Shurtleff v. City of Boston , 928 F.3d 166 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1898
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
[Hon. Denise J. Casper, U.S. District Judge]
Before
Torruella, Selya, and Lynch,
Circuit Judges.
Mathew D. Staver, with whom Roger K. Gannam, Horatio G. Mihet,
Daniel J. Schmid, and Liberty Counsel were on brief, for
appellants.
John Eidsmoe, Foundation for Moral Law, on brief for
Foundation for Moral Law, amicus curiae.
Daniel M. Ortner, Deborah J. La Fetra, and Pacific Legal
Foundation, on brief for Pacific Legal Foundation, amicus curiae.
Robert S. Arcangeli, Assistant Corporation Counsel, City of
Boston Law Department, with whom Eugene L. O'Flaherty, Corporation
Counsel, was on brief, for appellees.
Richard B. Katskee, Carmen N. Green, Patrick Grubel,
Americans United for Separation of Church and State, Jeffrey I.
Pasek, Cozen O'Connor, Steven M. Freeman, David L. Barkey, Amy E.
Feinman, Anti-Defamation League, Amrith Kaur, Cindy Nesbit and
Sikh Coalition, on brief for Religious and Civil-Rights
Organizations, amici curiae.
June 27, 2019
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TORRUELLA, Circuit Judge. This appeal arises from the
denial of a preliminary injunction that would have required the
City of Boston ("City") to temporarily raise a "Christian flag" on
a government-owned flagpole in front of its City Hall. Plaintiff-
appellant Harold Shurtleff is the director of Camp Constitution,
a volunteer association (and also a plaintiff-appellant here)
established in 2009 to "enhance understanding of the country's
Judeo-Christian moral heritage, the American heritage of courage
and ingenuity, [and] the genius of the United States Constitution,"
among other things. To commemorate Constitution and Citizenship
Day in September 2017, Shurtleff, in his role as director of Camp
Constitution, organized an event to be held at the plaza in front
of City Hall. Shurtleff alleges he intended this event to be a
celebration of the Christian community's civic and social
contributions to the City and the Commonwealth of Massachusetts,
as well as of Christian support for religious tolerance, the rule
of law, and the United States Constitution. Shurtleff sought a
permit from the City to raise a Christian flag1 on one of the City
Hall Plaza flagpoles during the proposed celebration. That flag
would have been raised next to poles flying the United States and
1 The parties refer to this flag as "the Christian flag." We use
the term "a Christian flag" throughout. In doing so, we do not
suggest that all Christian denominations accept that flag as the
flag of Christianity. There is no evidence of that before us.
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Massachusetts flags and in place of the City of Boston flag,
normally flown there.
The City denied Shurtleff's flag-raising request, but
otherwise allowed him and Camp Constitution to host their event at
City Hall Plaza. Shurtleff and Camp Constitution filed suit
almost a year later, raising Free Speech, Establishment Clause,
and Equal Protection claims, and seeking a preliminary injunction
to prevent the City from denying them a permit to raise the flag.
The district court denied the injunction and we now affirm.
I.
City Hall Plaza is at the entrance of Boston's City Hall.
A trio of eighty-three-foot tall poles that the City owns and
controls stands in the Plaza. Two of the poles usually fly the
United States and Massachusetts flags. At issue here is the third
pole, which displays the City's flag except when temporarily
replaced by another flag upon the request of a third-party person
or organization. Requests to replace the City's flag with another
flag are often accompanied by a proposed third-party event to take
place at a City-owned venue, such as the Plaza. In the past, the
pole in dispute has displayed country flags (according to the
complaint, those of Albania, Brazil, Cuba, Ethiopia, Italy,
Mexico, Panama, the People's Republic of China, Peru, Portugal,
and also that of the territory of Puerto Rico) as well as the flag
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of the Chinese Progressive Association, the LGBT rainbow flag, the
transgender rights flag, the Juneteenth flag commemorating the end
of slavery, and that of the Bunker Hill Association.
Some of these third-party flags contain what Shurtleff
alleges is religious symbolism. For instance, the Portuguese flag
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." The
Bunker Hill Flag contains a red St. George's cross. And the City
flag itself includes the Boston seal's Latin inscription, which
translates to "God be with us as he was with our fathers." But
nothing in the record indicates that the City has ever allowed the
flag of any religion to be raised on the flagpole at issue.2
Interested parties must apply to the City for a permit
before they can hold an event and/or raise a flag at the Plaza.
The City has published guidelines for permit applicants on its
website. According to the guidelines, permits may be denied for
several reasons, including that the applicant plans to host illegal
activities on City property or if the proposed event poses a danger
to public health and safety. Applications may also be denied if
2 Shurtleff avers that, in 2012, he applied for and received a
permit to display a flag on the pole at issue here. He does not
specify, however, the type of flag that the City allowed him to
raise.
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they do not comply with other relevant permit requirements,
ordinances, or regulations. The Office of Property and
Construction Management leads the application review process and
is charged with ensuring that all applications meet City
guidelines. And the Commissioner of Property Management himself
reviews flag-raising applications for the City Hall Plaza poles to
ensure that they are "consistent with the City's message, policies,
and practices." There is no written policy regarding which flags
may be raised on the City Hall poles.
On July 28, 2017, Shurtleff emailed the City requesting
a permit to "raise the Christian Flag on City Hall Plaza."
Shurtleff proposed several dates in September 2017 for the flag
raising and explained that Camp Constitution would sponsor the
event, which was also to include "short speeches by some local
clergy focusing on Boston's history." Shurtleff's email to the
City also included a photo of a Christian flag to be raised, which
has a white field and a red Latin cross inside a blue canton. On
September 5, 2017, Shurtleff received an email response from the
City denying his request to raise the flag. The City's response
did not offer a reason for the denial.
Unsatisfied, Shurtleff emailed the City the next day to
inquire about the "official reason" for denying his application.
Two days later, on September 8, Shurtleff received an email from
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Gregory T. Rooney, the City's Commissioner of Property Management,
explaining that his request was denied because "[t]he City of
Boston maintains a policy and practice of respectfully refraining
from flying non-secular flags on the City Hall flagpoles."
Rooney's email explained that such a "policy and practice is
consistent with [both] well-established First Amendment
jurisprudence . . . [and] with [the] City's legal authority to
choose how a limited government resource, like the City Hall
flagpoles, is used." Before signing off, Rooney informed
Shurtleff that the "City would be willing to consider a request to
fly a non-religious flag, should your organization elect to offer
one." Shurtleff's plan to host an event at City Hall Plaza,
however, was allowed to go forward.
Around September 13, 2017, Shurtleff submitted a renewed
event and flag-raising application to the City, asking to use City
Hall Plaza and its flagpoles for the "Camp Constitution Christian
Flag Raising." Shurtleff's event description explained that the
"Christian flag is an important symbol of our country's Judeo-
Christian heritage" and that the aim of the flag raising was to
celebrate "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." On September 14, Shurtleff's
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counsel sent a letter to Boston Mayor Martin Walsh -- with copy to
other City officials -- that enclosed Shurtleff's September 13
application to celebrate a "Christian Flag Raising." This letter
requested that the City approve Shurtleff's flag-raising
application on or before September 27, 2017. The City neither
issued a permit nor replied in reaction to Shurtleff's September 13
and 27 communications. Since then, Shurtleff has not applied to
hold any events on City grounds, with or without a flag.
Shurtleff and Camp Constitution filed suit on July 6,
2018, seeking injunctive relief, declaratory relief, and damages
against the City and Rooney in his official capacity as
Commissioner of the City's Property Management Division.
Appellants aver, inter alia, that the City "violated [their] First
Amendment right to Freedom of Speech by preventing [them] from
displaying the Christian flag as part of a celebration of the
Christian community and America's Judeo-Christian heritage to be
held at [the City's] designated public fora at City Hall Plaza and
[its] flagpoles." Shurtleff and Camp Constitution moved for a
preliminary injunction on July 9, 2018. The district court heard
argument on August 9, 2018, and issued an opinion denying their
request on August 29, 2018. Shurtleff v. City of Bos., 337 F.
Supp. 3d 66, 79 (D. Mass. 2018). Among other things, the court
held that the preliminary injunction could not proceed because the
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"City's selection and presentation of flags on the City flagpole
constitute government speech," id. at 73, and government speech
escapes scrutiny under the Free Speech Clause.
II.
Before it grants a preliminary injunction, a district
court is required to consider (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. Díaz-
Carrasquillo v. García-Padilla, 750 F.3d 7, 10 (1st Cir. 2014).
And when faced with an interlocutory appeal, as we are in this
case, we review the district court's decision to deny a preliminary
injunction for abuse of discretion but review its findings of fact
for clear error and its conclusions of law de novo. Am. Freedom
Def. Initiative v. Mass. Bay Transp. Auth., 781 F.3d 571, 578 (1st
Cir. 2015). Because Shurtleff and Camp Constitution did not
"'establish a strong likelihood that they will ultimately prevail'
on the merits of their First Amendment claim[s]," we affirm the
district court's denial of their request for a preliminary
injunction.3 Id.(quoting Sindicato Puertorriqueño de Trabajadores,
SEIU Local 1996 v. Fortuño, 699 F.3d 1, 10 (1st Cir. 2012)).
3 Since the "sine qua non of th[e] four-part inquiry is likelihood
of success on the merits," New Comm Wireless Servs., Inc. v.
SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002), and appellants
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III.
The centerpiece of Shurtleff's argument on appeal is
that the City's choice of which flags to raise temporarily in place
of the usual Boston flag on the City Hall Plaza flagpole at issue
does not constitute government speech and that the flagpole is
instead a designated public forum. We tackle first his challenge
to the district court's finding of government speech.
A.
Shurtleff argues that neither Walker v. Texas Division,
Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015), nor
Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) -- the
pair of recent cases the district court relied on to conclude that
the City's choice of which flags to fly on the flagpole at issue
is government speech -- supports a government speech label for a
third-party group's temporary display of a flag owned by the group.
Shurtleff explains that Summum resolved that the placement of
"permanent" monuments in a public park was a form of government
speech, which is inapposite to "temporarily" raising flags on a
city-owned pole. Further, Shurtleff argues that Walker reaffirmed
the relevance of permanence for finding government speech.
failed to meet that burden, we do not address the final three
factors of the inquiry for preliminary injunctive relief. See Am.
Freedom Def. Initiative, 781 F.3d at 578 n.4 (following this
approach).
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Shurtleff also maintains that the government "ownership" and
"control" elements that the Court identified in Walker and Summum
as creating government speech are not present for occasionally
displayed third-party flags on the City Hall flagpole. We
disagree with each of Shurtleff's points, but before responding we
find it helpful to revisit in some detail the contours that the
Supreme Court has established for the government speech doctrine.
In Summum, the Court considered "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. The Free Speech Clause did not mandate
that result, the Court concluded, because "the display of a
permanent monument in a public park is not a form of expression to
which forum analysis applies" since it is "best viewed as a form
of government speech." Id. The Court reached that conclusion
after making three observations. First, that "[g]overnments have
long used monuments to speak to the public." Id. at 470. Second,
that "[p]ublic parks are often closely identified in the public
mind with the government unit that owns the land," which is the
reason why "there is little chance that observers will fail to
appreciate the identity of the speaker" as the government when
they see a monument at a public park. Id. at 471-72. And third,
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that the government "has 'effectively controlled' the messages
sent by the monuments in the Park by exercising 'final approval
authority' over their selection." Id. at 473 (citing Johanns v.
Livestock Marketing Assn., 544 U.S. 550, 560-61 (2005)).
The Court reaffirmed the Summum framework six years
later in Walker. That case originated after a nonprofit
organization applied to the Texas Department of Motor Vehicles
Board for a specialty license plate featuring the Confederate flag.
The Board rejected the application, 135 S. Ct. at 2244, and members
of the nonprofit filed suit alleging that the rejection violated
their free speech rights. Not so, said the Court, holding that
"Texas's specialty license plate designs constitute government
speech," for which the Board was entitled to refuse issuing license
plates that feature the Confederate flag. Id. at 2253. The Court
pinpointed three factors as relevant to identifying government
speech in light of Summum: (1) whether the government has
traditionally used the message or conduct at issue to speak to the
public; (2) whether persons would interpret the speech as conveying
some message on the government's behalf; and (3) whether the
government maintains control over the selection of the message.
See id. at 2247. Applying these factors, the Court concluded that
the license plates are government speech because (1) "they long
have communicated messages from the States," id. at 2248; (2) they
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"are often closely identified in the public mind with the [State],"
id. (citing Summum, 555 U.S. at 472); and (3) "Texas maintains
direct control over the messages conveyed on its specialty plates,"
id. at 2249. The Court later remarked that Walker "likely marks
the outer bounds of the government-speech doctrine." Matal v.
Tam, 137 S. Ct. 1744, 1760 (2017).
The Summum/Walker three-part test controls here and each
of its factors strongly favors a finding that the City engages in
government speech when it decides which flags to display in place
of the City flag on the City Hall flagpole. This case lies well
within the established bounds of the government speech doctrine.
First, the government has long used flags to communicate
messages. See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319
U.S. 624, 632 (1943) ("The use of an emblem or flag to symbolize
some system, idea, institution, or personality, is a short cut
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 . . . ."); Griffin v. Sec'y of
Veterans Affairs, 288 F.3d 1309, 1324 (Fed. Cir. 2002) ("We have
no doubt that the government engages in speech when it flies its
own flags over a national cemetery, and that its choice of which
flags to fly may favor one viewpoint over another."). For
instance, "Congress has provided that the flag be flown at half-
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staff upon the death of the President, Vice President, and other
government officials 'as a mark of respect to their memory.'"
Texas v. Johnson, 491 U.S. 397, 427 (1989) (Rehnquist, C.J.,
dissenting) (quoting 36 U.S.C. § 175(m) (current version at 4
U.S.C. § 7(m))). And when a visiting dignitary comes to
Washington for a state or official visit, Blair House (the
President's guest house) flies the flag of the dignitary's country.
Mary Mel French, United States Protocol 298 (2010).4
4 Of course, flags themselves communicate a message. In a 1944
Presidential Proclamation, President Franklin Roosevelt stated,
"The flag of the United States of America is universally
representative of the principles of justice, liberty, and
democracy enjoyed by the people of the United States."
Proclamation No. 2605, 9 Fed. Reg. 1957 (Feb. 22, 1944). Congress
has provided that the American "flag represents a living country
and is itself considered a living thing." 4 U.S.C. § 8(j). When
United States Marines reached the top of Mount Suribachi at Iwo
Jima, "they raised a piece of pipe upright and from one end
fluttered a flag." Johnson, 491 U.S. at 425-26 (Rehnquist, C.J.,
dissenting). And troops marked their successful landing at Inchon
during the Korean war with the raising of an American flag. Id.
at 426.
Shurtleff's proposed flag is no different: it was designed to
incorporate certain Christian symbolism, including the Latin
cross. See Trunk v. City of San Diego, 629 F.3d 1099, 1110 (9th
Cir. 2011) (recognizing the Latin cross as "the preeminent symbol
of Christianity"); cf. Barnette, 319 U.S. at 632 ("[T]he church
speaks through the Cross, the Crucifix, the altar and shrine, and
clerical raiment."); Salazar v. Buono, 559 U.S. 700, 747 (2010)
(Stevens, J., dissenting) ("We have recognized the significance of
the Latin cross as a sectarian symbol, and no participant in this
litigation denies that the cross bears that social meaning.").
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The City partakes of similar practices and has
historically used the City Hall Plaza pole at issue here to convey
a message when the City flag is replaced with another flag. For
instance, the City flew the flag of Portugal on that pole to
recognize "the Portuguese community's presence and importance in
the State of Massachusetts." The City also sometimes displays its
municipal flag to signify that its mayor is present at a given
event. It therefore follows that the City recognizes flag flying
as a symbolic act and that it uses flags -- in particular those
raised on the City Hall Plaza pole -- to speak to the public.
Next, we examine whether an observer would identify the
City as the "speaker" when she sees a third-party flag, like a
Christian flag, raised in front of City Hall and flying alongside
the United States and Massachusetts flags. See Walker, 135 S. Ct.
at 2249; Summum, 555 U.S. at 471.5 We have little doubt that the
third-party flag's message would be attributed to the City.
5 In his Summum concurrence, Justice Souter proposed using a
"reasonable person" test to analyze the attribution prong. See
Summum, 555 U.S. at 487 (Souter, J., concurring) ("[T]o say when
speech is governmental, the best approach that occurs to me is to
ask whether a reasonable and fully informed observer would
understand the expression to be government speech, as distinct
from private speech the government chooses to oblige by allowing
the monument to be placed on public land."). If the Court adopts
this standard in a future case, it would be easily met here.
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If the observer arrived in time, she could well see a
City employee lower the Boston flag and replace it with a third
party's flag. The replacement flag would fly eighty-three feet
into the sky only steps away from the entrance to Boston's seat of
government, City Hall. That height would make the flag visible
from far away, even from places that have no view of what is
happening on the plaza below. And the third-party flag would keep
company with the United States flag and the flag of the
Commonwealth of Massachusetts, two powerful governmental symbols.
"In this context, there is little chance that observers will fail
to appreciate the identity of the speaker" as being the City.
Summum, 555 U.S. at 471.
Lastly, we assess if the City maintains control over the
selection of the messages it conveys on its City Hall flagpole.
See Walker, 135 S. Ct. at 2247. Shurtleff argues that, to find
government speech, Summum and Walker require the government to
take physical control over previously private expression, control
every aspect of its design and maintenance, and require
relinquishment of private ownership rights. We reject the
argument as a misreading of those cases. See Sutliffe v. Epping
Sch. Dist., 584 F.3d 314, 331 (1st Cir. 2009) (finding that links
placed on a government website were government speech and
emphasizing that the town "controlled the content of [the] message
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by exercising final approval authority over the [] selection of
the hyperlinks on the website"); cf. Ridley v. Mass. Bay Transp.
Auth., 390 F.3d 65, 82 (1st Cir. 2004) (rejecting the plaintiffs'
argument that the MBTA had created a public forum in part because
"[t]he MBTA's policy clearly evidenced an intent to maintain
control over the forum").
The record is clear that the City owns the flagpole at
issue and that it controls which third-party flags are raised in
place of the City flag. Interested persons and organizations must
apply to the City for a permit before they can raise a flag on
this flagpole. The City's Office of Property and Construction
Management then reviews all applications to ensure that they comply
with governing guidelines, and the Commissioner of Property
Management himself screens flag-raising requests for the pole at
issue to ensure that those requests are "consistent with the City's
message, policies, and practices." And unlike many other public
spaces controlled by a permitting process, for access to which the
City might grant thousands of applications a year, the flagpole at
issue is only rarely occupied by a third-party flag. Appellant's
complaint lists only fifteen instances, over a period of years, in
which the City has granted a third party's flag-flying request.
That rarity highlights the City's tight control over the flagpole
in question and that it engages in symbolic speech as to the
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replacement flags it allows. Moreover, the absence of a written
policy outlining the content of the flags that may be raised on
City Hall Plaza is irrelevant to the government speech analysis.
Summum, 555 U.S. at 473 (finding that the City there effectively
controlled its message even though it did not adopt an express
policy as to which monuments it would accept or reject until after
rejecting the plaintiff's proposed monument); see also Sutliffe,
584 F.3d at 332 (noting that the absence of a written policy is
"irrelevant to whether the [City's] actions constitute government
speech").
A straightforward assessment under the Summum/Walker
factors thus requires us to conclude that the City's decision about
which flags to display on the flagpole at issue is likely
government speech. However, as we noted before, Shurtleff insists
that the flagpole cannot convey government speech because the flags
raised on it are those of third parties and they are only displayed
temporarily. This argument is unavailing. First, the fact that
the flags are privately owned (or at least not owned by the City)
changes nothing because the City enjoys the "same freedom to
express its views when it receives assistance from private sources
for the purpose of delivering a government-controlled message"
like that which the City Hall flagpole communicates. Summum, 555
U.S. at 468. Second, Shurtleff is wrong to suggest that permanence
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is required for there to be government speech. Shurtleff contends
that the Summum Court emphasized the permanent nature of monuments
as supporting a finding of government speech, and that Walker
reiterated the relevance of permanence in government speech
analysis. But the Walker Court actually clarified that permanence
is not a necessary element of its government speech framework.6
See Walker, 135 S. Ct. at 2249 ("That is not to say that every
element of our discussion in Summum is relevant here. For
instance, in Summum we emphasized that monuments were 'permanent'
. . . .").
Shurtleff argues that this is a case in which the City
is using government speech doctrine "as a subterfuge for favoring
certain private speakers over others based on viewpoint," Summum,
555 U.S. at 473, or as a means of "silenc[ing] or muffl[ing] the
expression of disfavored viewpoints," Matal, 137 S. Ct. at 1758.
We think not. The record shows that the City has "regularly"
granted permission for religious events to be held on City Hall
Plaza. And the City has not refused Shurtleff permission to hold
6 We also note that Shurtleff's argument takes Summum's discussion
of permanence out of context. There, it was important that the
monuments were permanent because public parks could "accommodate
only a limited number of permanent monuments." Summum, 555 U.S.
at 478. Thus, the real issue was not permanence, but space. See
Walker, 135 S. Ct. at 2261 (Alito, J., dissenting) ("A final factor
that was important in Summum was space.").
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an event at City Hall Plaza that celebrates Christianity and
includes speeches by local clergy. Nor has it refused him the
opportunity to request to raise a flag that conforms with City
policy.
We now turn to Shurtleff's argument that the government
speech doctrine is inapplicable here because the City has
designated the flagpole as a public forum. Shurtleff's success
on this theory is also unlikely because that argument is precluded
by our government-speech finding. Walker, 135 S. Ct. at 2250
("Because the State is speaking on its own behalf, the First
Amendment strictures that attend the various types of government-
established forums do not apply.").
However, the argument also fails under traditional
public-forum analysis. "The government does not create a public
forum by inaction or by permitting limited discourse, but only by
intentionally opening a nontraditional forum for public
discourse." Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473
U.S. 788, 802 (1985). To ascertain if the City has designated the
flagpole as a public forum, we look to the City's "policy and
practice" and may also consider "the nature of the [flagpole] and
its compatibility with expressive activity." See id. However,
"[w]e will not find that a public forum has been created in the
face of clear evidence of a contrary intent . . . nor will we infer
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that the government intended to create a public forum when the
nature of the property is inconsistent with expressive activity."
Id. at 803.
In Shurtleff's view, the City Hall pole at issue is a
designated public forum because the application to request a permit
for its use states that, "[w]here 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."
But other than that statement, the record is barren of any
indication that the City "intentionally open[ed] a nontraditional
forum," on that flagpole, "for public discourse." Sutliffe, 584
F.3d at 333 (citing Del Gallo v. Parent, 557 F.3d 58, 72 (1st Cir.
2009)). Instead, the record contains clear evidence suggesting
that the City did not intend to create a public forum in the choice
of which flags to fly from that pole. As we have noted before,
the City strictly controls which third-party flags are raised on
the City Hall pole, with the Commissioner of Property Management
screening all proposed flags for "consisten[cy] with the City's
message, policies, and practices." The City has articulated a
policy of not flying non-secular flags in place of the City flag
and its rejection of Shurtleff's flag-flying request is consistent
with that policy.
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Moreover, the nature of this flagpole is also
inconsistent with unregulated expressive activity. City Hall
Plaza has three flagpoles, and only one of these is occasionally
available for the temporary use of the flags of qualifying third
parties. The Plaza, therefore, may only accommodate a very
limited number of flag-flying requests. The City may reasonably
conclude that opening the pole for widespread public use could
create disruptions that compromise the access and operations of
City Hall. Cf. Summum, 555 U.S. at 478 (noting that "[t]he forum
doctrine has been applied in situations in which government-owned
property or a government program was capable of accommodating a
large number of public speakers without defeating the essential
function of the land or the program"). Accordingly, Shurtleff's
argument that the choice of flag cannot be government speech
because the City has designated the flagpole as a public forum
lacks any likelihood of success.
Considering the foregoing and the record as it is at
present, we find that the City's choice of which flags to raise on
the flagpole at issue likely conveys government speech. And
because this is the case, the City retains the ability not to
promote or be associated with certain flags flown in place of the
City flag on the flagpole in dispute. Thus, Shurtleff and Camp
Constitution failed to establish a likelihood of success on their
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free speech claim against the City. See Summum, 555 U.S. at 467
("The Free Speech Clause restricts government regulation of
private speech; it does not regulate government speech." (citing
Johanns, 544 U.S. at 553)).7
B.
Our final task is to review the district court's
determination that Shurtleff's Establishment Clause claim is
unlikely to succeed.
Shurtleff argues that the City violated the
Establishment Clause by excluding Camp Constitution's religious
speech while flying what he calls "other religious flags." He
alleges, for example, that the City has flown the flag of Portugal
and the Bunker Hill Association flag, which both contain some
religious symbols. But a flag that references religion by using
religious symbols in part of its field is not itself a religious
flag. And as appellants conceded at oral argument and is also
evident from the record, there is no evidence that the City has
ever raised the flag of any religion on the flagpole at issue.
7 We also note that, in making choices about which flags to allow
as temporary replacements for the City flag, the City and its
officials are subject to "the democratic electoral process."
Walker, 135 S. Ct. at 2245; Sutliffe, 584 F.3d at 331 n.9 ("If the
voters do not like those in governance or their government speech,
they may vote them out of office or limit the conduct of those
officials 'by law, regulation, or practice.'" (quoting Summum,
555 U.S. at 468) (citation omitted)).
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Shurtleff has not established that the City's policy and practice
shows a preference for one religion or religious denomination over
another.
Next, Shurtleff claims that the City acts in
contravention of the Establishment Clause "by allowing the
numerous and varied [secular] flags of a broad spectrum of private
organizations while specifically excluding Camp Constitution's
'non-secular' flag." But the "secular" flags -- really, flags of
secular organizations or causes -- the City has allowed to fly
instead of the City flag do not show that the City has espoused a
preference for non-religion over religion. And the record
contains no evidence that would suggest otherwise. Thus, in light
of the current record, we agree with the district court that the
likelihood of success of Shurtleff's Establishment Clause claim is
dim.
IV.
For the reasons explained above, the district court did
not abuse its discretion in denying Shurtleff's request for a
preliminary injunction and its judgment is affirmed.
Affirmed.
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