WEBVTT - Boston Christian Flag Argument Falls Flat

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<v Speaker 1>This is Bloomberg Law with June Bresso from Bloomberg Radio.

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<v Speaker 1>The Supreme Court seems primed to rule against Boston for

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<v Speaker 1>refusing to allow an organization to fly a Christian flag

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<v Speaker 1>in front of city Hall. Justice Is across the ideological

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<v Speaker 1>spectrum suggested that Boston had created a public forum rather

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<v Speaker 1>than conveying government speech. Here are Justice Is, Samuel Alito

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<v Speaker 1>and Elena Kagan. But when you say anybody can speak

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<v Speaker 1>by putting up a flag with these few exceptions, are

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<v Speaker 1>you not creating a forum for private speech rather than

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<v Speaker 1>speaking on uh, speaking your own mind. A program that

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<v Speaker 1>basically now says and and and previously we welcome all

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<v Speaker 1>comers except for the most reprehensible, discriminatory speech and religious

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<v Speaker 1>See that's what this program is. And why should we

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<v Speaker 1>understand that to be government speech to say everything's good

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<v Speaker 1>except religion? And several of the justices pointed out that

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<v Speaker 1>it would be easy for the city to avoid having

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<v Speaker 1>to fly any and all flags by exercising more control

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<v Speaker 1>over the process. Here's Justice Amy Coney Barrett. The City

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<v Speaker 1>of Boston sits down, asks what's going to be expressed,

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<v Speaker 1>and says, yes, this is an idea that Boston can

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<v Speaker 1>get behind and a government official participates in the flag raising,

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<v Speaker 1>participates in the ceremony, communicating that yes, Boston is happy

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<v Speaker 1>to celebrate and communicate pride in um juneteenths, but no,

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<v Speaker 1>Boston is not going to participate in the flag raising

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<v Speaker 1>for the proud voice. My guest is first Amendment expert

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<v Speaker 1>Eugene Volk, a professor at u c l A Law School. Eugene,

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<v Speaker 1>what's the central issue here? So, the city of Boston

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<v Speaker 1>has flag poles, as it's usual with city flag poles,

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<v Speaker 1>that usually flies governments, American flag, state flag, city flags,

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<v Speaker 1>but sometimes the city allows people to put up their

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<v Speaker 1>own flags, and it's usually flags of foreign countries, and

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<v Speaker 1>the city says that's because it's a way of recognizing

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<v Speaker 1>the national origin of the many people who live in

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<v Speaker 1>Boston from all over the world. But sometimes it's also

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<v Speaker 1>flags related to events commemorations, let's say in the like

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<v Speaker 1>uh and also occasionally, for example of Pride flag gave

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<v Speaker 1>Pride flag was hoisted as well. So the question that

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<v Speaker 1>the court is facing is does it have to at

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<v Speaker 1>that point except really all proposed flags on the theory

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<v Speaker 1>that it's created a limited public forum where it can't

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<v Speaker 1>exclude flags, for example, because they're religious the particular claimant

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<v Speaker 1>here wanted to put up a Christian flag, or whether

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<v Speaker 1>there's no public forum. And this is all government speech.

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<v Speaker 1>Even when the government puts up other people's flags, it's

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<v Speaker 1>endorsed in them. And then it gets that they can choose,

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<v Speaker 1>and it could say, you know, we don't want to

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<v Speaker 1>endorse Christian flag, we don't want to endorse some other flag,

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<v Speaker 1>and the like. Occasionally we might fly some flag me

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<v Speaker 1>or maybe in honor of a visiting dignitary or uh

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<v Speaker 1>to mark some some important event or whatever else. But

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<v Speaker 1>it's up to us to decide that, just like when

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<v Speaker 1>we decide whether to accept a monument for placing in

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<v Speaker 1>a park. There has been a precedent on the subject

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<v Speaker 1>from UH some years ago. We they can choose and

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<v Speaker 1>we say, you know, some monuments we don't want, other

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<v Speaker 1>monuments we do want. So everybody agrees the city could

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<v Speaker 1>do that. The question is whether the city did do

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<v Speaker 1>that here or whether it took such a laws their attitudes,

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<v Speaker 1>like we put up pretty much everything apparently that never

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<v Speaker 1>rejected some other flag before that. It shows that between

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<v Speaker 1>that and the way that it's framed its policies. It

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<v Speaker 1>shows that it deliberately opened up a limited public form.

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<v Speaker 1>So I think the decision is going to end up

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<v Speaker 1>not saying much about what can be allowed with regard

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<v Speaker 1>to cities and flags, and more about just how the

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<v Speaker 1>particular details of the city's decision should be interpreted. As

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<v Speaker 1>a legal bath, the city argues that flying this flag

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<v Speaker 1>would amount to a government endorsement of religion. And you know,

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<v Speaker 1>when people look at those flagpoles, they assume that that's

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<v Speaker 1>the city of Boston. They don't assume that the third

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<v Speaker 1>poll is a separate organization has nothing to do with

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<v Speaker 1>the city. Well, there are too answers to One is

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<v Speaker 1>that this question of government endorsement ties in very directly

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<v Speaker 1>to this broader question that I mentioned, which is is

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<v Speaker 1>this a limited public forum or is this government speech?

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<v Speaker 1>Because the Supreme Court has made clear that in a

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<v Speaker 1>limited public forum, religious speakers are equally free to participate,

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<v Speaker 1>in part because the very fact that this is an

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<v Speaker 1>public forum open to all viewpoints means the government isn't endorsing.

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<v Speaker 1>The government doesn't endorse any particular view when it merely

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<v Speaker 1>complies with the subligation of viewpoint neutrals. On the other end,

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<v Speaker 1>if this is seen as woman's speech, then yes, by definition,

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<v Speaker 1>when the government says something, it's presumably endorsing it in

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<v Speaker 1>at least some measure, and therefore should be entitled to say, well,

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<v Speaker 1>we don't want to endorse religions. Now, let me also

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<v Speaker 1>suggest so that I think that as a factual matter,

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<v Speaker 1>And this is not something that came up in the

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<v Speaker 1>arguments much, but I think I think it's true as

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<v Speaker 1>a factual matter. Let's say somebody's walking by these flags

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<v Speaker 1>and he sees the flag with a star and crest,

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<v Speaker 1>and he knows and and color green. He knows those

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<v Speaker 1>are Muslim symbols. So he says, oh, wait a minute,

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<v Speaker 1>wait a minute, maybe the city is endorsing Islam. So

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<v Speaker 1>so what do we think about that? Well, the flag

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<v Speaker 1>I just described happens to be the flag of the

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<v Speaker 1>nation of Pakistan, unsurprisingly, because Pakistan is an overwhelmingly muslimination,

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<v Speaker 1>so does use, like many musliminations, Islamic symbolism. So presumably

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<v Speaker 1>the person would then call up the city if he's

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<v Speaker 1>really upset by the say how dare you endorse Islam?

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<v Speaker 1>And I think the city would say no, no, no, no,

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<v Speaker 1>that's the flag of Pakistan. We're not endorsing Islam. We're

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<v Speaker 1>just showing respect to people in Boston who are from Pakistan. Likewise,

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<v Speaker 1>I think if somebody sees a Christian flag flne first

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<v Speaker 1>of all, they might say, wait a minute, that might

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<v Speaker 1>be the flag of some country if they know of

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<v Speaker 1>this practice because some countries flags that many countries flags

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<v Speaker 1>do indeed have crosses them, um, because those because of

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<v Speaker 1>the Christian history of those countries. Um. But if the

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<v Speaker 1>person sort of says no, no, no, no, I know

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<v Speaker 1>that's not a country flag, so it calls up the city,

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<v Speaker 1>and the city says says, oh, well, no, no, this

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<v Speaker 1>is a limited public forum. We're not endorsing it. We

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<v Speaker 1>just have to accept it. See the Supreme Court decision.

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<v Speaker 1>So one way or the other, I expect most people

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<v Speaker 1>looking at those flags wouldn't wouldn't pay much attention to them.

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<v Speaker 1>To the extent they do, they would probably assume it's

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<v Speaker 1>some foreign countries flag. They just don't happen to know it.

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<v Speaker 1>And if they don't think of that, then if they

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<v Speaker 1>do call up the city, which I think would be

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<v Speaker 1>the reasonable thing to do, it you think there's something, something,

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<v Speaker 1>something bad a foot there, then there will be it

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<v Speaker 1>will be explained to them what's going on, uh, that

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<v Speaker 1>this isn't the city's endorsement of the religious message. So

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<v Speaker 1>I think it's a practical matter that's concerned about endorsement

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<v Speaker 1>is overstated. But as a legal matter, it maps very

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<v Speaker 1>closely on this question of whether it's a limited public

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<v Speaker 1>form or government speech. And if government speech, then the

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<v Speaker 1>government is entitled to avoid flying something in order to

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<v Speaker 1>avoid endorsing it. Whereas it's it's a limited public forum,

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<v Speaker 1>it's a different matter. What do you think the decision

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<v Speaker 1>will be? Will it be a unanimous decision? You know,

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<v Speaker 1>it's really hard to tell. I hate making predictions about that.

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<v Speaker 1>I don't think there's anything really clear from moral argument

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<v Speaker 1>as to how the justices will end up interpreting this

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<v Speaker 1>particular program. Again, I think there's broad acknowledgement on the

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<v Speaker 1>court's part night just from oural arguments from past decisions

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<v Speaker 1>that if it's a limited public form, of course they

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<v Speaker 1>can't exclude speech based on viewpoint or generally speaking, based

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<v Speaker 1>on its religiosity. There's a broad acknowledgement as if it's

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<v Speaker 1>government and speech. When the government gets to pick and choose.

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<v Speaker 1>The real dispute, if there will be much dispute on

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<v Speaker 1>the court, will be how do we classify this particular program.

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<v Speaker 1>Maybe it will be split by four or six three,

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<v Speaker 1>Maybe it'll lend up being nine zero. Which way exactly

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<v Speaker 1>it goes, I don't know. So the way the city

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<v Speaker 1>of Boston has it set up right now, would they

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<v Speaker 1>have to fly a flag with a swastika on it?

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<v Speaker 1>If the answer is that the city set up a

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<v Speaker 1>limited public forum, the answer is definitely. In a limited

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<v Speaker 1>public forum, the city can't discriminate based on viewpoint. It

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<v Speaker 1>can't discriminate against pro Nazi views, it can't discriminate against

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<v Speaker 1>pro communist views, it can't discriminate against pro Johattest view.

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<v Speaker 1>So if the city set up this limited public forum,

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<v Speaker 1>then then that cats that would have to fly the flag,

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<v Speaker 1>which again suggests that if the court says yes in

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<v Speaker 1>this case the things the city did lead to the

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<v Speaker 1>creation of a limited public forum, then from now on,

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<v Speaker 1>all cities, including I would imaginement especially Boston, will say

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<v Speaker 1>we're gonna try very very hard to avoid creating this

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<v Speaker 1>limited public form. We're either going to abandon the practice

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<v Speaker 1>applying other people's flags or at least make sure it's

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<v Speaker 1>sharply sharply limited, whether in the formal rules or if

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<v Speaker 1>it's set up in kind of the discretionary nature of

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<v Speaker 1>the decision making process where they routinely say, look, you know,

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<v Speaker 1>I'm sorry, we we don't want your flag. What do

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<v Speaker 1>you think the decision will be? Will it be a

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<v Speaker 1>unanimous decision? You know, it's really hard to tell. I

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<v Speaker 1>hate making predictions about that. I don't think there's anything

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<v Speaker 1>really clear from moral argument as to how the justices

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<v Speaker 1>will end up interpreting this particular program. Again, I think

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<v Speaker 1>there's broad acknowledgement on the Court's part, not just from

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<v Speaker 1>oural argument from past decisions that if it's a limited

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<v Speaker 1>public form of course, they can't exclude speech based on

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<v Speaker 1>viewpoint or generally speaking, based on its religiosity. There's a

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<v Speaker 1>broad acknowledgement as if it's government speech and the government

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<v Speaker 1>gets to pick and choose. The real dispute, if there

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<v Speaker 1>will be much dispute on the court, will be how

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<v Speaker 1>do we classify this particular program. Maybe it will be

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<v Speaker 1>split five four or six three, Maybe it'll end up

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<v Speaker 1>being nine zero. Which way exactly it goes, I don't know,

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<v Speaker 1>And I'm not sure it matters that terribly much, because again,

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<v Speaker 1>one way or the other, I think there'll be plenty

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<v Speaker 1>of room for cities going forward to set up the

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<v Speaker 1>flagpole programs if they have any such in a way

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<v Speaker 1>that allows them to pick and choose. That's exactly what

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<v Speaker 1>they will do. And I doubt there will be a

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<v Speaker 1>lot of presidential significance to this decision either, just because

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<v Speaker 1>again I think it will turn on the very peculiar

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<v Speaker 1>details of this particular programs. In past cases, has the

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<v Speaker 1>Court drawn a clear line between government speech and private speech.

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<v Speaker 1>Not a super clear line by any means. There is

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<v Speaker 1>some gray, and the clearest example of that is the

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<v Speaker 1>Sons of Confederate Veterans license plate design case, where the

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<v Speaker 1>court split sharply split five four on the question and

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<v Speaker 1>maybe got wrong. It's concluded that a program where the

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<v Speaker 1>state of Texas allowed hundreds of designs for license plates

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<v Speaker 1>that could be submitted by various groups, that that was

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<v Speaker 1>still government speech because traditions that license plate designs were

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<v Speaker 1>set up by the government, and because then a public

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<v Speaker 1>perceptions based in that tradition, and because it exercised some

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<v Speaker 1>control over those So that was a close case. But

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<v Speaker 1>there are other cases which weren't closed at all. So,

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<v Speaker 1>for example, the government was trying to prohibit derogatory trademark

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<v Speaker 1>mentality camp As. The case involving stand called the plants

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<v Speaker 1>and the government, so that's a racially derogatory term. And

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<v Speaker 1>the court unanimously said, well, this isn't government speech. This

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<v Speaker 1>is the government promoting private speech in the form of

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<v Speaker 1>private trademarks, and therefore it can't discriminate based on viewpoint.

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<v Speaker 1>That was unanimous. Likewise, in the Sumon case, so one

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<v Speaker 1>involved in monuments, the court nearly unanimously said, yeah, when

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<v Speaker 1>the city is deciding which monuments to accept for a

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<v Speaker 1>public park, of course that's government speech. So you've got

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<v Speaker 1>pretty clear things on both sides of the line. And then,

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<v Speaker 1>of course occasionally with most lines you get some ray

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<v Speaker 1>areas right next, but not a vastimous race. Thanks Eugene.

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<v Speaker 1>That's Eugene Vault of u c l A Law School,

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<v Speaker 1>And that's it for this edition of the Bloomberg Law Show.

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<v Speaker 1>I'm June Grosso and you're listening to Bloomberg