P(ublic) S(ervice) A(nalysis)

I’m resentfully resisting a lawsplainer because this is short, simple, and clearly written, and you can read it yourself. https://t.co/y4mjcqJMyW

— JDMandelHat (@Popehat) May 2, 2022

/2 No, but seriously: you are absolutely capable of reading and understanding the gist of this opinion. It answers in plain language 95% of the BUT WHATABOUT questions I am seeing.

— JDMandelHat (@Popehat) May 2, 2022

It really is a short and, for a well-reasoned Supreme Court opinion, fairly easy to follow opinion. There is disagreement on what analysis the conclusion should rest on, but the opinion is unanimous.  Here's the factual precis:

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 Boston’s Property Management Department worried that flying a religious 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.

A brief reminder to non-lawyers:  legal analysis is predicated on the facts presented.  Change the facts, change the outcome.  What the Court did, in a very concise opinion, is apply the law to these facts.  This is how the Court proceeded:

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 expression 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. 

I'm leaving out the citations to case law and analysis of same.  Again, you really want to know: read the opinion.  The Court's review of the facts finds there is merit to arguments on both sides (no, this is not Charlottesville). Flags do convey messages; the Court isn't stupid.  The question is:  whether allowing private concerns to raise flags on City Hall Plaza conveys a government message. "The most salient feature of this case is that Boston neither actively controlled these flag raisings nor shaped the messages the flags sent."

The facts matter, you see.

Boston’s come-one-come-all practice— except, that is, for petitioners’ flag—is much closer to the Patent and Trademark Office’s policy of registering all manner of trademarks in Matal, see 582 U. S., at ___, ___. All told, Boston’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads the Court to classify the third-party flag raisings as private, not government, speech. Pp. 6–12.

Or, as Frank Zappa memorably put it:  the crux of the biscuit is the apostrophe.

Seriously, that's where the opinion hinges.  The "lack of meaningful involvent in the selection of flags" means third-party flags are private, not government, speech.  Which is actually a pretty fair outcome.  Boston let anybody who applied raise a flag; then when one group applied, Boston balked.  Why?

Because the flag-raising program did not express government speech, Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment. When the government does not speak for itself, it may not exclude private speech based on “religious viewpoint”; doing so “constitutes impermissible viewpoint discrimination.”

And yeah, this sounds terribly clever:

What about my flags from the @satanic_temple_ & @ChurchofSatan ?

— OkieKim 🦈❄️🆗🏳️‍🌈🌪🥀🌹 (@KIM510) May 2, 2022

...but the opinion means a "Satanic flag" could be flown, too, if a group applied for permission to fly it.  This is not an issue of allowing "religious speech."  It's a question of allowing private speech on public grounds.

Frankly, I don't know what the hell a "Christian flag" is, anyway.  I remember seeing some in churches in my youth (I don't think any flags belong in a Christian worship space, but I'm weird that way, too).  Couldn't tell you know what they looked like.  I guess it had a cross on it, but then again the Red Cross logo is actually a red plus sign to me, so....

ADDING:  Of course, most of Twitter is going to go this way:

Moreover this opinion, which I have not read, and which is based on prior opinions I have not read, and on a doctrine with which I have not taken the time to learn, is clearly part of the continuing Republican assault on the rule of law.

— JDMandelHat (@Popehat) May 2, 2022