A public flagpole, a Christian flag, and the first amendment to the constitution
“We disagree with the views of the camp constitution,” he added, “but we defend its right to speak.”
The Biden administration also filed a brief request to the Supreme Court last week to overturn the First Circuit’s decision in the Shurtleff v City of Boston case, No. 20-1800. “The city generally cannot open its flagpole to flags of private civic and social groups, while otherwise excluding similar groups with religious views,” the letter said.
In previous cases, the Supreme Court sometimes struggled to distinguish government speech from private speech in a public forum. One concerned the Confederate flag.
In 2015, the Supreme Court ruled in the Walker v. Sons of Confederate Veterans case that Texas could refuse special license plates bearing the Confederate flag because the numbers were spoken by the government and therefore immune to review by the First Amendment. The vote was 5 to 4.
Texas had approved hundreds of specialty signs with all sorts of messages, including those for college alumni, sports fans, businesses, and service organizations. Others sent messages like “Choose Life”, “God Bless Texas” and “Fight Terrorism”.
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All were government speeches, wrote Judge Stephen G. Breyer for the majority.
“In general,” he wrote, “the government has the right to sponsor a program, advocate a policy, or take a position.” If this were not the case, the government would be powerless to promote vaccination or recycling.
In a different contradiction, Judge Samuel A. Alito Jr. challenged the idea that license plates that read “More likely to play golf” or support from the University of Oklahoma conveyed a government message. The first could not represent the state policy plausibly, he wrote; the second, in Texas at least, verged on treason during college football season.