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The dispute arose over Boston's practice of allowing private groups to hold flag-raising events using one of three flagpoles on the plaza in front of City Hall. In a concurring opinion, conservative Justices Samuel Alito, Clarence Thomas and Neil Gorsuch agreed with the outcome of the case, but not Breyer's reasoning, which they suggested may not always ferret out when a government is "surreptitiously engaged" in censorship of private speech.
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The Supreme Court, which has a 6-3 conservative majority, has taken an expansive view of religious rights and has been increasingly receptive to arguments that governments are acting with hostility toward religion.Īt issue was whether the flagpole became a public forum meriting free speech protections under the First Amendment to bar discrimination based on viewpoint, as the plaintiffs claimed, or whether it represented merely a conduit for government speech not warranting such protection, as Boston claimed.īreyer, who is retiring at the end of the court's current term, wrote that Boston's "lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech." Denying Camp Constitution's request "discriminated based on religious viewpoint" and violated the First Amendment's free speech protections, Breyer added. As a result of the litigation, Boston last October halted the program to ensure that the city cannot be compelled to "publicize messages antithetical to its own." Boston has said that requiring it to open the flagpole to "all comers" could force it to raise flags promoting division or intolerance, such as a swastika or a terrorist group.