Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

SHURTLEFF ET AL. v. CITY OF BOSTON ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

No. 20–1800. Argued January 18, 2022—Decided May 2, 2022 Just outside the entrance to Boston City Hall, on City Hall Plaza, stand three flagpoles. Boston flies the American flag from the first pole and the flag of the Commonwealth of Massachusetts from the second. Bos- ton usually flies the city’s own flag from the third pole. But Boston has, for years, allowed groups to hold ceremonies on the plaza during which participants may hoist a flag of their choosing on the third pole in place of the city’s flag. Between 2005 and 2017, Boston approved the raising of about 50 unique flags for 284 such ceremonies. Most of these flags were other countries’, but some were associated with groups or causes, such as the Pride Flag, a banner honoring emergency medical service workers, and others. In 2017, Harold Shurtleff, the director of an organization called Camp Constitution, asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community; as part of that ceremony, he wished to raise what he described as the “Christian flag.” The commissioner of Bos- ton’s Property Management Department worried that flying a reli- gious flag at City Hall could violate the Establishment Clause and found no past instance of the city’s having raised such a flag. He there- fore told Shurtleff that the group could hold an event on the plaza but could not raise their flag during it. Shurtleff and Camp Constitution (petitioners) sued, claiming that Boston’s refusal to let them raise their flag violated, among other things, the First Amendment’s Free Speech Clause. The District Court held that flying private groups’ flags from City Hall’s third flagpole amounted to government speech, so Boston could refuse petitioners’ request without running afoul of the First Amendment. The First Circuit affirmed. This Court granted certiorari to decide whether the flags Boston allows others to fly express govern- ment speech, and whether Boston could, consistent with the Free 2 SHURTLEFF v. BOSTON

Syllabus

Speech Clause, deny petitioners’ flag-raising request. Held: 1. Boston’s flag-raising program does not express government speech. Pp. 5–12. (a) The Free Speech Clause does not prevent the government from declining to express a view. See Pleasant Grove City v. Summum, 555 U. S. 460, 467–469. The government must be able to decide what to say and what not to say when it states an opinion, speaks for the com- munity, formulates policies, or implements programs. The boundary between government speech and private expression can blur when, as here, the government invites the people to participate in a program. In those situations, the Court conducts a holistic inquiry to determine whether the government intends to speak for itself or, rather, to regu- late private expression. The Court’s cases have looked to several types of evidence to guide the analysis, including: the history of the expres- sion at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the govern- ment has actively shaped or controlled the expression. See Walker v. Texas Div., Sons of Confederate Veteran