compel the City to endorse
a particular religion by raising the Christian flag. Given the range of options available to Plaintiffs
for their event on City-owned property, the Court concludes Plaintiffs are unlikely to suffer
irreparable harm without an injunction.
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C. The Balance of Harms and the Public Interest
The final considerations in weighing the grant of a preliminary injunction are “a balance
of equities in the plaintiff’s favor, and [] service of the public interest.” Arborjet, Inc. v. Rainbow
Treecare Sci. Advancements, 794 F. 3d 168, 171 (1st Cir. 2015). In support of their arguments,
Plaintiffs rightly remind the Court that “[t]he right of citizens to inquire, to hear, to speak, and to
use information to reach consensus is a precondition to enlightened self-government and a
necessary means to protect it.” Sindicato Puertorriqueño de Trabajadores v. Fortuño, 699 F.3d 1,
15 (1st Cir. 2012) (quoting Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010))
(internal quotation marks omitted). However, on this record, the Court is persuaded that
Defendants have not unlawfully restricted Plaintiffs’ ability to speak publicly.
On the other hand, Defendants risk serious consequences from the grant of a preliminary
injunction. Given that Plaintiffs have not established a substantial likelihood of success on the
merits, it makes little sense to require the City to fly the requested flag pending the adjudication
of this case. Raising the Christian flag might also possibly make the City vulnerable to
Establishment Clause claims and other constitutional challenges before this case had been decided
on the merits. D. 11 at 20. With these considerations in mind, the balance of harms to the parties
and the public interest weigh against granting the preliminary injunction that Plaintiffs seek.
VI. Conclusion
For these reasons, Plaintiffs’ motion for preliminary injunction, D. 7, is DENIED.
So Ordered.
/s/ Denise J. Casper United States District Judge
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