The argument in Shurtleff v. City of Boston is lively over the refusal of Boston to allow a religious flag to be flown outside of city hall. The issue is whether such control over flags is "government speech."
...Justices are probing whether Al Qaeda or the KKK can claim the right to fly flags if this is an open forum.
Boston is up. It admits that it could not bar the flag if this is an open forum but insists that this is government speech (where it can chose favorites). "Governments speak from government-owned flagpoles."
...Boston was just asked if it was "reverse engineering" the purpose of this flag program after it was sued. Justice Alito is noting that this purpose seemed opportunistic after being sued.
...Counsel is defended the policy as "consistent with the principles of the establishment clause" but Alito shot back "is it consistent with the free speech clause?"
...Counsel continues to emphasize the use of "we" on the blog to mean that it refers to the government. That strikes me as pretty WEak. Counsel is also struggling with the fact that the current policy seems to be different from the one that was the subject of the summary judgment
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