Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.
Speaker 1: The Supreme Court seems primed to rule against Boston for
Speaker 1: refusing to allow an organization to fly a Christian flag
Speaker 1: in front of city Hall. Justice Is across the ideological
Speaker 1: spectrum suggested that Boston had created a public forum rather
Speaker 1: than conveying government speech. Here are Justice Is, Samuel Alito
Speaker 1: and Elena Kagan. But when you say anybody can speak
Speaker 1: by putting up a flag with these few exceptions, are
Speaker 1: you not creating a forum for private speech rather than
Speaker 1: speaking on uh, speaking your own mind. A program that
Speaker 1: basically now says and and and previously we welcome all
Speaker 1: comers except for the most reprehensible, discriminatory speech and religious
Speaker 1: See that's what this program is. And why should we
Speaker 1: understand that to be government speech to say everything's good
Speaker 1: except religion? And several of the justices pointed out that
Speaker 1: it would be easy for the city to avoid having
Speaker 1: to fly any and all flags by exercising more control
Speaker 1: over the process. Here's Justice Amy Coney Barrett. The City
Speaker 1: of Boston sits down, asks what's going to be expressed,
Speaker 1: and says, yes, this is an idea that Boston can
Speaker 1: get behind and a government official participates in the flag raising,
Speaker 1: participates in the ceremony, communicating that yes, Boston is happy
Speaker 1: to celebrate and communicate pride in um juneteenths, but no,
Speaker 1: Boston is not going to participate in the flag raising
Speaker 1: for the proud voice. My guest is first Amendment expert
Speaker 1: Eugene Volk, a professor at u c l A Law School. Eugene,
Speaker 1: what's the central issue here? So, the city of Boston
Speaker 1: has flag poles, as it's usual with city flag poles,
Speaker 1: that usually flies governments, American flag, state flag, city flags,
Speaker 1: but sometimes the city allows people to put up their
Speaker 1: own flags, and it's usually flags of foreign countries, and
Speaker 1: the city says that's because it's a way of recognizing
Speaker 1: the national origin of the many people who live in
Speaker 1: Boston from all over the world. But sometimes it's also
Speaker 1: flags related to events commemorations, let's say in the like
Speaker 1: uh and also occasionally, for example of Pride flag gave
Speaker 1: Pride flag was hoisted as well. So the question that
Speaker 1: the court is facing is does it have to at
Speaker 1: that point except really all proposed flags on the theory
Speaker 1: that it's created a limited public forum where it can't
Speaker 1: exclude flags, for example, because they're religious the particular claimant
Speaker 1: here wanted to put up a Christian flag, or whether
Speaker 1: there's no public forum. And this is all government speech.
Speaker 1: Even when the government puts up other people's flags, it's
Speaker 1: endorsed in them. And then it gets that they can choose,
Speaker 1: and it could say, you know, we don't want to
Speaker 1: endorse Christian flag, we don't want to endorse some other flag,
Speaker 1: and the like. Occasionally we might fly some flag me
Speaker 1: or maybe in honor of a visiting dignitary or uh
Speaker 1: to mark some some important event or whatever else. But
Speaker 1: it's up to us to decide that, just like when
Speaker 1: we decide whether to accept a monument for placing in
Speaker 1: a park. There has been a precedent on the subject
Speaker 1: from UH some years ago. We they can choose and
Speaker 1: we say, you know, some monuments we don't want, other
Speaker 1: monuments we do want. So everybody agrees the city could
Speaker 1: do that. The question is whether the city did do
Speaker 1: that here or whether it took such a laws their attitudes,
Speaker 1: like we put up pretty much everything apparently that never
Speaker 1: rejected some other flag before that. It shows that between
Speaker 1: that and the way that it's framed its policies. It
Speaker 1: shows that it deliberately opened up a limited public form.
Speaker 1: So I think the decision is going to end up
Speaker 1: not saying much about what can be allowed with regard
Speaker 1: to cities and flags, and more about just how the
Speaker 1: particular details of the city's decision should be interpreted. As
Speaker 1: a legal bath, the city argues that flying this flag
Speaker 1: would amount to a government endorsement of religion. And you know,
Speaker 1: when people look at those flagpoles, they assume that that's
Speaker 1: the city of Boston. They don't assume that the third
Speaker 1: poll is a separate organization has nothing to do with
Speaker 1: the city. Well, there are too answers to One is
Speaker 1: that this question of government endorsement ties in very directly
Speaker 1: to this broader question that I mentioned, which is is
Speaker 1: this a limited public forum or is this government speech?
Speaker 1: Because the Supreme Court has made clear that in a
Speaker 1: limited public forum, religious speakers are equally free to participate,
Speaker 1: in part because the very fact that this is an
Speaker 1: public forum open to all viewpoints means the government isn't endorsing.
Speaker 1: The government doesn't endorse any particular view when it merely
Speaker 1: complies with the subligation of viewpoint neutrals. On the other end,
Speaker 1: if this is seen as woman's speech, then yes, by definition,
Speaker 1: when the government says something, it's presumably endorsing it in
Speaker 1: at least some measure, and therefore should be entitled to say, well,
Speaker 1: we don't want to endorse religions. Now, let me also
Speaker 1: suggest so that I think that as a factual matter,
Speaker 1: And this is not something that came up in the
Speaker 1: arguments much, but I think I think it's true as
Speaker 1: a factual matter. Let's say somebody's walking by these flags
Speaker 1: and he sees the flag with a star and crest,
Speaker 1: and he knows and and color green. He knows those
Speaker 1: are Muslim symbols. So he says, oh, wait a minute,
Speaker 1: wait a minute, maybe the city is endorsing Islam. So
Speaker 1: so what do we think about that? Well, the flag
Speaker 1: I just described happens to be the flag of the
Speaker 1: nation of Pakistan, unsurprisingly, because Pakistan is an overwhelmingly muslimination,
Speaker 1: so does use, like many musliminations, Islamic symbolism. So presumably
Speaker 1: the person would then call up the city if he's
Speaker 1: really upset by the say how dare you endorse Islam?
Speaker 1: And I think the city would say no, no, no, no,
Speaker 1: that's the flag of Pakistan. We're not endorsing Islam. We're
Speaker 1: just showing respect to people in Boston who are from Pakistan. Likewise,
Speaker 1: I think if somebody sees a Christian flag flne first
Speaker 1: of all, they might say, wait a minute, that might
Speaker 1: be the flag of some country if they know of
Speaker 1: this practice because some countries flags that many countries flags
Speaker 1: do indeed have crosses them, um, because those because of
Speaker 1: the Christian history of those countries. Um. But if the
Speaker 1: person sort of says no, no, no, no, I know
Speaker 1: that's not a country flag, so it calls up the city,
Speaker 1: and the city says says, oh, well, no, no, this
Speaker 1: is a limited public forum. We're not endorsing it. We
Speaker 1: just have to accept it. See the Supreme Court decision.
Speaker 1: So one way or the other, I expect most people
Speaker 1: looking at those flags wouldn't wouldn't pay much attention to them.
Speaker 1: To the extent they do, they would probably assume it's
Speaker 1: some foreign countries flag. They just don't happen to know it.
Speaker 1: And if they don't think of that, then if they
Speaker 1: do call up the city, which I think would be
Speaker 1: the reasonable thing to do, it you think there's something, something,
Speaker 1: something bad a foot there, then there will be it
Speaker 1: will be explained to them what's going on, uh, that
Speaker 1: this isn't the city's endorsement of the religious message. So
Speaker 1: I think it's a practical matter that's concerned about endorsement
Speaker 1: is overstated. But as a legal matter, it maps very
Speaker 1: closely on this question of whether it's a limited public
Speaker 1: form or government speech. And if government speech, then the
Speaker 1: government is entitled to avoid flying something in order to
Speaker 1: avoid endorsing it. Whereas it's it's a limited public forum,
Speaker 1: it's a different matter. What do you think the decision
Speaker 1: will be? Will it be a unanimous decision? You know,
Speaker 1: it's really hard to tell. I hate making predictions about that.
Speaker 1: I don't think there's anything really clear from moral argument
Speaker 1: as to how the justices will end up interpreting this
Speaker 1: particular program. Again, I think there's broad acknowledgement on the
Speaker 1: court's part night just from oural arguments from past decisions
Speaker 1: that if it's a limited public form, of course they
Speaker 1: can't exclude speech based on viewpoint or generally speaking, based
Speaker 1: on its religiosity. There's a broad acknowledgement as if it's
Speaker 1: government and speech. When the government gets to pick and choose.
Speaker 1: The real dispute, if there will be much dispute on
Speaker 1: the court, will be how do we classify this particular program.
Speaker 1: Maybe it will be split by four or six three,
Speaker 1: Maybe it'll lend up being nine zero. Which way exactly
Speaker 1: it goes, I don't know. So the way the city
Speaker 1: of Boston has it set up right now, would they
Speaker 1: have to fly a flag with a swastika on it?
Speaker 1: If the answer is that the city set up a
Speaker 1: limited public forum, the answer is definitely. In a limited
Speaker 1: public forum, the city can't discriminate based on viewpoint. It
Speaker 1: can't discriminate against pro Nazi views, it can't discriminate against
Speaker 1: pro communist views, it can't discriminate against pro Johattest view.
Speaker 1: So if the city set up this limited public forum,
Speaker 1: then then that cats that would have to fly the flag,
Speaker 1: which again suggests that if the court says yes in
Speaker 1: this case the things the city did lead to the
Speaker 1: creation of a limited public forum, then from now on,
Speaker 1: all cities, including I would imaginement especially Boston, will say
Speaker 1: we're gonna try very very hard to avoid creating this
Speaker 1: limited public form. We're either going to abandon the practice
Speaker 1: applying other people's flags or at least make sure it's
Speaker 1: sharply sharply limited, whether in the formal rules or if
Speaker 1: it's set up in kind of the discretionary nature of
Speaker 1: the decision making process where they routinely say, look, you know,
Speaker 1: I'm sorry, we we don't want your flag. What do
Speaker 1: you think the decision will be? Will it be a
Speaker 1: unanimous decision? You know, it's really hard to tell. I
Speaker 1: hate making predictions about that. I don't think there's anything
Speaker 1: really clear from moral argument as to how the justices
Speaker 1: will end up interpreting this particular program. Again, I think
Speaker 1: there's broad acknowledgement on the Court's part, not just from
Speaker 1: oural argument from past decisions that if it's a limited
Speaker 1: public form of course, they can't exclude speech based on
Speaker 1: viewpoint or generally speaking, based on its religiosity. There's a
Speaker 1: broad acknowledgement as if it's government speech and the government
Speaker 1: gets to pick and choose. The real dispute, if there
Speaker 1: will be much dispute on the court, will be how
Speaker 1: do we classify this particular program. Maybe it will be
Speaker 1: split five four or six three, Maybe it'll end up
Speaker 1: being nine zero. Which way exactly it goes, I don't know,
Speaker 1: And I'm not sure it matters that terribly much, because again,
Speaker 1: one way or the other, I think there'll be plenty
Speaker 1: of room for cities going forward to set up the
Speaker 1: flagpole programs if they have any such in a way
Speaker 1: that allows them to pick and choose. That's exactly what
Speaker 1: they will do. And I doubt there will be a
Speaker 1: lot of presidential significance to this decision either, just because
Speaker 1: again I think it will turn on the very peculiar
Speaker 1: details of this particular programs. In past cases, has the
Speaker 1: Court drawn a clear line between government speech and private speech.
Speaker 1: Not a super clear line by any means. There is
Speaker 1: some gray, and the clearest example of that is the
Speaker 1: Sons of Confederate Veterans license plate design case, where the
Speaker 1: court split sharply split five four on the question and
Speaker 1: maybe got wrong. It's concluded that a program where the
Speaker 1: state of Texas allowed hundreds of designs for license plates
Speaker 1: that could be submitted by various groups, that that was
Speaker 1: still government speech because traditions that license plate designs were
Speaker 1: set up by the government, and because then a public
Speaker 1: perceptions based in that tradition, and because it exercised some
Speaker 1: control over those So that was a close case. But
Speaker 1: there are other cases which weren't closed at all. So,
Speaker 1: for example, the government was trying to prohibit derogatory trademark
Speaker 1: mentality camp As. The case involving stand called the plants
Speaker 1: and the government, so that's a racially derogatory term. And
Speaker 1: the court unanimously said, well, this isn't government speech. This
Speaker 1: is the government promoting private speech in the form of
Speaker 1: private trademarks, and therefore it can't discriminate based on viewpoint.
Speaker 1: That was unanimous. Likewise, in the Sumon case, so one
Speaker 1: involved in monuments, the court nearly unanimously said, yeah, when
Speaker 1: the city is deciding which monuments to accept for a
Speaker 1: public park, of course that's government speech. So you've got
Speaker 1: pretty clear things on both sides of the line. And then,
Speaker 1: of course occasionally with most lines you get some ray
Speaker 1: areas right next, but not a vastimous race. Thanks Eugene.
Speaker 1: That's Eugene Vault of u c l A Law School,
Speaker 1: And that's it for this edition of the Bloomberg Law Show.
Speaker 1: I'm June Grosso and you're listening to Bloomberg