Thread by @stevenmazie

At 10am the Boston flagpole hearing at SCOTUS begins and I will be tweeting & analyzing it here. The case involves free speech but has strong religious-liberty undertones. 👇

https://twitter.com/stevenmazie/status/1483272763188166659

Justice Kagan asks: does the city really have to put a swastika flag if the flagpole is a designated public forum?

A: yes

Kagan: so cities just can't have such a policy, right?

A: no

Barrett suggests another way to get around this is for Boston to say, this flagpole is our speech and we're only putting up what we want to say. Being more explicit that this is government speech.

Mathew Staver, lawyer for petitioner, says that may be OK but not if it's designed to discriminate against disfavored forms of speech.

Breyer: 45 of the 50 flags Boston has flown are national flags, so city didn't need to be too discriminating. The flagpoles are right in front of city hall. "Everybody in his right mind" will think a Christian flag represents the government's position!

Kagan: "if you're on the street in Boston, why would you think this is anything other than the government flying a flag?"

Staver: an informed observer would understand the history...

Kagan: whoa that would be a very well informed observer!

Alito: one of the flags is China, another Cuba...that might be "shocking" too?

Staver: certainly!

Kagan: is that a really certainly? international flags fly all the time here.

Sotomayor: to an ordinary observer, you think it's city hall speaking. You're asking us to import a fiction that the observer is going to link the Christian flag to a Christian event taking place and understand that it's not the city speaking?

Staver: not really

Breyer "I'm sure this is a useless question."

Breyer: can't this be settled?

Staver: Boston has engaged in admitted viewpoint discrimination.

Next up: Sopan Joshi from DOJ, also arguing against Boston

Joshi: government can express its own viewpoint all it likes BUT here Boston has opened up its own property to third parties so the city cannot bar religious viewpoints.

Gorsuch: what's at stake in line between government speech and public forums?

Joshi: the Q is always "who is speaking" and govt can't put its stamp on some private speakers and not others. Highly fact-bound each time.

Joshi: Boston created a forum here, even if it's a non-public forum. Flags were pproved without much if any real scrutiny except here.

Kagan: but reasonable observers could still think this is government speech, right?

Joshi: reasonable observers should be conceived as having basic knowledge of the thing they are observing [lamb's chapel & other cases]

Kagan: that does verge on a fiction, as per Sotomayor's earlier statement. most people will think Boston has decided to fly a Christian flag.

Joshi: should be easy for Boston to fix this: could have a two-track approach, limit to flags of countries.

Gorsuch: but prohibiting all religious views, is that ok?

Joshi: not ok

Barrett: is govt control over the content of the speech the most important factor determining if it's govt speech or not?

Joshi: yes

Alito: is it govt speech if govt allows people to speak subject to censorship?

Joshi: no...

Joshi: was Boston hosting a symposium, or an open-mic night?

Breyer: more like a symposium, right? since it's almost exclusively country flags? "what do I do?"

Kagan: city couldn't keep out the KKK flag if it has to accept all comers, right?

Joshi: shouldn't come to that - city could exclude if reserved for countries, eg

Joshi: they can draw lines based on content or speaker identity. a no-terrorist rule is ok! but can't do it based on viewpoint. If you can raise a BLM flag, you'd have to permit a Proud Boys flag.

Next up: lawyer for Boston rises to defend the city's decision not to fly the Christian flag

Douglas Hallward-Driemeier: exercising final approval authority turns it into government speech, as in Summum. And no purely private messages here as in Walker (TX vanity license-plate case).

For first time in a while, Thomas does not ask the first question. It's Roberts.

Roberts: does Boston really approve of the Montreal Canadiens?

A: mayor of Boston lost a bet about a Bruins game, which is why that flag went up

H-D: Boston isn't going to put up religious flags, wants to stay neutral.

Alito: is that consistent with free speech clause?

H-D: it's the government speaking, including celebrating diversity of Boston by putting up flags of countries

Alito: is being in front of city hall dispositive?

H-D: yes.

Sotomayor: are we talking about the old policy or the new one?

H-D: there isn't really a difference

Soto: yes there is

H-D: parties agree it's the same policy - reference to Establishment Clause

Kavanaugh: seems root cause of this is a mistaken view about the Establishment Clause. So many cases say it's not an EC violation to put up religious speech after lots of non-religious speech. See Becket Fund brief.

[This point is basically the exact point re: the Maine school-funding plan challenged this term in Carson v. Makin. Maine was trying not to violate the EC by not funding religious schools but SCOTUS conservatives say that no such violation is at stake or a worry.]

H-D: if we erred and mistakenly made this a public forum, then, it's true, we can't bar the Christian flag or any flag

H-D: city's own speech CAN be viewpoint "discriminatory" to craft its own message

H-D: no city can run the risk of having to fly a swastika in front of city hall!

Kagan again asking why this wasn't settled, suggesting the city official may have made a mistake when rejecting it.

H-D: we don't want to fly swastika, ISIS flag, confederate flag, NY Yankee flag any of those! not to say the Christian flag is comparable to any of those.

Alito: what about the North Korean flag or the Taliban flag, would you raise those?!

Alito: national flags, city holidays, anything else?

H-D: any event or occasion

Barrett: wasn't the Christian flag for Constitution Day, an event?

H-D: yes and it would have been approved if it was not presented as a Christian flag but as the group's flag

Kagan: flags going up and down isn't like putting a cross right on city hall; so it's not an establishment clause violation and excluding religious speech is a violation of free speech

[Kagan seems to be a vote against Boston. She sure didn't earlier in the hearing.]

Thomas: what's your def of "diversity" if it excludes Christians in Boston?

H-D: we're talking about national-origin diversity only

Boston is going to lose, and lose badly. Maybe unanimously.

A key for justices left and right seems to be this: Boston's decision to reject Camp Constitution's Christian flag was based on the misconceived notion that flying it would violate the Establishment Clause.