opening brief of plaintiffs-appellantslc.org/020419bostonbrief.pdfopening brief of...

NO. 18-1898

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

HAROLD SHURTLEFF, and CAMP CONSTITUTION, a public charitable trust,

Plaintiffs-Appellants,

v.

CITY OF BOSTON, and GREGORY T. ROONEY, in his official capacity as

Commissioner of the City of Boston Property Management Division,

Defendants-Appellees.

Appeal from the United States District Court for the District of Massachusetts

Case No. 1:18-cv-11417-DJC

OPENING BRIEF OF PLAINTIFFS-APPELLANTS

Mathew D. Staver

Horatio G. Mihet

Roger K. Gannam

Daniel J. Schmid

LIBERTY COUNSEL

P.O. Box 540774

Orlando, FL 32854

Phone: (407) 875-1776

Facsimile: (407) 875-0770

Email: [email protected]

Case: 18-1898 Document: 00117396540 Page: 1 Date Filed: 02/02/2019 Entry ID: 6229826

i

CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1(a), Appellant Camp Constitution states that

it is a public charitable trust and that it has no parent corporation or public held

corporation that owns 10% or more of its stock.


ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT .......................................................... i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES .................................................................................... vi

STATEMENT IN SUPPORT OF ORAL ARGUMENT .......................................... x

JURISDICTIONAL STATEMENT .......................................................................... 1

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................. 1

STATEMENT OF THE CASE .................................................................................. 2

I. INTRODUCTION ........................................................................................... 2

II. FACTUAL BACKGROUND.......................................................................... 4

A. The City’s Designation of the City Hall Flag Poles as a Public

Forum. ................................................................................................... 4

1. The City’s Policies Designating the City Hall Flag Poles a

Public Forum. .............................................................................. 4

2. The City’s Practices Designating the City Hall Flag Poles a

Public Forum. .............................................................................. 5

B. The City’s Denial of Camp Constitution’s Application to Use the

City Hall Flag Poles Forum. .................................................................. 7

C. The City’s Unwritten Policy of Excluding “Non-Secular” Flags. ...... 10

D. The District Court’s Denial of Preliminary Injunction. ...................... 11

SUMMARY OF ARGUMENT ............................................................................... 12

ARGUMENT ........................................................................................................... 13

I. THE DISTRICT COURT’S ORDER DENYING PRELIMINARY

INJUNCTION SHOULD BE REVERSED BECAUSE PLAINTIFFS

ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR FIRST

AMENDMENT CLAIMS. ............................................................................ 14


iii

A. The District Court Erred in Concluding That Flags Flown by Private

Organizations on the City Hall Flag Poles Constitute Government

Speech.................................................................................................. 14

1. The City, by Explicit Policy and Practice, Intentionally

Created a Designated Public Forum on its City Hall Flag

Poles. ......................................................................................... 14

2. The Government’s Permitting Private Speech in Its

Designated Public Forum Does Not Transform That Speech

into Government Speech. .......................................................... 18

3. Neither Pleasant Grove nor Walker Support a Government

Speech Label for a Private Group’s Temporarily Raising Its

Own Flag. .................................................................................. 20

a. Pleasant Grove’s Permanent Monument Analysis Is

Inapposite to the Private Flags Periodically and

Temporarily Permitted on the City Hall Flag Poles. ...... 20

b. The Government Ownership and Control Elements in

Pleasant Grove and Walker Are Not Present for

Periodically Permitted Private Flags on the City Hall

Flag Poles. ....................................................................... 23

B. The District Court Erred in Its Alternative Holding That the City’s

Discriminatory Exclusion of Camp Constitution’s Speech Satisfies

First Amendment Forum Analysis. ..................................................... 25

1. Strict Scrutiny Applies to the City’s Exclusion of Camp

Constitution’s Speech Because the City Hall Flagpoles Are a

Designated Public Forum, Not a Limited Public Forum. ......... 25

a. A Limited Public Forum is Limited for a Purpose to

Certain Speakers or Certain Subjects. ............................ 25

b. The City Hall Flag Poles Are Open to All Applicants

and Subjects by Policy and Practice, Foreclosing

Classification as Limited Public Forum. ........................ 30


iv

2. The City’s Viewpoint-Based Discrimination Against Camp

Constitution’s Speech is Unconstitutional Under Any Forum

Analysis. .................................................................................... 31

3. The City’s Content-Based Discrimination Against Camp

Constitution’s Speech Cannot Survive Strict Scrutiny. ............ 33

a. It Is the City’s Burden to Demonstrate Its Speech

Restriction Satisfies Strict Scrutiny. ............................... 33

b. The Establishment Clause Does Not Provide Boston a

Compelling Interest to Censor Camp Constitution’s

Speech. ............................................................................ 35

c. The City’s Discriminatory Treatment of Camp

Constitution Is Otherwise Not Narrowly Tailored to

Serve any Compelling Interest. ...................................... 39

4. The City’s Exclusion of Camp Constitution’s Speech is

Unconstitutional Even Under the District Court’s Erroneous

Reasonable and Viewpoint Neutral Standard for Limited

Public Fora. ............................................................................... 40

C. The District Court Erred in Failing to Recognize That City’s Policies

and Practices Impermissibly Discriminate Against and Show

Hostility Towards Camp Constitution’s Religious Speech in

Violation of the Establishment Clause. ............................................... 43

D. The District Court Erred in Ignoring the Presumptively

Unconstitutional Prior Restraint Inherent in the City’s Unwritten

Forum Policy. ...................................................................................... 45

II. THE DISTRICT COURT’S ORDER SHOULD BE REVERSED

BECAUSE PLAINTIFFS ARE SUFFERING IRREPARABLE HARM. ... 48

III. THE DISTRICT COURT’S ORDER SHOULD BE REVERSED

BECAUSE THE BALANCE OF EQUITIES AND PUBLIC INTEREST

FAVOR INJUNCTIVE RELIEF. .................................................................. 49

CONCLUSION ........................................................................................................ 51

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT,

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS .......... 52


v

CERTIFICATE OF SERVICE ................................................................................ 53

ADDENDUM TO OPENING BRIEF OF PLAINTIFFS-APPELLANTS ........... A-i


vi

TABLE OF AUTHORITIES

Cases

Am. Freedom Def. Initiative v. King Cnty., Wash., 136 S. Ct. 1022 (2016) ........... 29

Am. Freedom Def. Initiative v. Mass. Bay Transp. Auth.,

781 F.3d 571 (1st Cir. 2015) ............................................................................... 18

Ams. United for Separation of Church & State v. City of Grand Rapids,

980 F.2d 1538 (6th Cir. 1992) ............................................................................ 37

Ark. Educ. Television Com'n v. Forbes, 523 U.S. 666 (1998) ................................. 15

Ark. Soc. of Freethinkers v. Daniels, No. 4:09cv00925SWW,

2009 WL 4884150, *3 (E.D. Ark. Dec. 16, 2009) ........................................ 19,20

Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett,

564 U.S. 721 (2011) ............................................................................................ 34

Ashcroft v. ACLU, 542 U.S. 656 (2004) ............................................................. 34,35

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) ............................................... 45

Bd. of Educ. of Westside Cmty. Schs. v. Mergens, 496 U.S. 226 (1990) ............ 37,44

Byrne v. Rutledge, 623 F.3d 46 (2d Cir. 2010) ........................................................ 43

Capital Square Rev. & Advisory Bd. v. Pinette,

515 U.S. 753 (1995) ........................................................................ 19,36,37,38,48

Child Evangelism Fellowship of Md., Inc. v. Montgomery Cnty. Pub. Schs.,

373 F.3d 589 (4th Cir. 2004) .............................................................................. 37

Child Evangelism Fellowship of Minn. v. Minn. Special Sch. Dist. No. 1,

690 F.3d 996 (8th Cir. 2012) .............................................................................. 37

Child Evangelism Fellowship of N.J., Inc. v. Stafford Twp. Sch. Dist.,

386 F.3d 514 (3d Cir. 2004) ............................................................................... 37

Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five,

470 F.3d 1062 (4th Cir. 2006) ............................................................................ 37


vii

Church on the Rock v. City of Albuquerque, 84 F.3d 1273 (10th Cir. 1996) ..... 18,37

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) ................. 50

City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) ...................... 47

Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62 (1st Cir. 2009) ......................... 14

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,

473 U.S. 788 (1985) ........................................................................ 15,16,26,27,29

Elrod v. Burns, 427 U.S. 347 (1976) ............................................................. 48,49,51

Epperson v. Arkansas, 393 U.S. 97 (1968) .............................................................. 44

Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123 (1992) ...................... 45,46,47

Freedman v. Maryland, 380 U.S. 51 (1965) ............................................................ 45

Freedom From Religion Found. v. Weber, 628 F. App’x 952 (9th Cir. 2015) ....... 19

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) ........................................ 46,47

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,

546 U.S. 418 (2006) ............................................................................................ 34

Good News Club v. Milford Cent. Sch. Dist.,

533 U.S. 98 (2001) .....................................................................33,35,36,37,38,42

Hobbie v. Unemployment Appeals Com., 480 U.S. 136 (1987) ......................... 43,44

Int’l Soc’y for Krisna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) ................. 16

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.,

508 U.S. 384, 394 (1993) ..................................................................... 31,37,42,43

Leathers v. Medlock, 499 U.S. 439 (1991) ......................................................... 48,49

Lubavitch of Ga. v. Miller, 5 F.3d 1383 (11th Cir. 1993) ....................................... 37

Lynch v. Donnelly, 465 U.S. 668 (1984) ................................................................. 43


viii

Maceira v. Pagan, 649 F.2d 8 (1st Cir. 1981) ......................................................... 49

Machesky v. Bizzell, 414 F.2d 283 (5th Cir. 1969) .................................................. 51

Matal v. Tam, 137 S. Ct. 1744 (2017) ............................................18,19,25,28,29,31

McCreary Cnty. v. ACLU of Ky., 545 U.S. 844 (2005) ........................................... 44

McGuire v. Reilly, 386 F.3d 45 (1st Cir. 2004) ....................................................... 31

Miller v. City of Cincinnati, 622 F.3d 524 (6th Cir. 2010) ...................................... 16

Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018) .......................... 26,31

NAACP v. Button, 371 U.S. 415 (1963) ................................................................... 39

N.Y. Times Co. v. U.S., 403 U.S. 713 (1971) ........................................................... 48

Peck v. Upshur Cnty. Bd. of Educ., 155 F.3d 274 (4th Cir. 1998) .......................... 37

Perry Educ. Ass’n v. Perry Local Educators Ass’n,

460 U.S. 37 (1983) ............................................................................... 15,27,28,29

Pleasant Grove City v. Summum, 555 U.S. 460 (2009) .................20,21,22,23,24,33

Prince v. Jacoby, 303 F.3d 1074 (9th Cir. 2002)..................................................... 37

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ....................................................... 33

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ............................................... 33,34

Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65 (1st Cir. 2004) ........................ 16,18

Robb v. Hungerbeeler, 370 F.3d 735 (8th Cir. 2004) .............................................. 19

Rosenberger v. Rector & Visitors of the Univ. of Va.,

515 U.S. 819 (1995) ........................................................ 19,28,31,36,37,40,41,42

Saia v. People of State of N.Y., 334 U.S. 558 (1948) .............................................. 47

Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203 (1963) ........................ 44


ix

Schneider v. State, 308 U.S. 147 (1939) .................................................................. 48

Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd.,

502 U.S. 105 (1991) ....................................................................................... 48,49

Sindicato Puertorriqueno de Trabajadores v. Fortuno,

699 F.3d 1 (1st Cir. 2012) .................................................................... 14,49,50,51

Sorrell v. IMS Health, 131 S. Ct. 2653 (2011) ........................................................ 31

United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) ........................... 34

United Veterans Memorial & Patriotic Ass’n of the City of New Rochelle v. City

of New Rochelle, 615 F. App’x 693 (2d Cir. 2015) ....................................... 22,23

Waldron v. George Weston Bakeries Inc., 570 F.3d 5 (1st Cir. 2009) ............... 13,14

Walker v. Texas Div., Sons of Confederate Veterans, Inc.,

135 S. Ct. 2239 (2015) .................................................................... 20,22,23,24,25

Wallace v. Jaffree, 472 U.S. 38 (1985) .................................................................... 48

Wandering Dago, Inc. v. Destito, 879 F.3d 20 (2d Cir. 2018) ................................ 19

Watchtower Bible & Tract Soc’y of N.Y. v. Vill. of Stratton,

536 U.S. 150 (2002) ....................................................................................... 45,46

Widmar v. Vincent, 454 U.S. 263 (1981) ................................................................. 37

Statutes

28 U.S.C. § 1292 ........................................................................................................ 1

28 U.S.C. § 1331 ........................................................................................................ 1

28 U.S.C. § 2201 ........................................................................................................ 1

28 U.S.C. § 2202 ........................................................................................................ 1

Constitutional Provisions

U.S. Const. amend. I .........................................................................................passim


x

STATEMENT IN SUPPORT OF ORAL ARGUMENT

Pursuant to Fed. R. App. P. 34(a), Appellants respectfully request that oral

argument be permitted in this appeal because it would assist the Court in

understanding and deciding the weighty constitutional issues presented by the City

of Boston’s discriminatory treatment of Appellants’ constitutionally protected

expression in a designated public forum.


1

JURISDICTIONAL STATEMENT

This Court has jurisdiction over the instant appeal pursuant to 28 U.S.C.

§ 1292(a)(1) because the district court refused to grant Appellants’ requested

preliminary injunction. The district court had jurisdiction over this matter pursuant

to 28 U.S.C. §§ 1331 and 2201–2202.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

(1) Whether the district court erred in holding that the expression of private

organizations through raising their flags on the City Hall Flag Poles, designated by

the City as a public forum, constitutes government speech.

(2) Whether the district court erred in holding that a prohibition against the

religious speech of private organizations in a designated public forum is not

unconstitutional viewpoint discrimination.

(3) Whether the district court erred in holding that a content-based

restriction on the speech of private organizations in a designated public forum need

not satisfy strict scrutiny.

(4) Whether the district court erred in holding that the City would violate

the Establishment Clause by granting access to a private organization’s religious

speech on equal terms with a similarly situated organization’s non-religious speech

in the City’s designated public forum.


2

(5) Whether the district court erred in ignoring the presumptively

unconstitutional prior restraint inherent in the City’s application and permit process

for accessing the City’s designated public forum at the City Hall Flag Poles.

STATEMENT OF THE CASE

“Where possible, the Office of Property and Construction Management

seeks to accommodate all applicants

seeking to take advantage of the City of Boston’s public forums.”1

I. INTRODUCTION

Consistent with its mission, Camp Constitution2 requested access to the City

of Boston’s designated public fora to hold an event for Boston’s citizens to celebrate

and enhance their understanding of the cultural, intellectual, and economic

contributions of Boston’s Christian community to the country, the Commonwealth

of Massachusetts, and the City of Boston, as well as religious tolerance, the Rule of

Law, and the United States Constitution. Camp Constitution believes that these

principles together have given the nation an unprecedented history of growth and

prosperity, and it requested access to the City’s designated public fora in order to

engage in its constitutionally protected expression to motivate, inspire, and activate

this generation of Patriots and the next. As part of its celebration and expression,

1 V. Compl. ¶ 35 & Ex. H, J.A. at JA11–12 & JA46–48 (emphasis added). 2 Appellant Camp Constitution and its principal, Appellant Harold Shurtleff, to

the extent Shurtleff was acting on behalf of Camp Constitution, will be referred to

collectively herein as “Camp Constitution.”


3

Camp Constitution requested access to the City’s designated public fora—City Hall

Plaza for the event itself, and the adjacent City Hall Flag Poles for raising a symbolic

Christian flag over the event. The City denied Camp Constitution that opportunity.

Instead of recognizing that the religious speech of private organizations in a

designated public forum is entitled to robust First Amendment protection, the City

rendered Camp Constitution and its religious speech constitutional orphans. The

City’s only rationale was that the flags of private organizations that the City permits

to be flown on the City Hall Flag Poles constitute government speech, and that

granting equal access to a flag of religious expression would violate the

Establishment Clause. While the district court countenanced these absurd

contentions, this Court must reject the City’s constitutional sleight of hand. Camp

Constitution has suffered, is suffering, and will continue to suffer immediate,

immeasurable, and irreparable harm to its cherished constitutional freedoms until

the City’s unconstitutional policies and actions are enjoined. The district court’s

decision should be reversed.


4

II. FACTUAL BACKGROUND

A. The City’s Designation of the City Hall Flag Poles as a Public

Forum.

1. The City’s Policies Designating the City Hall

Flag Poles a Public Forum.

The City has established written policies, a written application process, and a

consistent practice allowing private expression on unlimited topics at various City-

owned venues. The City’s policies and practices open these venues as designated

public fora for private expression.

The City has made available designated public spaces for citizens to engage

in First Amendment activities upon obtaining a permit, including Faneuil Hall,

Samuel Adams Park, City Hall Plaza, City Hall Lobby, City Hall Flag Poles, and

North Stage. (V. Compl. ¶ 33, JA10.3) The City has established written policies for

use of these public spaces and has posted the policies on its website, City of Boston,

How to Hold an Event Near City Hall, https://www.boston.gov/departments/

property-management/how-hold-event-near-city-hall (last visited January 9, 2019).

(Id. ¶ 34, JA10–11.) On its written application form, identifying the City Hall Flag

Poles and other public venues by name, the City states:

Where possible, the Office of Property and Construction

Management seeks to accommodate all applicants

3 Page references to documents in the Joint Appendix are hereinafter referenced

by Joint Appendix page number alone (e.g., “JA10”).


5

seeking to take advantage of the City of Boston’s public

forums. To maximize efficient use of these forums and

ensure the safety and convenience of the applicants and

the general public, access to these forums must be

regulated.

(Id. ¶ 35, JA11–12 (emphasis added).)

Thus, on its own written application form, the City (1) expressly designates

the City Hall Flag Poles and other named venues as “public forums,” and (2) publicly

announces the City’s explicit intention to make such “public forums” available to

“all applicants.” (Id.)

2. The City’s Practices Designating the City Hall

Flag Poles a Public Forum.

Consistent with its explicit naming of the City Hall Flag Poles within its

designated “public forums” and its explicit intention to make them available to “all

applicants,” the City continually has permitted a host of organizations to raise their

flags on the City Hall Flag Poles for their public events, including ethnic and other

cultural celebrations, the arrival of dignitaries from other countries, the

commemoration of independence or other historic events in other countries, or the

celebration of certain causes such as “gay pride.” (V. Compl. ¶ 37, JA13–14.) The

City has issued permits for flag raisings for the countries of Albania, Brazil,

Ethiopia, Italy, Panama, Peru, Portugal, Puerto Rico, Mexico, as well as the People’s

Republic of China and Cuba, as well as for the flags of the private Chinese


6

Progressive Association, National Juneteenth Observance Foundation, Bunker Hill

Association, and Boston Pride. (Id.)

The Commissioner of the City’s Property Management Department, Appellee

Rooney, who is tasked with overseeing the City’s designated public fora, also

admitted in sworn testimony that the City has opened up the City Hall Flag Poles

forum to a broad swath of private organizations and speech. (Aff. Gregory T. Rooney

(“Rooney Aff.”) ¶ 10, JA63) (providing examples of flags permitted to fly on City

Hall Flag Poles, including “geographical flags, the LGBT rainbow flag, the

transgender rights flag, and the Juneteenth flag recognizing the end of slavery”)

Most – though not all – of these flags did not contain religious symbolism or

imagery.

The City, however, also has granted access to the flag pole forum for flags

containing explicit religious imagery and symbolism. (V. Compl. ¶ 36 & Ex. I,

JA12–13 & JA49–50 (describing announcement on City website for Portuguese-

American festival, including raising flag displaying overt religious symbolism, such

as five blue dots symbolizing “the five wounds of Christ when crucified” and thirty

dots “represent[ing] the coins Judas received for having betrayed Christ”); id. ¶ 41.b

& Ex. K, JA14–15 & JA58 (noting City permitted flying of Bunker Hill Flag

commemorating Revolutionary War Battle of Bunker Hill and Bunker Hill Day,

which flag includes religious imagery of red St. George’s Cross on white canton in


7

blue field); see also id. ¶ 41.a & Ex. J, JA14–15 & JA51–53, and Rooney Aff. ¶ 8,

JA63) (noting regularly displayed City of Boston flag includes Latin inscription

“SICUT PATRIBUS, SIT DEUS NOBIS,” meaning “God be with us as he was with

our fathers”).)

B. The City’s Denial of Camp Constitution’s Application to Use

the City Hall Flag Poles Forum.

In connection with the 2017 observance of Constitution Day and Citizenship

Day, Camp Constitution desired to conduct an event on City Hall Plaza close in time

to September 17, 2017, to commemorate the civic and social contributions of the

Christian community to the City, the Commonwealth of Massachusetts, religious

tolerance, the Rule of Law, and the U.S. Constitution, which event would include

the raising of a symbolic Christian flag on one of the City Hall Flag Poles continually

open to other groups. (V. Compl. ¶ 24, JA7.) On July 28, 2017, Camp Constitution

followed its customary practice for obtaining permits from the City for free speech

activities by contacting City official Lisa Lamberti by telephone, and then by e-mail

at her request, and requesting a permit—

to raise the Christian Flag on City Hall Plaza. Here are a

few potential dates:

Thursday the 7th of September 10:00.--11:00AM

Thursday the 14th of September 10:00 AM-11:00 or

Saturday September 23--10:00 AM-11:00 AM.


8

It will be sponsored by Camp Constitution. We will have

short speeches by some local clergy focusing on Boston’s

history.

(Id. ¶ 24 & Ex. A, JA7 & JA29) Camp Constitution included a picture of the

Christian flag it proposed to raise on the City Hall Flag Poles. (Id.) In appearance,

the Christian flag is essentially a color-reversed image of the Bunker Hill flag

allowed by the City to be raised on Bunker Hill Day. (Compare JA40 with JA58.)

On August 8, 2017, Camp Constitution sent an e-mail to Lamberti to follow

up on its permit request. (V. Compl. ¶ 25 & Ex. B, JA8 & JAJA30–31.) Lamberti

responded the same day, writing, “I am just waiting for the approval from my bosses

I just sent them another e-mail.” (Id.) On August 18, 2017, Camp Constitution sent

another e-mail inquiry checking on the status of its application and followed up with

a phone call. (Id. ¶¶ 26–27 & Ex. B, JA8 & JA30.) Camp Constitution was instructed

to call Lamberti’s boss if it did not hear back from Lamberti in one day, and Camp

Constitution called the number provided by Lamberti. (Id. ¶ 27, JA8.) Camp

Constitution communicated with an individual in the City’s property management

department, who initially advised Camp Constitution that he thought the permit was

already issued, that the person responsible for issuing the permit was on vacation,

and that the official would get back to Camp Constitution following the Labor Day

holiday. (Id.) On September 5, 2017, Lamberti sent an e-mail to Camp Constitution

advising that the permit had been denied. (Id. ¶ 28 & Ex. C, JA8 & JA32.)


9

On September 6, 2017, Camp Constitution requested information as to why

the permit had been denied. (Id.) On September 8, 2017, Camp Constitution received

the following e-mail from Appellee Rooney:

I am writing to you in response to your inquiry as to the

reason for denying your request to raise the “Christian

Flag”. The City of Boston maintains a policy and

practice of respectfully refraining from flying non-

secular flags on the City Hall flagpoles. This policy and

practice is consistent with well-established First

Amendment jurisprudence prohibiting a local government

from “respecting an establishment of religion.” This

policy and practice is also consistent with City’s legal

authority to choose how a limited government resource,

like the City Hall flagpoles, is used.

According to the above policy and practice, the City of

Boston has respectfully denied the request of Camp

Constitution to fly on a City Hall flagpole the

“Christian” flag, as it is identified in the request, which

displays a red Latin cross against a blue square bordered

on three sides by a white field.

The City would be willing to consider a request to fly a

non-religious flag, should your organization elect to offer

one.

(Id. ¶ 29 & Ex. D, JA8–9 & JA33 (emphasis added).)

On or about September 13, 2017, Camp Constitution submitted to the City a

written City Hall and Faneuil Hall Event Application, requesting use of City Hall

Plaza and the City Hall Flag Poles for the event “Camp Constitution Christian Flag

Raising,” and proposing dates of October 19, 2017 or October 26, 2017. (V. Compl.

¶ 30 & Ex. E, JA9–10 & JA34.) Camp Constitution described the event as follows:


10

Celebrate and recognize the contributions Boston’s

Christian community has made to our city’s cultural

diversity, intellectual capital and economic growth. The

Christian flag is an important symbol of our country’s

Judeo-Christian heritage. During the flag raising at the

City Hall Plaza, Boston recognizes our Nation’s heritage

and the civic accomplishments and social contributions of

the Christian community to the Commonwealth of

Massachusetts, religious tolerance, the Rule of Law, and

the U.S. Constitution, which together gave our Nation an

unprecedented history of growth and prosperity. The event

program includes a speech by Rev. Steve Craft, an

instructor at Camp Constitution on the need for racial

reconciliation, a speech by Pastor William Levi, formerly

of the Sudan, on the blessings of religious freedom in the

U.S. and an historical overview of Boston by Hal

Shurtleff, director of Camp Constitution.

(Id.) On September 14, 2017, Camp Constitution’s counsel sent a letter to Boston

Mayor Martin J. Walsh, with copies to other City officials, enclosing the completed

Event Application and requesting that the City approve the application on or before

September 27, 2017. (Id. ¶ 31 & Ex. F, JA10 & JA35–JA41.) The letter further

explained the constitutional problems with the City’s denial of Camp Constitution’s

request. (Id.) The City did not respond to either Camp Constitution’s second permit

request or the letter from Camp Constitution’s counsel. (Id. ¶ 32, JA10.)

C. The City’s Unwritten Policy of Excluding “Non-Secular”

Flags.

The only written policies provided by the City to applicants for permits to use

the City’s designated public fora are the permit criteria on its website and the

additional rules on its printed permit application form. (V. Compl. ¶¶ 33–38 & Exs.


11

G, H, JA10–JA14 & JA42–48.) Despite the City’s email to Camp Constitution

stating that it has a policy of excluding “non-secular flags” (i.e., a “no religious

speech” policy), the City had no published or otherwise written policy containing

such a rule, having only the published policies applicable to all events staged at the

City’s designated public fora. (Id. ¶ 39.) Specifically, there was no written policy

supporting the City’s statement that “the City of Boston maintains a policy and

practice of respectfully refraining from flying non-secular flags on the City Hall

flagpoles,” nor any written policy authorizing or directing the City to offer applicants

an alternative of flying a “non-religious” flag. (Id. ¶¶ 39–40.) Instead, the City

denied Camp Constitution’s application in reliance on an unwritten policy vesting

unbridled discretion in Appellee Rooney to deny private speech not “consistent with

the City’s message, policies, and practices.” (See Rooney Aff. ¶ 17, JA64 (emphasis

added); Mem. & Order Den. Pls.’ Mot. Prelim. Inj. (“Order”) at A-34 (same).)

D. The District Court’s Denial of Preliminary Injunction.

On August 8, 2018, the district court entered an order denying Camp

Constitution’s motion for preliminary injunction. (Order at A-1.) In its decision, the

district court concluded that Camp Constitution did not demonstrate a likelihood of

4 The district court’s Memorandum and Order denying Plaintiffs’ Motion for

Preliminary Injunction (the “Order”) is contained in the Addendum to Opening Brief

of Plaintiffs-Appellants, infra, and is referenced by Addendum page number, such

as “A-3.”


12

success on the merits because the flags of private groups flown on the City Hall Flag

Poles “constitute government speech.” (Id. at A-7.) In the alternative, the district

court concluded that even if the flags raised by private organizations were private

speech, the City’s restriction of religious speech was permissible for a limited public

forum under the First Amendment because it was viewpoint neutral and necessary

for the City to avoid violating the Establishment Clause.5 (Id. at A-12.) The district

court also concluded Plaintiffs were not likely to succeed on the merits of their Equal

Protection claims because the City was justified in treating Camp Constitution’s

application differently from the applications of other private groups. (Id. at A-14 to

A-16.) Camp Constitution timely filed the instant appeal.

SUMMARY OF ARGUMENT

The district court’s holding that the private speech of private organizations

granted access to a government-designated public forum magically transforms into

government speech upon approval of a permit is plainly in error. Mere government

permission for private expression in a public forum does not make the speech

government speech. The district court’s holding that the City’s discriminatory

treatment of religious speech survives First Amendment scrutiny is also in error for

5 The district court misapprehended Appellants’ principal assertion that the City

Hall Flag Poles constitute a designated public forum, leading the court to embark on

a (nonetheless erroneous) “limited public forum” analysis. (See infra, Argument,

Part I.B.)


13

several reasons: (1) the City’s viewpoint-based restrictions on Camp Constitution’s

speech are impermissible in any forum; (2) the City’s policies and actions created a

designated public forum on City Hall Flag Poles, and content-based restrictions on

speech in such a forum are subject to strict scrutiny; (3) granting equal access to

religious speech in a designated public forum (or even in a limited public forum)

does not violate the Establishment Clause; (4) the City’s hostile and discriminatory

policy and actions restricting only religious speech from an otherwise available

public forum violate the Establishment Clause; and (5) the City’s unwritten policy

and actions represent a presumptively unconstitutional prior restraint.

Moreover, the district court’s holding that Camp Constitution could not

demonstrate irreparable harm from being denied equal access to the City’s

designated public forum at City Hall Flag Poles ignores entrenched First

Amendment precedent, that the loss of constitutional rights for even minimal periods

of time constitutes irreparable harm.

Finally, the district court erred in finding that an injunction would harm the

public interest and that the balance of equities favored the City.

ARGUMENT

This court reviews the denial of a preliminary injunction for abuse of

discretion, scrutinizing the district court's findings of fact for clear error and its legal

conclusions de novo. See Waldron v. George Weston Bakeries Inc., 570 F.3d 5, 8


14

(1st Cir. 2009). The familiar four factors on which the propriety of a preliminary

injunction depend are “(i) the likelihood that the movant will succeed on the merits;

(ii) the possibility that, without an injunction, the movant will suffer irreparable

harm; (iii) the balance of relevant hardships as between the parties; and (iv) the effect

of the court's ruling on the public interest.” Coquico, Inc. v. Rodriguez-Miranda, 562

F.3d 62, 66 (1st Cir. 2009). Where the injunction is requested to vindicate First

Amendment Free Speech rights, “the likelihood of success on the merits is the

linchpin of the preliminary injunction analysis.” Sindicato Puertorriqueno de

Trabajadores v. Fortuno, 699 F.3d 1, 10 (1st Cir. 2012). Under this framework, this

Court should reverse the district court’s denial of the preliminary injunction

requested by Camp Constitution.

I. THE DISTRICT COURT’S ORDER DENYING PRELIMINARY

INJUNCTION SHOULD BE REVERSED BECAUSE PLAINTIFFS

ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR FIRST

AMENDMENT CLAIMS.

A. The District Court Erred in Concluding That Flags Flown by

Private Organizations on the City Hall Flag Poles Constitute

Government Speech.

1. The City, by Explicit Policy and Practice,

Intentionally Created a Designated Public

Forum on its City Hall Flag Poles.

Contrary to Supreme Court and First Circuit precedent, the district court

categorized as government speech the public expression of private organizations


15

accessing the City Hall Flag Poles, which the City has designated a public forum.

(Order at A-7.) That decision was plainly in error.6

“[T]he Court [has] identified three types of fora: the traditional public forum,

the public forum created by government designation, and the nonpublic forum.”7

Ark. Educ. Television Com'n v. Forbes, 523 U.S. 666, 677 (1998) (alterations in

original) (internal quotation marks omitted). “Designated public fora . . . are created

by purposeful government action.” Id. The government creates a designated public

forum “by intentionally opening a nontraditional forum for public discourse.”

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985).

To determine whether a designated public forum has been opened, courts look

to the “policy and practice of the government to ascertain whether it intended to

6 The relevant forum for the Court’s forum analysis depends on the access

sought by the speaker. See, e.g., Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,

473 U.S. 788, 801 (1985) (“[I]n defining the forum we have focused on the access

sought by the speaker.”); Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460

U.S. 37, 45–46 (1983) (determining relevant forum by access sought by speaker).

Camp Constitution sought to raise its flag on the City Hall Flag Poles while

conducting an event at City Hall Plaza, as numerous other organizations have done.

(V. Compl. ¶ 24, JA7 (alleging Plaintiffs requested access to City Hall Flag Poles);

id. ¶ 30, JA9–10 (same).) The City denied the requested flag raising on the Flag

Poles. (Id. ¶¶ 28–29, JA8–9.) Thus, the City Hall Flag Poles are the relevant forum

for the Court’s forum analysis, and the Court must examine the City’s intentions,

policies, and practices relating thereto to properly characterize the forum. 7 In Part I.B, infra, Camp Constitution addresses the hybrid “limited public

forum” on which the district court centered its erroneous forum analysis. (Order at

A-10 to A-13.)


16

designate a place not traditionally open to assembly and debate as a public forum”

and have “also examined the nature of the property and its compatibility with

expressive activity to discern the government's intent.” Id. This Court teaches that

determining whether the government intended to create a designated public forum

requires courts to “consider both the explicit expressions about intent and the

policy and practice of the government.” Ridley v. Mass. Bay Transp. Auth., 390

F.3d 65, 76 (1st Cir. 2004) (emphasis added). All considerations evidence the City’s

intentional designation of the City Hall Flag Poles as a public forum.

The City’s policy, embodied in its official rules and application forms,

contains explicit expressions of the City’s intent to designate several City-owned

venues as fora for expression by the public at large. (V. Compl. ¶¶ 33–35 & Exs. G–

H, JA10–12 & JA42–48.) See Int’l Soc’y for Krisna Consciousness, Inc. v. Lee, 505

U.S. 672, 678 (1992) (defining designated public forum as “property that the State

has opened for expressive activity by part or all of the public”); Miller v. City of

Cincinnati, 622 F.3d 524, 534 (6th Cir. 2010) (“The government creates a designated

public forum when it opens a piece of public property to the public at large, treating

as if it were a traditional public forum.”) The City’s written application form and

guidelines, referring by name to the City Hall Flag Poles, explicitly state that the

City “seeks to accommodate all applicants seeking to take advantage of the City

of Boston’s public forums.” (Id. ¶ 35 & Ex. H, JA11–12 & JA46–48 (emphasis


17

added).) The only limitations on the City’s explicit all-comers policy are safety and

financial conditions, such as obtaining the requisite insurance and foregoing

dangerous or illegal activities. (Id. ¶¶ 34–35 & Exs. G–H, JA10–12 & JA42–48.)

The City could not have more explicitly designated the City Hall Flag Poles and

other named venues for expression by the public at large.

Reinforcing the City’s written policies explicitly expressing the City’s intent

to create a designated public forum on the City Hall Flag Poles, the City’s consistent,

actual practice puts the matter beyond doubt. The record demonstrates the City puts

its all-comers policy into practice by permitting a host of organizations, with widely

diverse purposes and viewpoints, to raise their flags on the City Hall Flag Poles for

their public events. (See supra Statement of the Case Part II.A.2; V. Compl. ¶ 36,

JA12–13 (reciting announcement of Portuguese-American festival and flag-raising

on City website, including description of religious symbols on flag); id. ¶ 37

(recounting City’s permitting private organizations to raise their flags on City Hall

Flag Poles celebrating numerous countries, groups, and events); Rooney Aff. ¶ 10,

JA63 (providing, through sworn testimony of Appellee Rooney, examples of flags

permitted to fly on City Hall Flag Poles, including “geographical flags, the LGBT

rainbow flag, the transgender rights flag, and the Juneteenth flag recognizing the end

of slavery”). Such a practice of opening up the City Hall Flag Poles for the public to

engage in wide-ranging expression is conclusive evidence the City intended to create


18

a designated public forum.8 See Church on the Rock v. City of Albuquerque, 84 F.3d

1273, 1278 (10th Cir. 1996) (classifying city-owned senior center as designated

public forum because city permitted expression on “broad range of subjects” by

public “evidenced by the long list of diverse topics that have been presented”).

2. The Government’s Permitting Private Speech in

Its Designated Public Forum Does Not

Transform That Speech into Government

Speech.

The district court’s determination (Order at A-7 to A-10) that a private

organization’s expression on the City Hall Flag Poles is government speech is

foreclosed by Supreme Court precedent. To be sure, “while the government-speech

doctrine is important—indeed, essential—it is a doctrine that is susceptible to

dangerous misuse. If private speech could be passed off as government speech

by simply affixing a government seal of approval, government could silence or

muffle the expression of disfavored viewpoints.” Matal v. Tam, 137 S. Ct. 1744,

8 Although Boston is “free to decide in good faith to close the forum at any

time,” Ridley, 390 F.3d at 77, there is nothing in the record before the Court

indicating the City has done so. Appellee Rooney’s suddenly saying the City Hall

Flag Poles are not a public forum in response to Camp Constitution’s application is

legally insufficient given the City’s unequivocal practice. See Am. Freedom Def.

Initiative v. Mass. Bay Transp. Auth., 781 F.3d 571, 580 (1st Cir. 2015) (“[A]

governmental actor's stated intent cannot determine the nature of the forum in the

face of countervailing actions by that actor.”); Ridley, 390 F.3d at 77 (“[A] statement

of intent contradicted by consistent actual policy and practice would not be enough

to support the [government’s] argument.”).


19

1758 (2017) (emphasis added); see also, e.g., Rosenberger v. Rector & Visitors of

the Univ. of Va., 515 U.S. 819 (1995) (distinguishing speech of private student

organization from government speech despite private organization’s receiving

government fees and access to government-created public forum for private

expression); Capital Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753 (1995)

(distinguishing speech of private organization from government speech although

government permitted group to access government-created forum for expression).

Courts across the country likewise have recognized the error of categorizing

the private speech of private organizations as government speech merely because

the government provides a forum or grants a permit. See, e.g., Wandering Dago, Inc.

v. Destito, 879 F.3d 20, 34 (2d Cir. 2018) (“[S]peech that is otherwise private does

not become speech of the government merely because the government provides

a forum for the speech or in some ways allows or facilitates it.” (emphasis

added)); Freedom From Religion Found. v. Weber, 628 F. App’x 952, 955 (9th Cir.

2015) (Smith, J., concurring) (“[T]he allowance of private speech on public property

does not necessarily turn the private speech into government speech”); Robb v.

Hungerbeeler, 370 F.3d 735, 744–745 (8th Cir. 2004) (holding adopt-a-highway

signs displaying applicant’s name not government speech though created and placed

by state at applicant’s request); Ark. Soc. of Freethinkers v. Daniels, No.

4:09cv00925SWW, 2009 WL 4884150, *3 (E.D. Ark. Dec. 16, 2009) (holding


20

“temporary display that is owned, possessed, maintained, and installed by a private

group” to be private speech although displayed on public property by permit).

Put simply, the government’s mere granting of a permit for a private group to

speak in a government-designated public forum does not make the permitted speech

government speech. Acceptance of the district court’s contrary conclusion would

radically transform the Supreme Court’s forum doctrine.

3. Neither Pleasant Grove nor Walker Support a

Government Speech Label for a Private Group’s

Temporarily Raising Its Own Flag.

a. Pleasant Grove’s Permanent

Monument Analysis Is Inapposite to

the Private Flags Periodically and

Temporarily Permitted on the City

Hall Flag Poles.

In reaching the erroneous conclusion that private expression on the City Hall

Flag Poles is government speech, the district court relied primarily upon Pleasant

Grove City v. Summum, 555 U.S. 460 (2009), and Walker v. Texas Div., Sons of

Confederate Veterans, Inc., 135 S. Ct. 2239 (2015). (Order at A-9.) That reliance

was misplaced. Neither Pleasant Grove nor Walker supports a holding that the ad

hoc permitted speech of a private organization in a designated public forum is

government speech.

The district court’s slapdash treatment of Pleasant Grove ignored the actual

question presented in the case, which appears in the opinion’s first sentence: “This


21

case presents the question whether the Free Speech Clause of the First Amendment

entitles a private group to insist that a municipality permit it to place a permanent

monument in a city park in which other donated monuments were previously

erected.” 555 U.S. at 464 (emphasis added). The Supreme Court rejected the First

Amendment claim because, it said, “the placement of a permanent monument in a

public park is best viewed as a form of government speech.” Id. (emphasis added).

This was so because “[i]t is certainly not common for property owners to open up

their property for the installation of permanent monuments that convey a message

with which they do not wish to be associated.” Id. at 471 (emphasis added). Thus,

the permanent nature of the proposed monument was critical to the Court’s

rejection of the argument that the City had created a forum for private expression by

accepting placement of a limited number of other permanent monuments. Id. at 478–

79.

The Pleasant Grove Court rejected the contention that permanent monuments

are akin to the delivery of speeches or a march or parade. Id. at 473. The Court

reasoned that while, as a public forum, “a park can accommodate many speakers

and, over time, many parades and demonstrations,” it “can accommodate only a

limited number of permanent monuments.” Id. at 478–79. The Court reasoned

further:

Speakers, no matter how long-winded, eventually come to

the end of their remarks; persons distributing leaflets and


22

carrying signs at some point tire and go home;

monuments, however, endure. They monopolize the use of

the land on which they stand and interfere permanently

with other uses of public space. A public park, over the

years, can provide a soapbox for a very large number of

orators—often, for all who want to speak—but it is hard

to imagine how a public park could be opened up for the

installation of permanent monuments by every person or

group wishing to engage in that form of expression.

Id. at 479 (emphasis added).

In Walker the Court confirmed the importance of the permanence of the

monuments at issue in Pleasant Grove. The Walker Court stated: “[I]n [Pleasant

Grove], we emphasized that monuments were ‘permanent’ and we observed that

‘public parks can accommodate only a limited number of permanent

monuments.’” 135 S. Ct. at 2249 (emphasis added). “We believed that the speech

at issue was government speech . . . in part because we found it ‘hard to imagine

how a public park could be opened up for the installation of permanent monuments

by every person or group . . . .’” Id. (emphasis added). This central issue of

permanence was wholly ignored by the court below.

The district court’s reliance on United Veterans Memorial & Patriotic Ass’n

of the City of New Rochelle v. City of New Rochelle, 615 F. App’x 693 (2d Cir.

2015), is likewise misplaced. There, the flags at issue were more akin to permanent

monuments because “United Veterans’ flags are displayed for long periods of time

(until they become tattered) and then promptly replaced [such that] their presence


23

at the Armory is nearly as constant as that of the park monuments in [Pleasant

Grove].” United Veterans, 72 F. Supp. 3d at 475. Thus, as was true in Pleasant

Grove, the permanence of flags translates them into government speech, not their

mere placement on government property.

On the Boston City Hall Flag Poles, there is no such permanence for the flags

permitted to be raised by private groups under the City’s express policies and

consistent actual practice. As admitted by Appellee Rooney, private organizations

“[a]t times” have been permitted to raise “substitute flags” on the City Hall Flag

Poles upon request, “[o]ften . . . in connection with a proposed event.” (Rooney

Aff. ¶¶ 8–11, JA63 (emphasis added).) A “substitute” flag raised in connection with

a finite, permitted public event is necessarily temporary. Pleasant Grove’s concern

that the public forum doctrine cannot be applied to permanent displays is not

implicated by a temporary raising of a private flag.

b. The Government Ownership and

Control Elements in Pleasant Grove

and Walker Are Not Present for

Periodically Permitted Private Flags

on the City Hall Flag Poles.

The district court also heavily relied on Pleasant Grove and Walker for its

notion that the City “effectively controlled” the private flags permitted on the City

Hall Flag Poles. (Order at A-9.) But that reliance, too, is misplaced.


24

In Pleasant Grove, the government “took ownership of the monument,” “[a]ll

rights previously possessed by the monument’s donor [were] relinquished,” and the

government maintained all the permanent monuments placed in the park. 555 U.S.

at 473. The be sure, a private group’s raising their flag for a day to complement their

one-off event at City Hall is very much like the speech, march, or parade that the

Pleasant Grove Court said government speech permanent monuments were not like.

555 U.S. at 473.

In Walker, the government exercised all aspects of ownership over the

specialty license plates at issue. 135 S. Ct. at 2244. Texas prepared the designs of

the specialty plates, id., owned the designs on all specialty plates, id. at 2248, and

was responsible for manufacturing and distributing the plates. Id. Texas actively

exercised its control over its license plates by rejecting at least a dozen proposed

specialty designs. Id. at 2249. In addition, Texas dictated the manner in which its

drivers must dispose of the plates, requiring that the plates be returned to the state.

Id. Moreover, all Texas license plates, which are required for all vehicles, are

“primarily used as a form of government ID,” and bear the state’s name. Id. at 2251.

Furthermore,

The flags belonging to and temporarily raised by private organizations on the

City Hall Flag Poles bear no resemblance to the vehicle license plates designed,

manufactured, distributed, and owned by Texas. Boston does not require that private


25

organizations requesting to raise a flag surrender ownership and control of the flag

to the City or relinquish all rights to the flag design. The City neither designs,

manufactures, nor puts its name on the flag. And there is no record before the Court

of any actual rejection for content of a proposed flag raising under the City’s express

“all applicants” policy, except for the novel denial of Camp Constitution’s flag

raising. Thus, none of the Pleasant Grove and Walker marks of “effective control”

indicating government speech are present in the policies or practices governing

Boston’s designated public forum at its City Hall Flag Poles.

The Supreme Court has said Walker “marks the outer bounds of the

government speech doctrine.” Matal, 137 S. Ct. at 1760 (emphasis added). This

Court should restore the government speech boundary breached by the district

court’s unguided excursion.

B. The District Court Erred in Its Alternative Holding That the

City’s Discriminatory Exclusion of Camp Constitution’s

Speech Satisfies First Amendment Forum Analysis.

1. Strict Scrutiny Applies to the City’s Exclusion of

Camp Constitution’s Speech Because the City

Hall Flagpoles Are a Designated Public Forum,

Not a Limited Public Forum.

a. A Limited Public Forum is Limited

for a Purpose to Certain Speakers or

Certain Subjects.

The district court committed further error in its alternative holding that the

City’s denial of Camp Constitution’s flag raising, even if private speech, was


26

constitutional under the seemingly less exacting First Amendment analysis for a

limited public forum. (Order at A-10 to A-13.) The court erred in applying this

analysis to the City’s speech restriction because, as shown in Argument Part I.A.1,

supra, the City Hall Flag Poles are a designated public forum.9 Under the proper

designated public forum analysis, “restrictions based on content must satisfy strict

scrutiny, and those based on viewpoint are prohibited.” Minnesota Voters Alliance

v. Mansky, 138 S. Ct. 1876, 1885 (2018); Cornelius, 473 U.S. at 800 (same).

The court below not only improperly chose the limited public forum analysis,

but also banished the designated public forum classification from its forum analysis

altogether. According to the district court, the “[t]hree types of fora under First

9 The district court was less than half right in stating “Plaintiffs assert that the

City has designated the flagpole as a limited public forum . . . .” (Order at A-11.)

While it is true that Camp Constitution used the hybrid term “limited public forum”

passingly to refer to the City Hall Flag Poles four times in its Memorandum of Law

in Support of Plaintiffs’ Motion for Preliminary Injunction (Dist. Ct. Doc. 8 at 2, 6,

8, 14), Camp Constitution explicitly asserted the “designated public forum”

classification in every section (id. at 1, 2, 7, 10, 13, 18), including in the very

introduction of Camp Constitution’s claims (id. at 1 (“Defendants have violated

Plaintiffs’ speech . . . rights . . . by denying Plaintiffs the right to access the City’s

designated public fora . . . .”). Moreover, Camp Constitution uses the term

“designated public forum” exclusively to refer to the Flag Poles in the Verified

Complaint (V. Compl. ¶¶ 1, 2, 19, 33, 38, 39, 43, 44, 46, 49–51, 68, 83–85, 102 &

Prayer for Relief A(1), (3), B(1), (3), C(2)(d), JA2, JA5, JA10, JA14–17, JA18–26),

and in Plaintiffs’ Motion for Preliminary Injunction (Pls.’ Mot. Prelim. Inj. at JA60).

Furthermore, at the preliminary injunction hearing, Camp Constitution argued that

the City failed both the designated and the limited public forum tests. (Tr. at 5:5–13,

6:24–7:18, 18:6–19:3, JA84–86, JA97–98.) Thus, the district court’s perseveration

on the “limited public forum” classification is not justified.


27

Amendment jurisprudence,” are the traditional public forum, the nonpublic forum,

and, in between, the limited public forum. (Order at A-10 to A-11.) This calculus at

best forgets, and at worst avoids, the designated public forum classification, despite

its prominence in Camp Constitution’s papers (see supra note 9) and the Supreme

Court’s seminal Perry Educ. Ass’n decision. See, e.g., Cornelius, 473 U.S. at 802

(“[In Perry Educ. Ass’n] the Court identified three types of fora: the traditional

public forum, the public forum created by government designation, and the

nonpublic forum.” (emphasis added)).

The Perry Educ. Ass’n Court not only defined the designated public forum as

“public property which the state has opened for use by the public as a place for

expressive activity,” 460 U.S. at 45 (emphasis added), but also instructed that

designated public fora are “bound by the same standards as apply in a traditional

public forum,” namely strict scrutiny for content-based restrictions. Id. at 46. But the

Court also described a sub-classification within the designated public forum: “A

public forum may be created for a limited purpose such as use by certain groups .

. . or for the discussion of certain subjects.” 460 U.S. at 46 n.7 (emphasis added)

(citations omitted). The Court did not, however, relax the standards applicable to

regulation of speech in such a “limited purpose” public forum.

Then, perhaps confusingly, the Perry Educ. Ass’n Court used similar “limited

purpose” language in explaining the kinds of permissible speech restrictions in a


28

nonpublic forum: “In addition to time, place, and manner regulations, the state may

reserve the [nonpublic] forum for its intended purposes, communicative or

otherwise, as long as the regulation on speech is reasonable and not an effort to

suppress expression merely because public officials oppose the speaker's view.” Id.

at 46. These principles of permissible speech regulation in limited purpose,

nonpublic fora have been developed further into a “limited forum” analysis:

The necessities of confining a forum to the limited and

legitimate purposes for which it was created may justify

the State in reserving it for certain groups or for the

discussion of certain topics. Once it has opened a limited

forum, however, the State must respect the lawful

boundaries it has itself set. The State may not exclude

speech where its distinction is not reasonable in light of

the purpose served by the forum, nor may it discriminate

against speech on the basis of its viewpoint.

Rosenberger, 515 U.S. at 829 (emphasis added) (citations and internal quotation

marks omitted). Subsequent Courts have applied this “limited forum” analysis to a

hybrid classification of “limited public forum,” apparently combining some aspects

of the Perry Educ. Ass’n “limited purpose” public forum and the similarly limited in

purpose nonpublic forum:

Potentially more analogous are cases in which a unit of

government creates a limited public forum for private

speech. When government creates such a forum, in either

a literal or “metaphysical” sense, some content- and

speaker-based restrictions may be allowed. However, even

in such cases, what we have termed “viewpoint

discrimination” is forbidden.


29

Matal, 137 S. Ct. at 1763 (emphasis added) (citations omitted); see also Cornelius,

473 U.S. at 802 (collapsing Perry Educ. Ass’n sub-classification of “limited

purpose” public forum into description of designated public forum: “a public forum

may be created by government designation of a place or channel of communication

for use by the public at large for speech or assembly, for use by certain speakers,

or for the discussion of certain subjects.” (emphasis added))). Thus, the consistent

characteristic of the “limited purpose” public forum or “limited public forum” is a

purposeful limitation of expression to certain speakers or certain subjects.

The general upshot of this progression of “limited” public and nonpublic

forum classifications is that “[d]istinguishing between designated and limited public

forums has proved difficult.” Am. Freedom Def. Initiative v. King Cnty., Wash., 136

S. Ct. 1022 (2016) (Thomas, J., dissenting from denial of cert.). Ultimately,

however, it need not be difficult in the instant case because the City’s viewpoint

discrimination against Camp Constitution is prohibited no matter what classification

is used (see infra Part I.B.2), the only classification that fits the City Hall Flag Poles

is designated public forum, ensuring that strict scrutiny applies (see supra,

Argument, Part I.A; infra Part I.B.1.b), and the City’s exclusion of Camp

Constitution’s speech is unconstitutional under the district court’s limited forum

analysis in any event (see infra Part I.B.4).


30

b. The City Hall Flag Poles Are Open

to All Applicants and Subjects by

Policy and Practice, Foreclosing

Classification as Limited Public

Forum.

The written policies and consistent practice of the City forecloses

classification of the City Hall Flag Poles as a limited public forum. The policies

expressly invite “all applicants” to use “Boston’s public forums” without reference

to any limitation of speakers or subjects.10 (V. Compl. ¶ 35, JA11–12.) The City’s

actual and consistent practice likewise shows no limitation of speakers or subjects.

(See supra Statement of the Case Part II.A.2.) And there is no evidence in the City’s

written policies, the Rooney Affidavit, or the City’s practices of any purpose for

designating the Flag Poles a public forum other than for “all applicants’” expression,

and certainly no purpose to be served by censoring religious expression, especially

given Appellee Rooney’s admission that “[r]eligious events . . . have regularly

occurred” at the City’s public forums covered by the written policies. (Rooney Aff.

¶ 19, JA64.) Finally, the Flag Pole venue’s inherent practical limitation of medium—

flags— impose no inherent limitation of speaker or subject matter translating the

designated public forum into a limited public forum. Thus, the Flag Poles are equal

10 Apart from fiscal and safety conditions, the only qualifier to the City’s all-

comers invitation, that “all applicants” will be accommodated “[w]here possible,”

implies only logistical limitations, and does not even suggest any subject matter or

speaker limitation.


31

partners with Boston’s other “public forums” open to “all applicants” according to

Boston’s written policies and actual, consistent practice.

2. The City’s Viewpoint-Based Discrimination

Against Camp Constitution’s Speech is

Unconstitutional Under Any Forum Analysis.

Viewpoint-based restrictions on speech are unconstitutional whether in a

designated or limited public forum. See Minnesota Voters Alliance 138 S. Ct. at 1885

(designated public forum); Matal, 137 S. Ct. at 1763 (limited public forum). Indeed,

a viewpoint-based restriction on private speech has never been upheld by the

Supreme Court or any court. Thus, a finding of viewpoint discrimination is

dispositive. See Sorrell v. IMS Health, 131 S. Ct. 2653, 2667 (2011). “It is axiomatic

that the government may not regulate speech based on its substantive content or the

message it conveys.” Rosenberger, 515 U.S. at 828. “When the government targets

not subject matter, but particular views taken by speakers on a subject, the violation

of the First Amendment is all the more blatant.” Id. at 829. In fact, viewpoint-based

regulations are always unconstitutional. See, e.g., Lamb’s Chapel v. Ctr. Moriches

Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (“The principle that has emerged

from our cases ‘is that the First Amendment forbids the government to regulate

speech in ways that favor some viewpoints or ideas at the expense of others.’”);

McGuire v. Reilly, 386 F.3d 45, 62 (1st Cir. 2004) (same).


32

The City plainly has discriminated against Camp Constitution for its religious

viewpoint. The supposed, unwritten policy, first communicated by the City after

denying Camp Constitution’s application, facially discriminates against “non-

secular”—i.e., “Christian” or religious—flags. (V. Compl. ¶ 29, JA8–9; Rooney Aff.

¶¶ 21–22, JA64–65.) As applied to Camp Constitution, its viewpoint discrimination

comes into sharp focus. The policy allows the Bunker Hill Association to raise a red

Christian cross over its event commemorating the Battle of Bunker Hill’s place in

Boston’s history (V. Compl. ¶ 41.b, JA13–14), and allows the raising of a

Portuguese flag symbolizing Jesus’ betrayal and death over an event celebrating the

“Portuguese community’s importance” to Massachusetts and “pay[ing] solemn

homage to Portugal and the Portuguese emigrant community” (id. ¶ 36 & Ex. I,

JA12–13 & JA49–50), but forbids Camp Constitution to raise a red Christian cross

over its event celebrating the importance of the Christian community to Boston and

Massachusetts, featuring “speeches on Boston’s history” and “the need for racial

reconciliation.” The policy thus disfavors Camp Constitution’s viewpoint on what

and whose contributions to Boston’s history and community are worth celebrating,


33

while allowing others to express their viewpoints on the same subject. This

viewpoint discrimination is unconstitutional under any forum analysis.11

3. The City’s Content-Based Discrimination

Against Camp Constitution’s Speech Cannot

Survive Strict Scrutiny.

a. It Is the City’s Burden to

Demonstrate Its Speech Restriction

Satisfies Strict Scrutiny.

As shown, Boston excluded Camp Constitution’s private speech from the

City’s designated public forum because of the flag’s religious content. (See supra,

Statement of the Case, Part II.B.) Thus, the district court erred in holding that strict

scrutiny does not apply. (Order at A-11 & n.4.) To the contrary, Boston’s

exclusionary policy must satisfy the same strict scrutiny applicable to a traditional

public forum. See Pleasant Grove, 555 U.S. at 479. “Content-based laws—those that

target speech on its communicative content—are presumptively unconstitutional and

may be justified only if the government proves that they are narrowly tailored to

serve compelling government interests.” Reed v. Town of Gilbert, 135 S. Ct. 2218,

2226 (2015); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992) (same).

This firm rule applies regardless of Boston’s alleged purpose in enacting the policy.

11 Though Boston has no legitimate Establishment Clause concern with Camp

Constitution’s flag (see infra Part I.B.3), no case has held that such a concern would

justify viewpoint discrimination. See Good News Club v. Milford Cent. Sch. Dist.,

533 U.S. 98, 112–13 (2001).


34

Reed, 135 S. Ct. at 2227. “A law that is content based on its face is subject to strict

scrutiny regardless of the government’s benign motive, content-neutral justification,

or lack of animus toward the ideas contained in the regulated speech.” Id. at 2228.

“In other words, an innocuous justification cannot transform a facially content-based

law into one that is content neutral.” Id.

Binding Supreme Court precedent holds that the City bears the burden of

proof on strict scrutiny. See, e.g., United States v. Playboy Entm’t Grp., Inc., 529

U.S. 803, 816 (2000) (“When the Government restricts speech, the Government

bears the burden of proving the constitutionality of its actions.”); id. at 2540 (“To

meet the requirement of narrow tailoring, the government must demonstrate that

alternative measures that burden substantially less speech would fail to achieve the

government’s interests, not simply that the chosen route is easier” (emphasis

added)); Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734

(2011) (“Laws that burden political speech are accordingly subject to strict scrutiny,

which requires the Government to prove that the restriction furthers a compelling

state interest and is narrowly tailored to achieve that interest” (emphasis added)

(citations omitted)). The City’s burden is the same on a motion for preliminary

injunction because “the burdens at the preliminary injunction stage track the

burdens at trial.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546

U.S. 418, 429 (2006) (emphasis added); see also Ashcroft v. ACLU, 542 U.S. 656,


35

665 (2004) (“When plaintiffs challenge a content-based restriction, the burden is

on the government to prove that the proposed alternatives will not be as effective

as the challenged statute.” (emphasis added)). The City cannot meet its burden.

b. The Establishment Clause Does Not

Provide Boston a Compelling

Interest to Censor Camp

Constitution’s Speech.

The City belatedly invoked the Establishment Clause to justify denying Camp

Constitution’s application. (V. Compl. ¶ 29, JA8–9.) The district court approved,

concluding that allowing equal access to Camp Constitution’s flag “may well violate

the Establishment Clause.” (Order at A-12 to A-14.) The district court’s conclusion

is in error because allowing Camp Constitution’s religious speech in “Boston’s

public forums” on the same terms as “all applicants” cannot violate the

Establishment Clause.

The Supreme Court leaves open the possibility “that a state interest in

avoiding an Establishment Clause violation ‘may be characterized as compelling,’

and therefore may justify content-based discrimination.” Good News Club v. Milford

Cent. Sch. Dist., 533 U.S. 98, 112 (2001) (emphasis added). Merely wanting not to

violate the Establishment Clause, however, is not enough. There is no compelling

interest justifying a content-based restriction if allowing the excluded speech would

not violate the Establishment Clause. See id. (“We need not, however, confront the


36

issue in this case, because we conclude that the [government] has no valid

Establishment Clause interest.”).

The Establishment Clause states that “Congress shall make no law respecting

an establishment of religion.” U.S. Const. amend. I. “By its terms that Clause applies

only to the words and acts of government. It was never meant, and has never been

read by [the Supreme] Court, to serve as an impediment to purely private religious

speech connected to the State only through its occurrence in a public forum.” Pinette,

515 U.S. at 767.

As the Supreme Court teaches,

a significant factor in upholding governmental programs

in the face of an Establishment Clause attack is their

neutrality towards religion. . . . [T]he guarantee of

neutrality is respected, not offended, when the

government, following neutral criteria and evenhanded

policies, extends benefits to recipients whose ideologies

and viewpoints, including religious ones, are broad and

diverse. . . . More than once we have rejected the position

that the Establishment Clause even justifies, much less

requires, a refusal to extend free speech rights to religious

speakers who participate in broad-reaching governmental

programs neutral in design.

Rosenberger, 515 U.S. at 839 (emphasis added).

Put simply, “[r]eligious expression cannot violate the Establishment

Clause where it (1) is purely private and (2) occurs in a traditional or designated

public forum, publicly announced and open to all on equal terms.” Pinette, 515 U.S.

at 770 (emphasis added). Camp Constitution’s purely private speech, if allowed in


37

the designated public forum of the City Hall Flagpoles, which is open to “all

applicants” according to the City’s written policies and consistent practice, “cannot

violate the Establishment Clause.”12

The district court employed a version of the Supreme Court’s “endorsement

test” in concluding that allowing Camp Constitution to raise its flag “may well

violate the Establishment Clause.” (Order at A-13 to A-14.) But the district court

ignored the critical consideration that “the endorsement test necessarily focuses upon

12 The Supreme Court’s mandate that granting equal access to private religious

speech in a forum otherwise available for private speech cannot violate the

Establishment Clause is unblemished. See, e.g., Good News Club, 533 U.S. at 114

(holding private religious organization’s equal access to public school forum not

Establishment Clause violation); Rosenberger, 515 U.S. at 842 (holding religious

student organization’s equal access to public forum not Establishment Clause

violation); Lamb’s Chapel, 508 U.S. at 395-96 (holding religious organization’s

equal access to public school forum not Establishment Clause violation); Widmar v.

Vincent, 454 U.S. 263, 275 (1981) (holding religious student group’s equal access at

public university not Establishment Clause violation); Bd. of Educ. of Westside

Cmty. Schs. v. Mergens, 496 U.S. 226 (1990) (holding not Establishment Clause

violation to permit equal treatment of religious speech and non-religious speech in

otherwise available forum); Pinette, 515 U.S. at 764. So, too, is precedent throughout

the circuit courts. See, e.g., Child Evangelism Fellowship of N.J., Inc. v. Stafford

Twp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004); Peck v. Upshur Cnty. Bd. of Educ.,

155 F.3d 274 (4th Cir. 1998); Child Evangelism Fellowship of Md., Inc. v.

Montgomery Cnty. Pub. Schs., 373 F.3d 589 (4th Cir. 2004); Child Evangelism

Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062 (4th Cir. 2006); Ams.

United for Separation of Church & State v. City of Grand Rapids, 980 F.2d 1538

(6th Cir. 1992); Child Evangelism Fellowship of Minn. v. Minn. Special Sch. Dist.

No. 1, 690 F.3d 996 (8th Cir. 2012); Prince v. Jacoby, 303 F.3d 1074 (9th Cir. 2002);

Church on the Rock v. City of Albuquerque, 84 F.3d 1273 (10th Cir. 1996);

Lubavitch of Ga. v. Miller, 5 F.3d 1383 (11th Cir. 1993).


38

the perception of a reasonable, informed observer.” Pinette, 515 U.S. at 772–73

(O’Connor, J., concurring in part and concurring in the judgment). “[T]he reasonable

observer in the endorsement inquiry must be deemed aware of the history and

context of the community and the forum in which the religious display occurs.” Id.

at 779–780; cf Good News Club, 533 U.S. at 119 (endorsing J. O’Connor’s

endorsement test). No reasonable observer, informed of the City’s written policies

inviting “all applicants” to its “public forums,” and the City’s actual and consistent

practice of allowing a broad spectrum of groups to raise their flags on the City Hall

Flag Poles on a temporary event basis, would conclude that the City endorsed

Christianity or religion by granting Camp Constitution equal access.

Indeed, the Supreme Court would “find it peculiar to say that government

‘promotes’ or ‘favors’ a religious display by giving it the same access to a public

forum that all other displays enjoy. And, as a matter of Establishment Clause

jurisprudence, [the Court has] consistently held that it is no violation for

government to enact neutral policies that happen to benefit religion.” Pinette,

515 U.S. at 763–64 (emphasis added).

The Establishment Clause provides no justification for suppressing the

religious content of Camp Constitution’s speech in Boston’s “public forums”


39

otherwise open to “all applicants.” The district court’s contrary conclusion must be

reversed.13

c. The City’s Discriminatory

Treatment of Camp Constitution Is

Otherwise Not Narrowly Tailored to

Serve any Compelling Interest.

The Establishment Clause provides no compelling interest to justify the city’s

censoring Camp Constitution’s religious speech, and no other interest has been

identified. This absence of a compelling (or any) interest is the end of the strict

scrutiny road for Boston, for no interest means nothing to which a speech restriction

can be narrowly tailored. See NAACP v. Button, 371 U.S. 415, 433 (1963) (“Because

First Amendment freedoms need breathing space to survive, government may

regulate in the area only with narrow specificity.”). Suffice it to say, however, that a

total prohibition of religious speech in Boston’s “public forums” open to “all

applicants” could never be sufficiently narrow.

13 To be sure, the City’s policy is so prohibitively hostile to religious speech that

it violates the Establishment Clause. (See infra Part I.C.)


40

4. The City’s Exclusion of Camp Constitution’s

Speech is Unconstitutional Even Under the

District Court’s Erroneous Reasonable and

Viewpoint Neutral Standard for Limited Public

Fora.

In its alternative holding, the district court supposed that the City Hall Flag

Poles are a limited public forum, in which the City need only show that its religious

speech exclusion policy is viewpoint neutral and reasonable in light of the purposes

served by the forum. (Order at A-11.) While the district court’s articulation of the

standard for a limited public forum is correct, so far as it goes, the court’s conclusion

is still erroneous, for two reasons: (1) as shown above, the Flag Poles are a

designated public forum, subject to strict scrutiny (see supra, Argument, Part I.B.1),

and (2) the City’s speech restrictions fail the limited public forum analysis in any

event.

The full rigor of the limited public forum standard provides:

Once it has opened a limited forum, however, the State

must respect the lawful boundaries it has itself set. The

State may not exclude speech where its distinction is not

reasonable in light of the purpose served by the forum, nor

may it discriminate against speech on the basis of its

viewpoint.

Rosenberger, 515 U.S. at 829 (emphasis added) (citations and internal quotation

marks omitted). The City’s exclusion of Camp Constitution’s speech fails this test

because, as shown above, the City discriminated against Camp Constitution’s

viewpoint. (See supra, Argument, Part I.B.2.) Even overlooking this dispositive


41

failure, however, the City’s exclusion fails the test because it was not reasonable in

light of any purpose served by the City’s all-comers “public forums,” and the City

has not respected its purported no-religion boundaries.

No purpose for the City’s designation of its public fora, including the City

Hall Flag Poles, appears in the City’s written policies, other than for “events” for

“all applicants.” (V. Compl. ¶¶ 34–35, JA10–12.) No limitations of purpose are

expressed. (Id.) The City’s exclusion of Camp Constitution’s religious speech from

the City Hall Flag Poles is not reasonable in light of the unlimited “events” for “all

applicants” purpose of the forum. See Rosenberger, 515 U.S. at 829.

Moreover, the City has not respected its own supposed boundaries. See id. As

shown above, the City allows other organizations to raise flags displaying explicit

religious content. (See supra, Statement of the Case, Part II.A.2.) A “no-religious

flag” event policy that allows some organizations to raise flags containing explicit

Christian symbols for their events (and extol those symbols on a City website (V.

Compl. ¶ 36 & Ex. I, JA12–13 & JA49–50)), but excludes other organizations from

doing the same, cannot satisfy any test of reasonableness.

The unreasonableness of the putative “no religious flag” event policy is

exposed not only by consideration of the explicitly religious private flags that are

continually allowed to be flown on the City Hall Flag Poles, but also by

consideration of the flag that is temporarily replaced by the permitted private flags:


42

the City of Boston Flag containing the Latin motto “SICUT PATRIBUS, SIT DEUS

NOBIS,” meaning “God be with us as he was with our fathers.” (V. Compl. ¶ 41.a

& Ex. J, JA14–15 & JA51–53, Rooney Aff. ¶ 8, JA63.) Such an express appeal to

God on the City’s own flag renders absurd the City’s sudden assertion of a “no

religious flag” policy in denying Camp Constitution’s permit.

The City cannot save its policy by claiming that it only excludes the “subject

matter” of religion, as the district court erroneously held. (Order at A-12.) First, the

City has revealed no purpose to be served by a blanket exclusion of religious subject

matter, without which such an exclusion cannot be deemed reasonable. See

Rosenberger, 515 U.S. at 829. As shown above, a mere desire not to violate the

Establishment Clause is not sufficient to prohibit equal access to religious speech in

a public forum. (See supra, Argument, Part I.B.3.) Second, religion itself is a

viewpoint on other subjects, and the exclusion of all religious speech is viewpoint

discriminatory. See, e.g., Good News Club, 533 U.S. at 112 & n.4 (“Religion is the

viewpoint from which ideas are conveyed.” (emphasis added)); id. at 112 n.4

(“[W]e see no reason to treat the Club’s use of religion as something other than a

viewpoint merely because of any evangelical message it conveys.”); Rosenberger,

515 U.S. at 831 (“[V]iewpoint discrimination is the proper way to interpret the

University’s objections to [religious subject matter].”); Lamb’s Chapel, 508 U.S. at

393–94 (holding exclusion of entire subject matter of religion from forum is


43

viewpoint discrimination); Byrne v. Rutledge, 623 F.3d 46, 55 (2d Cir. 2010) (“[O]ur

task here is greatly simplified by a trilogy of Supreme Court decisions each

addressing blanket bans on religious messages and each concluding that such bans

constitute impermissible viewpoint discrimination.” (emphasis added)).

Even if the City Hall Flag Poles could be classified a limited public forum,

the City’s exclusion of Camp Constitution’s religious speech is at best unreasonable

in light of the unlimited purpose of the forum, and at worst viewpoint-

discriminatory. Either way, it is unconstitutional, and the district Court’s order must

be reversed.

C. The District Court Erred in Failing to Recognize That City’s

Policies and Practices Impermissibly Discriminate Against

and Show Hostility Towards Camp Constitution’s Religious

Speech in Violation of the Establishment Clause.

Contrary to the district court’s conclusion that granting equal access to Camp

Constitution’s religious speech “may well violate the Establishment Clause” (Order

at A-14), the City is the Establishment Clause violator by virtue of its discriminatory

exclusion of Camp Constitution’s religious speech. The Establishment Clause

“affirmatively mandates accommodation, not merely tolerance, of all religions, and

forbids hostility toward any.” Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (citing

Zorach v. Clauson, 343 U.S. 206 (1952)); Hobbie v. Unemployment Appeals Com.,

480 U.S. 136, 144-45 (1987) (“[T]he government may (and sometimes must)

accommodate religious practices and that it may do so without violating the


44

Establishment Clause.” (emphasis added)). “Indeed, the message is one of neutrality

rather than endorsement; if a State refused to let religious groups use facilities

open to others, then it would demonstrate not neutrality but hostility towards

religion.” Mergens, 496 U.S. at 248 (emphasis added).

“The touchstone for our analysis is the principle that ‘the First Amendment

mandates governmental neutrality between religion and religion, and between

religion and non-religion.’” McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 860

(2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)). Indeed, “[t]he

fullest realization of true religious liberty requires that government neither engage

in nor compel religious practices, that it effect no favoritism among sects or between

religion and nonreligion, and that it work deterrence of no religious belief.” Sch.

Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J.,

concurring); see also Van Orden v. Perry, 545 U.S. 677, 690 (Breyer, J., concurring)

(same).

The record demonstrates that the City has impermissibly discriminated

between religion and non-religion by allowing the numerous and varied “non-

religious” flags of a broad spectrum of private organizations while specifically

excluding Camp Constitution’s “non-secular” flag. (See supra, Statement of the

Case, Parts II.A.2, II.B). The record further demonstrates that the City also has

impermissibly discriminated between religion and religion by allowing the explicitly


45

religious flags of some organizations while specifically denying the “non-secular”

flag of Camp Constitution. (See id.) The City’s discrimination between religion and

non-religion, and between religion and religion, is unconstitutional, and it was error

for the district court to conclude otherwise.

D. The District Court Erred in Ignoring the Presumptively

Unconstitutional Prior Restraint Inherent in the City’s

Unwritten Forum Policy.

This district court’s Order did not address Camp Constitution’s argument that

the City’s policies and practices concerning the designated public forum at the City

Hall Flag Poles comprise a presumptively unconstitutional prior restraint. (Pls.’ Mot.

Prelim. Inj. at JA60; Mem. Law Supp. Pls.’ Mot. Prelim. Inj., Dist. Ct. Doc. 8, at

13–15.) It was error for the district court to ignore the argument.

It is axiomatic that prior restraints are highly suspect and disfavored. See

Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992). Indeed, “[a]ny

system of prior restraints of expression comes to this Court bearing a heavy

presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan,

372 U.S. 58, 70 (1963) (emphasis added) (citing cases). “Because a censor’s

business is to censor, there inheres the danger that he may well be less responsive

than a court . . . to the constitutionally protected interests in free expression.”

Freedman v. Maryland, 380 U.S. 51, 57–58 (1965).

It is offensive—not only to the values protected by the

First Amendment, but to the very notion of a free


46

society—that in the context of everyday public discourse

a citizen must first inform the government of her desire to

speak to her neighbors and then obtain a permit to do so. .

. . [A] law requiring a permit to engage in such speech

constitutes a dramatic departure from our national

heritage and constitutional tradition.

Watchtower Bible & Tract Soc’y of N.Y. v. Vill. of Stratton, 536 U.S. 150, 165–66

(2002) (emphasis added).

[A] law subjecting the exercise of First Amendment

freedoms to the prior restraint of a license must contain

narrow, objective, and definite standards to guide the

licensing authority. The reasoning is simple: If the permit

scheme involves appraisal of facts, the exercise of

judgment, and the formation of an opinion by the licensing

authority, the danger of censorship and of abridgment of

our precious First Amendment freedoms is too great to be

permitted.

Forsyth Cnty., 505 U.S. at 131 (citations and internal quotation marks).

It is settled by a long line of recent decisions of this Court

that an ordinance which . . . makes the peaceful enjoyment

of freedoms which the Constitution guarantees contingent

upon the uncontrolled will of an official—as by requiring

a permit or license which may be granted or withheld in

the discretion of such official—is an unconstitutional

censorship or prior restraint upon the enjoyment of those

freedoms.


47

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 226 (1990) (alteration in original)

(citations and internal quotation marks omitted).14

The City’s unwritten, standard-less policy and practice is an unconstitutional

prior restraint at the zenith of danger to First Amendment freedoms. The policy and

practice vests unbridled discretion in one City official, Appellee Rooney, to

determine whether proposed speech is sufficiently “non-secular” to be “consistent

with the City’s message, policies, and practices,” and allows the official to deny the

proposed speech despite meeting all of the City’s written criteria for use of its

designated public fora. (Rooney Aff. ¶¶ 15–17, 21–22, JA63–65.) Neither the

purported “non-secular” criterion, nor “the City’s message” with which proposed

speech must comply, are defined or even mentioned in the City’s written policies

14 See also Saia v. People of State of N.Y., 334 U.S. 558, 562 (1948) (“When a

city allows an official to ban [speech] in his unfettered control, it sanctions a device

for suppression of free communication of ideas.”); City of Lakewood v. Plain Dealer

Publ’g Co., 486 U.S. 750, 763 (1988) (holding danger of viewpoint discrimination

“at its zenith when the determination of who may speak and who may not is left to

the unbridled discretion of a government official”); id. at 764 (“[E]ven if the

government may constitutionally impose content-neutral prohibitions on a particular

manner of speech, it may not condition that speech on obtaining a license or

permit from a government official in that official’s boundless discretion.”

(emphasis added)); id. at 757 (“[T]he mere existence of the licensor’s unfettered

discretion, coupled with the power of prior restraint, intimidates parties into

censoring their own speech, even if the discretion and power are never actually

abused.”); Forsyth Cnty., 505 U.S. at 133 (“The First Amendment prohibits the

vesting of such unbridled discretion in a government official.” (emphasis

added)).


48

and guidelines for applicants seeking to access the City’s designated public fora for

expression. These dispositive constitutional dangers are admitted by the City and

therefore beyond dispute. The district court’s order should be reversed for failing to

enjoin the City’s policy and practice as an unconstitutional prior restraint.

II. THE DISTRICT COURT’S ORDER SHOULD BE REVERSED

BECAUSE PLAINTIFFS ARE SUFFERING IRREPARABLE HARM.

The district court also erred in concluding that Camp Constitution would

suffer no irreparable injury absent injunctive relief. (Order at A-17.) This conclusion

ignores the unquestionable mandate of the First Amendment that religious speech

not be treated as a constitutional orphan by government bodies that have otherwise

opened up a designated public forum for private expression. See Pinette, 515 U.S. at

760. It is axiomatic that “[t]he loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427

U.S. 347, 373 (1976); see also Wallace v. Jaffree, 472 U.S. 38, 44 n.22 (1985); N.Y.

Times Co. v. U.S., 403 U.S. 713 (1971). A citizen who exercises the right to free

speech exercises a right that “‘lies at the foundation of free government . . . .’”

Schneider v. State, 308 U.S. 147, 165 (1939). The deprivation of such protected

rights constitutes, a priori, irreparable harm. “‘The constitutional right of free

expression is . . . intended to remove governmental restraints from the arena of public

discussion, putting the decision as to what views shall be voiced largely into the

hands of each of us . . . .’” Simon & Schuster, Inc. v. Members of New York State


49

Crime Victims Bd., 502 U.S. 105, 116 (1991) (quoting Leathers v. Medlock, 499 U.S.

439, 448–49 (1991)).

This Court has affirmed that where, as here, plaintiffs have made “a strong

showing of likelihood of success on the merits of their First Amendment claim, it

follows that the irreparable injury component of the preliminary injunction analysis

is satisfied as well.” Fortuno, 699 F.3d at 15 (citing Elrod, 427 U.S. at 373); see also

Maceira v. Pagan, 649 F.2d 8, 18 (1st Cir. 1981) (“We also believe that plaintiffs

have made a sufficient showing of irreparable injury. It is well established that the

loss of first amendment freedoms constitutes irreparable injury.”). Since Camp

Constitution has shown a likelihood of success on the claim that the City’s policy

and practice violates the First Amendment, “[t]here is no need for an extensive

analysis of this element of the preliminary injunction inquiry.” Fortuno, 699 F.3d at

15. Thus, the district court’s conclusion to the contrary was in error.

III. THE DISTRICT COURT’S ORDER SHOULD BE REVERSED

BECAUSE THE BALANCE OF EQUITIES AND PUBLIC INTEREST

FAVOR INJUNCTIVE RELIEF.

With respect to the other preliminary injunction factors, the district court

concluded that the balance of harms and public interest weigh against injunctive

relief, supposing that “it makes little sense” to require the City to grant Camp

Constitution equal access to the City Hall Flag Poles. (Order at A-18.) The district

court further reasoned that the injunction would expose the City to Establishment


50

Clause claims. (Id.) None of these conclusions is supportable. First, as shown above,

granting equal access to Camp Constitution’s religions speech would not violate the

Establishment Clause. (See supra, Argument, Part I.B.3.b.) Second, the balance of

harms and public interest favor Camp Constitution.

Where, as here, the City’s policy and practice is depriving Camp Constitution

of the ability to speak and provide information, it creates a hardship for both Camp

Constitution and its intended audience. Fortuno, 699 F.3d at 15. Quoting the

Supreme Court’s decision in Citizens United v. Federal Election Commission, 558

U.S. 310, 339 (2010), this Court said, “The right of citizens to inquire, to hear, to

speak, and to use information to reach consensus is a precondition to enlightened

self-government and a necessary means to protect it.” Fortuno, 699 F.3d at 15. “To

deprive plaintiffs of the right to speak will therefore have the concomitant effect of

depriving ‘the public of the right and privilege to determine for itself what speech

and speakers are worthy of consideration.’” Id.

By contrast, permitting the display of a Christian flag on the City Hall Flag

Poles will not harm the City in any way. Not only is there no legitimate

Establishment Clause concern, but also the City will not have to change or republish

any written guidelines for its “public forums.” The City merely will have to set aside

its unwritten policies and practices. Therefore, as was true in Fortuno, there will be

no disruption. Id. at 16. “The only consequence of this injunction will be that


51

juridical persons who were unlawfully prevented from engaging in political speech

will now be able to engage in such speech.” Id. The balance of equities clearly

weighs in favor of Camp Constitution.

The public interest is also served by the requested injunction. Protection of

constitutional rights is of the highest public interest. Elrod, 427 U.S. at 373.

Protecting First Amendment rights is ipso facto in the interest of the general public.

Machesky v. Bizzell, 414 F.2d 283, 288–90 (5th Cir. 1969) (“First Amendment rights

are not private rights . . . so much as they are rights of the general public.”) The

protection of constitutional rights and the public policy considerations of free

dissemination of ideas clearly outweigh any purported concerns of the City. See

Fortuno, 699 F.3d at 15. Whatever inconvenience the City might claim to suffer

pales into insignificance when contrasted with the gross violation of Camp

Constitution’s cherished constitutional liberties and the harm the public must suffer

under the City’s unconstitutional policies and practices.

CONCLUSION

For the foregoing reasons, the district court’s denial of Camp Constitution’s

motion for preliminary injunction was in error, and this Court should reverse.


52

s/ Roger K. Gannam

Mathew D. Staver

Horatio G. Mihet

Roger K. Gannam

Daniel J. Schmid

LIBERTY COUNSEL

P.O. Box 540774

Orlando, FL 32854-0774

Phone: (407) 875-1776

Facsimile: (407) 875-0770

Email: [email protected]

Attorneys for Plaintiffs-Appellants

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT,

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS

1. This document complies with the type-volume limitation of Fed. R.

App. P. 32(a)(7)(B). Not counting the items excluded from the length by Fed. R.

App. P. 32(f), this document contains 12,447 words.

2. This document complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6). This

document has been prepared using Microsoft Word in 14-point Times New Roman

font.

DATED this February 2, 2019

/s/ Roger K. Gannam

Roger K. Gannam

Attorney for Plaintiffs-Appellants


53

CERTIFICATE OF SERVICE

I hereby certify that on this February 2, 2019, I caused the foregoing to be

filed electronically with this Court. Service will be effectuated on the following via

the Court’s ECF/electronic notification system:

Robert Arcangeli

Assistant Corporation Counsel

City of Boston Law Department

City Hall, Room 615

Boston, MA 02201

(617) 635-4044

[email protected]

/s/ Roger K. Gannam

Roger K. Gannam

Attorney for Plaintiffs-Appellants


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ADDENDUM TO OPENING BRIEF OF PLAINTIFFS-APPELLANTS

TABLE OF CONTENTS

Dist. Ct.

Doc. # Document Page

19 MEMORANDUM AND ORDER

(denying Plaintiffs’ Motion for Preliminary Injunction) A-1


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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

__________________________________________ ) )

HAROLD SHURTLEFF et al., ) )

Plaintiffs, ) )

v. ) Civil Action No. 18-cv-11417-DJC )

CITY OF BOSTON et al., ) )

Defendants. ) ) __________________________________________)

MEMORANDUM AND ORDER

CASPER, J. August 29, 2018

I. Introduction

Plaintiffs Harold Shurtleff and Camp Constitution (“Plaintiffs”) have moved for a

preliminary injunction against Defendants, the City of Boston and Gregory T. Rooney, in his

official capacity as Commissioner of the City of Boston Property Management Department

(collectively, “Defendants” or “the City”). D. 7. Plaintiffs seek to enjoin the City from denying

permission to the Plaintiffs to display “the Christian flag” on a City Hall flagpole in conjunction

with their Constitution Day and Citizenship Day event on or around September 17, 2018. D. 7 at

2. For the reasons discussed below, Plaintiffs’ motion for a preliminary injunction, D. 7, is

DENIED.

II. Standard of Review

“A preliminary injunction is an ‘extraordinary and drastic remedy.’” Voice of the Arab

World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011) (quoting Munaf v.

Geren, 553 U.S. 674, 689-90 (2008)). To obtain a preliminary injunction, the Court must consider:

Case 1:18-cv-11417-DJC Document 19 Filed 08/29/18 Page 1 of 18

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(1) the movant’s likelihood of success on the merits; (2) the likelihood of the movant suffering

irreparable harm; (3) the balance of equities; and (4) whether granting the injunction is in the public

interest. Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9 (1st Cir. 2013). Plaintiffs “bear[] the burden

of establishing that these four factors weigh in [their] favor.” Esso Standard Oil Co. (P.R.) v.

Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006); see Rivera-Vega v. Conagra Inc., 70 F.3d 153,

164 (1st Cir. 1995) (quoting Pye ex rel. NLRB v. Sullivan Bros. Printers, 38 F.3d 58, 63 (1994))

(noting that when the relief sought by the moving party “is essentially the final relief sought, the

likelihood of success should be strong”) (emphasis in original) (internal quotation marks omitted).

III. Factual Background

The following facts, largely undisputed, are drawn from the complaint, D. 1, Plaintiffs’

motion for a preliminary injunction, D. 7-8, and the City’s opposition, D. 11. The City owns and

manages three flagpoles located in front of the entrance to City Hall, in an area called City Hall

Plaza. D. 11 at 2; D. 11-1 ¶ 5. The three poles are the same height, approximately 83 feet tall. D.

11 at 2. One pole regularly displays the flags of the United States and the National League of

Families Prisoner of War/Missing in Action (“POW/MIA”) flag. Id. A second pole flies the flag

of the Commonwealth of Massachusetts. Id. The dispute in this case centers on the third flagpole,

which displays the City of Boston flag except when replaced by another flag—usually at the

request of a third-party. Id. Such a request is often made in conjunction with a proposed third-

party event to take place at a location owned by the City, one of which is City Hall Plaza. Id.

Examples of other flags that have been raised on the third flagpole are country flags, e.g., the flags

of Brazil, Ethiopia, Portugal, Puerto Rico, the People’s Republic of China and Cuba, and the flags

of private organizations, including the Juneteenth flag recognizing the end of slavery, the LGBT

rainbow pride flag, the pink transgender rights flag, and the Bunker Hill Association flag. D. 8 at


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3; D. 11 at 2. As Plaintiffs allege, the flag of Portugal contains “dots inside the blue shields

represent[ing] the five wounds of Christ when crucified” and “thirty dots that represents [sic] the

coins Judas received for having betrayed Christ.” D. 1 ¶ 36. The City of Boston flag includes the

Boston seal’s Latin inscription, which translates to “God be with us as he was with our fathers.”

D. 1 ¶ 41(a). As Plaintiffs note, the Bunker Hill Flag contains a red St. George’s cross. D. 1

¶ 41(b). Many religious groups, including Plaintiffs, have held events at City-owned properties in

the past. D. 8 at 4; D. 11 at 3.1

To apply for a permit to raise a flag at City Hall and hold an event on a City-owned

property, a party submits an application to the City. D. 11 at 3; D. 11-1 ¶ 13. The City has

published guidelines on its website for applicants. D. 8 at 3; D. 11 at 3; D. 11-1 ¶ 13. The

guidelines state that an application may be denied if the event involves illegal or dangerous

activities or if it conflicts with scheduled events. D. 8 at 3-4; D. 11 at 3. In addition, an application

may be denied if the applicant lacks an insurance certification, lies on their application, has a

history of damaging city property or failing to pay city fees or fails to comply with other

administrative requirements. D. 8 at 4; D. 11 at 3. After a party has submitted an application, the

City reviews the request to ensure it complies with all guidelines. D. 1-8 at 2; D. 11 at 3; D.11-1

¶ 15. The Commissioner of Property Management reviews applications for the City flagpole to

ensure flag requests are “consistent with the City’s message, policies, and practices.” D. 11 at 3;

D. 11-1 ¶¶ 16-17. The City does not have a written policy regarding the content of flags to be

raised. D. 8 at 4.

1 In or about 2012, Plaintiffs obtained permission to and did fly an unspecified flag on the City Hall flagpole as part of a free speech event. D. 1 ¶ 19; D. 8 at 4. Plaintiffs do not allege that they received permission to fly the Christian flag at that event.


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On July 28, 2017, Plaintiff Shurtleff emailed the City on behalf of his organization, Camp

Constitution, requesting to “raise the Christian flag on City Hall Plaza,” accompanied by “short

speeches by some local clergy focusing on Boston’s history” on one of several dates in September

2017. D. 1-1. The email included a photograph of the Christian flag, D. 1-1, which “displays a

red Latin cross against a blue square bordered on three sides by a white field.” D. 1-4. On

September 5, 2017, the City denied Shurtleff’s request to raise the Christian flag without

explanation. D. 1-3. Shurtleff asked for the “official reason” for denying the permit. Id.

Defendant Rooney wrote to Shurtleff that “[t]he City of Boston maintains a policy and practice of

respectfully refraining from flying non-secular flags on the City Hall flagpoles.” D. 1-4. Rooney

further explained that the City’s “policy and practice” was based on the First Amendment

prohibition on government establishing religion and the City’s authority to decide how to use its

flagpoles, which are a “limited government resource.” Id. Rooney concluded that “[t]he City

would be willing to consider a request to fly a non-religious flag, should [Shurtleff’s] organization

elect to offer one.” Id. In response, Plaintiffs’ counsel sent a letter to the City on September 14,

2017, taking the position that the denial was unconstitutional and declining to “submit a ‘non-

religious’ flag.” D. 1-6 at 2. Plaintiffs’ counsel attached a second application for “Camp

Constitution’s Christian Flag Raising” on October 19 or October 26, 2017. D. 1-5. The stated

purpose of the event was to “[c]elebrate and recognize the contributions Boston’s Christian

community has made to our city’s cultural diversity, intellectual capital and economic growth.”

Id. The letter stated that if Plaintiffs did not receive a response by September 27, 2017, Plaintiffs

would take “additional actions to prevent irreparable harm to the rights of [their] clients.” D. 1-6

at 4. The City neither issued a permit to Plaintiffs nor responded to the letter. D. 8 at 5; D. 11 at


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4. Since receiving the letter, Plaintiffs have not applied to hold further events on City-owned

property, with or without a flag. D. 11 at 19-20.

IV. Procedural History

On July 6, 2018, Plaintiffs filed the present complaint seeking injunctive relief, declaratory

relief and damages against Defendants. D. 1. On July 9, 2018, Plaintiffs moved for a preliminary

injunction. D. 7. On August 9, 2018, the Court heard the parties on the pending motion and took

this matter under advisement. D. 14.

V. Discussion

Plaintiffs have asserted six claims—three federal and three state constitutional: 1) a

violation of the First Amendment free speech clause; 2) a violation of the First Amendment

establishment clause; 3) a violation of the Fourteenth Amendment equal protection clause; 4) a

violation of the freedom of speech clause of Article 16 of the Massachusetts Declaration of Rights;

5) a violation of the non-establishment of religion clauses of Articles 2 and 3 of the Massachusetts

Declaration of Rights; and 6) a violation of equal protection under Articles 1 and 3 of the

Massachusetts Declaration of Rights.2

As an initial matter, federal law governs the Court’s analysis of the Plaintiffs’ claims under

both the United States and Massachusetts Constitutions. See, e.g., Commonwealth v. Barnes, 461

Mass. 644, 650 (2012) (classifying the free speech provisions of Article 16 of the Massachusetts

2 Although Plaintiffs request an order compelling the City to include a description of Plaintiffs’ event on its website, Plaintiffs have not alleged that the City denied any such request. As such, Plaintiffs have not “present[ed] a real, substantial controversy . . . a dispute definite and concrete, not hypothetical or abstract” that is ripe for resolution as to this request. Nomad Acquisition Corp. v. Damon Corp., 701 F. Supp. 10, 11 (D. Mass. 1988) (quoting Babbitt v. United Farm WorkersNat’l Union, 442 U.S. 289, 298 (1979)) (internal quotation marks and punctuation omitted).Accordingly, the Court’s analysis is limited to Plaintiffs’ claims with respect to the prayer for reliefconcerning the denial of permission to raise the Christian flag on the City flagpole.


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Declaration of Human rights as a “cognate provision” of the First Amendment); Brackett v. Civil

Serv. Comm’n, 447 Mass. 233, 243 (2006) (noting that “[t]he standard for equal protection

analysis under [Massachusetts’] Declaration of Rights is the same as under the Federal

Constitution”); Opinion of the Justices to the House of Representatives, 423 Mass. 1244, 1247

(1996) (explaining that the court’s analysis under Article 2 of the Declaration of Rights of the

Massachusetts Constitution was “based on the same standards applied under the establishment

clause of the First Amendment”). Here, neither party has meaningfully cited to Massachusetts law

to assess the constitutionality of the City’s actions. In a single footnote, Plaintiffs assert that rights

to freedom of expression are generally coextensive under the United States and Massachusetts

Constitutions and that where the two diverge, the state protections are “more extensive.” D. 8 at

6, n.1 (citing Flaherty v. Knapik, 999 F. Supp. 2d 323, 332 (D. Mass. 2014)). Plaintiffs, however,

do not specifically address how these “more extensive” protections under Massachusetts law

would apply to the instant case. Defendants assert that federal jurisprudence governs the analysis.

D. 11 at 5, n. 3. Like Plaintiffs, they note that in some instances, provisions of the Massachusetts

Constitution are more protective than those of the United States Constitution, but Defendants

contend that those instances are inapplicable to the present case. Because neither party has argued

that the Court should rely on Massachusetts law rather than federal law, the Court will address the

Massachusetts constitutional claims coextensively with their federal counterparts.

A. Likelihood of Success on the Merits

Although the Court considers all factors of the preliminary injunction analysis, “[t]he sine

qua non of this four-part inquiry is likelihood of success on the merits: if the moving party cannot

demonstrate that [it] is likely to succeed in [its] quest, the remaining factors become matters of

idle curiosity.” New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002);


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see Boathouse Grp., Inc. v. TigerLogic Corp., 777 F. Supp. 2d 243, 248 (D. Mass. 2011)

(explaining that “[l]ikelihood of success on the merits is the critical factor in the analysis and,

accordingly, a strong likelihood of success may overcome a ‘somewhat less’ showing of another

element”) (quoting EEOC v. Astra U.S.A., Inc., 94 F.3d 738, 743 (1st Cir. 1996)).

1. Free Speech Claims

The parties disagree about whether the City’s selection and presentation of the flags on the

City flagpole constitute government speech or private speech. If the flags are government speech,

as Defendants assert, “then the Free Speech Clause has no application” and the City may “select

the views that it wants to express.” Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467-68

(2009). In contrast, if the flags are private speech displayed in a limited public forum, as Plaintiffs

argue, the restriction on non-secular flags must be reasonable and viewpoint neutral. Rosenberger

v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). This Court concludes that the

selection and display of the flags on the City flagpole constitute government speech. Moreover,

even if they did not constitute government speech, the Court finds that the City’s restriction on

non-secular flags satisfies the constitutional requirements for limitations on speech in a limited

public forum.

a) The City’s Selection and Presentation of Flags ConstitutesGovernment Speech

Two leading Supreme Court cases compel the conclusion that the City’s selection and

presentation of flags on the City flagpole constitute government speech. In the first case, Pleasant

Grove City, members of a religious organization called Summum sued the city of Pleasant Grove

under the free speech clause of the First Amendment for the city’s failure to erect Summum’s

proposed monument in a public park. Pleasant Grove City, 555 U.S. at 464. The city had

previously erected other privately donated monuments in the park, including a monument of the


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Ten Commandments. Id. at 465. Summum’s proposed monument was to contain “the Seven

Aphorisms of SUMMUM” and would “be similar in size and nature to the Ten Commandments

monument.” Id. The city rejected Summum’s proposal pursuant to an unwritten rule “limit[ing]

monuments in the Park to those that ‘either (1) directly relate[d] to the history of Pleasant Grove,

or (2) were donated by groups with long-standing ties to the Pleasant Grove community.’” Id. The

Supreme Court unanimously concluded that the city’s rejection of Summum’s proposal constituted

government speech and that the “Free Speech Clause . . . does not regulate government speech.”

Id. at 467.

The Supreme Court subsequently considered a similar free speech challenge in Walker v.

Tex. Div., Sons of Confederate Veterans, Inc., __ U.S. __, 135 S. Ct. 2239 (2015). Walker

concerned the Texas Department of Motor Vehicle Board’s rejection of a proposal by the Sons of

Confederate Veterans for a vanity license plate featuring the Confederate flag. Id. at 2243-44. In

considering the design, the Board sought public comments. Id. at 2245. Following the comments,

the Board voted unanimously to reject the proposed plate because “many members of the general

public [found] the design offensive,” “such comments [were] reasonable” and “a significant

portion of the public associate the confederate flag with organizations advocating expressions of

hate directed toward people or groups that is demeaning to those people or groups.” Id. (internal

quotation mark omitted). The Court held that the Texas license plates, like the monuments in

Summum, constituted government speech and thus were not subject to the free speech clause. Id.

at 2246-47. The Court primarily focused on 1) the history of the speech at issue; 2) a reasonable

observer’s perception of the speaker and 3) control over the speech. Id. at 2248-50. Relying

heavily on Summum, the Court concluded that 1) license plates “long have communicated

messages from the States;” 2) license plates “are often closely identified in the public mind with


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the [State]” and reasonable observers “interpret them as conveying some message on the [State’s]

behalf” and 3) the state had “effectively controlled” the content of the license plates by exercising

approval authority over each request. Id. at 2247-48 (internal quotations and citations omitted).

Applying the factors from Summum and Walker to this case, the Court concludes that the

City’s selection and presentation of flags on the City flagpole constitute government speech. First,

like public monuments, “[g]overnments have long used [flags] to speak to the public.” Summum,

555 U.S. at 470; see Texas v. Johnson, 491 U.S. 397, 405 (1989) (observing that “[p]regnant with

expressive content, the flag as readily signifies this Nation as does the combination of letters found

in ‘America’”); W. Va. State Bd. of Educ. v Barnette, 319 U.S. 624, 632 (1943) (noting that “[t]he

use of an emblem or flag to symbolize some system, idea, institution, or personality, is a shortcut

from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to

knit the loyalty of their followings to a flag or banner . . .”). Second, “there is little chance that

observers [would] fail to appreciate the identity of the speaker” as the City when confronted with

a flag flying 83 feet in the air above City Hall on City property next to the flags of the United

States and the Commonwealth. Summum, 555 U.S. at 471. Third, the City has “effectively

controlled” which flags have flown at City hall “by exercising ‘final approval authority’ over their

selection.” Walker, 135 S. Ct. at 2247 (quoting Summum, 555 U.S. at 473) (internal quotation

marks omitted). Like the government entities in Summum and Walker, here the City has a

controlled process through which applicants can request to fly a flag on City-owned property.

Plaintiffs’ rejection of a proposed alternative for expressing itself also supports the

contention that flag-raising is government speech. As the Supreme Court reasoned in Walker:

Indeed, a person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message. If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate. But the individual prefers a license plate design to the purely


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private speech expressed through bumper stickers. That may well be because Texas’s license plate designs convey government agreement with the message displayed.

Walker, 135 S. Ct. at 2249.

Similar to the bumper sticker, there is nothing in the record to suggest that Plaintiffs could not

display the Christian flag on City Hall Plaza as part of their event. See D. 11 at 10. That Plaintiffs

have apparently rejected this option indicates a wish to “convey government agreement with the

message displayed.” Id.

Since the Supreme Court decisions in Summum and Walker, at least one federal court has

determined that a city’s selection of private flags on a city-owned flagpole constitutes government

speech. In United Veterans Mem’l & Patriotic Ass’n of New Rochelle v. City of New Rochelle,

615 Fed. App’x. 693, 694 (2d Cir. 2015), the court considered a First Amendment challenge to the

city’s removal of a veterans group’s flag from a flagpole in a city-owned armory. Id. The group

had previously been granted “the right to display and maintain flags” on the flagpole. Id.

Nonetheless, considering the Supreme Court decision in Walker, the Second Circuit held that

“[t]he City was well within its rights to delegate to [a private organization] the right to display and

maintain flags on the City-owned flagpole without creating a public forum of any sort, or

relinquishing control of the flags displayed.” Id. Like the court in New Rochelle, this Court

concludes that the City’s selection of flags on City-owned property is government speech and, as

a result, the free speech clause does not apply.

b) Even if the Selection and Presentation of Flags Were NotGovernment Speech, the Restriction on Non-Secular Flags isReasonable, View-Point Neutral and Permissible in a LimitedPublic Forum

If the City’s selection and presentation of flags on the City flagpole were not government

speech, their permissibility under the Constitution would be determined based on the type of forum


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at issue. There are three types of fora under First Amendment jurisprudence. One is a traditional

public forum, such as a street or a park, which “has immemorially been held in trust for the use of

the public . . . .” Hague v. CIO, 307 U.S. 496, 515 (1939). The second type is a non-public forum,

“which is not by tradition or designation a forum for public communication . . . .” Perry Educ.

Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983). Between these two types is a

“limited public forum,” which is a non-public forum that the government “has opened for use by

the public as a place for expressive activity.” Id. at 45.

Plaintiffs assert that the City has designated the flagpole as a limited public forum and that

the City’s restriction on non-secular flags in such a forum should be subject to strict scrutiny.3

Strict scrutiny, however, is not the correct standard for speech in a limited public forum. Rather,

the Supreme Court’s rule is that in a limited public forum government may not exercise viewpoint

discrimination and “may not exclude speech where its distinction is not ‘reasonable in light of the

purpose served by the forum.’” Rosenberger, 515 U.S. at 829 (quoting Cornelius v. Nat’l Ass’n

for the Advancement of Colored People Legal Def. & Ed. Fund, Inc., 473 U.S. 788, 806 (1985)).4

3 Because Plaintiffs assert that the flagpole is a limited public forum, rather than a traditional public forum, the cases that Plaintiffs cite concerning this latter category do not aid the Court’s analysis. See Rosenberger, 515 U.S. at 829-30 (stating that a prior restraint on content discrimination, unlike viewpoint discrimination, “may be permissible if it preserves the purposes of [the] limited forum”); cf. D. 8 at 13-14; Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 154 (2002) (scrutinizing ordinance that regulated speech on “private residential property”); Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992) (considering “the constitutionality of charging a fee for a speaker in a public forum”); City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 753 (adjudicating appellee’s rights to place newsracks on “city sidewalks,” which are traditional public fora). 4 Similarly, Plaintiffs’ argument that the burden shifts to the City to prove the constitutionality its policy is unavailing in the context of a limited public forum. In support of their arguments, Plaintiffs rely on Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 665-66 (2004) and Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 429 (2006). Those cases, however, involved challenges to federal legislation restricting speech and religious expression, rather than a municipal policy regulating private speech in a limited public forum.


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The City’s policy of excluding non-secular flags is viewpoint neutral because it excludes

religion as a subject matter of speech on the flagpole, rather than prohibiting religious viewpoints

on otherwise permissible subjects. See Rosenberger, 515 U.S. at 831. In Rosenberger, the

Supreme Court held that a public university could not deny funding to a student magazine

expressing Christian viewpoints on a wide range of topics while it subsidized other student

journals. Id. at 837, 846. The Court emphasized that the reason the University’s policy ran afoul

of the free speech clause was that “the University [did] not exclude religion as a subject matter but

select[ed] for disfavored treatment those student journalistic efforts with religious editorial

viewpoints.” Id. at 831. Following Rosenberger, other courts have upheld government exclusions

of religion when the policy excluded religion as a subject matter, rather than a viewpoint on other

subjects, in limited public fora. See, e.g., DiLoreto v. Downey Unified Sch. District Bd. of Ed.,

196 F.3d 958, 969 (9th Cir. 1999) (upholding high school’s decision to exclude religious

advertising funded by third parties on baseball field fence open exclusively to commercial

messages); Archdiocese of Wash. v. Wash. Metro Area Transit Auth., 281 F. Supp. 3d 88, 96

(D.D.C. 2017) (denying injunctive relief to plaintiffs challenging bus company’s policy of

excluding religious advertisements funded by third parties on buses). Here, as in the cases above,

the City has permissibly chosen to exclude religion as a subject matter, rather than as one

perspective among many on other subjects. Therefore, the City’s policy is viewpoint neutral.

The City’s policy is also reasonable based on the City’s interest in avoiding the appearance

of endorsing a particular religion and a consequential violation of the Establishment Clause. See

Such legislation is reviewed under strict scrutiny, which places the burden on the government to demonstrate a compelling interest in limiting speech and narrow tailoring of the legislation, even at the preliminary injunction stage. Gonzales, 546 U.S. at 429. In contrast, as explained above, strict scrutiny is not the proper standard of review for a restriction on speech in a limited public forum.


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Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394-95 (1993) (noting that

“[t]he interest of the State in avoiding an Establishment Clause violation ‘may be [a] compelling’

one justifying an abridgement of free speech otherwise protected by the First Amendment”)

(quoting Widmar, 454 U.S. at 271). Moreover, where the Plaintiffs the opportunity to conduct

their event on City Hall Plaza, fly a secular flag on the City flagpole or display the Christian flag

on City Hall Plaza but not on the City flagpole, the City has demonstrated reasonableness and that

it does not seek to silence Plaintiffs.

2. The Establishment Clause

As discussed above, the Court rules that the City’s selection and presentation of flags on

the City flagpole constitute government speech. Government speech must still comply with the

Establishment Clause. Summum, 555 U.S. at 468. Plaintiffs allege that the City’s policy of

displaying only non-secular flags is “overtly hostile to religion and violates the Establishment

Clause.” D. 8 at 11-12. Defendants, on the other hand, argue that the City would violate the

Establishment Clause if it were to raise the Christian flag on the City flagpole. D. 11 at 16-18.

The Court concludes that Plaintiffs have not demonstrated a substantial likelihood of success on

the merits of their claim under the Establishment Clause.

The test for reviewing the constitutionality of religious displays on government property is

the Lemon test, which holds that a government regulation must 1) “have a secular legislative

purpose,” 2) the “principal or primary effect must be one that neither advances nor inhibits

religion” and 3) the regulation “must not foster an excessive government entanglement with

religion.” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (internal quotations omitted). Cases

subsequent to Lemon have augmented the analysis with the “endorsement test.” Lynch v.

Donnelly, 465 U.S. 668, 688-89 (1984) (O’Connor, J. concurring); see Devaney v. Kilmartin, 88


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F. Supp. 3d 34, 50 (D.R.I. 2014) (treating the endorsement test as having “amplified” the Lemon

test). Under the endorsement test, the Court must consider whether the City's actions have the

“purpose or effect of endorsing, favoring or promoting religion.” Id. at 51-52 (D.R.I. 2014)

(quoting Freedom from Religion Found. v. Hanover Sch. Dist., 626 F.3d 1, 10 (1st Cir. 2010)).

Applying the Lemon and endorsement test, the Court concludes that compelling the City

to display the Christian flag on the City flagpole, as Plaintiffs seek to do, may well violate the

Establishment Clause. Certainly, an event to “raise the Christian flag” could serve some of

Plaintiffs’ cited secular purposes, such as the celebration of religious freedom in Boston and the

contributions of Boston’s Christian residents to the City. However, its primary purpose would be

to convey government endorsement of a particular religion by displaying the Christian flag

alongside that of the United States and the Commonwealth in front of City Hall. Blowing in the

wind, these side-by-side flags could quite literally become entangled. If Plaintiffs were not seeking

government endorsement, then Plaintiffs would presumably be content to raise their own flag on

their own in the same location as has been suggested. See Walker, 135 S. Ct. at 2249 (explaining

that plaintiffs sought to have their speech displayed on a license plate, rather than on a sticker next

to a license plate, because the license plate would “convey government agreement with the

message displayed”).

3. Fourteenth Amendment Equal Protection

Plaintiffs argue that the City’s policy violates the Equal Protection Clause of the Fourteenth

Amendment as it is stated and as it is applied to Plaintiffs. The Court does not conclude that

Plaintiffs have shown a likelihood of success that the City’s policy as it stands and as applied does

not rise to the level of violating Plaintiffs’ rights under the Equal Protection Clause.


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First, Plaintiffs allege that they have been deprived of equal protection of the laws because

the City’s policy prohibiting non-secular flags is unconstitutionally vague. Plaintiffs cite to five

cases standing for the proposition that government regulations cannot be overly vague so that

citizens can be informed of their rights. D. 8 at 16-17. However, none of these cases apply to the

regulation of government speech or even private speech in a limited public forum. Moreover,

although the City’s policy against flying non-secular flags is unwritten, that does not make it

unconstitutional. See Summum, 555 U.S. at 465 (upholding city’s practice of limiting the types

of monuments in park despite the policy not being put into writing until the year after the city’s

rejection of Plaintiffs’ proposed monument). While the City should strive to make its policies

clear, here Plaintiffs have failed to show that any vagueness in the policy has risen to the level of

a Fourteenth Amendment violation.

Next, Plaintiffs allege that the City’s policy against non-secular flags violates Equal

Protection because it discriminates against speech based on its content. In support, Plaintiffs

mainly rely on Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92 (1972) and Carey v. Brown,

447 U.S. 455 (1980), in which the plaintiffs prevailed on claims of speech-related Equal Protection

violations. However, the Supreme Court specifically held that the “key” to the plaintiffs’ success

in Mosley and Carey was “the presence of a public forum.” Perry, 460 U.S. at 55. The Court

further reasoned that “[c]onversely on government property that has not been made a public forum,

not all speech is equally situated, and the State may draw distinctions which relate to the special

purpose for which the property is used.” Id. For the reasons already discussed above, and

consistent with the conclusions in Perry, the Court concludes that here the City’s policy, as applied

outside of a public forum, permissibly excludes the subject of religion and does not violate Equal

Protection.


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Finally, Plaintiffs allege that they have been treated differently from other similarly situated

groups under the City’s policy in violation of Equal Protection. The Supreme Court has held that

“[w]hen speakers and subjects are similarly situated, the State may not pick and choose.” Id. As

evidence of their differential treatment, Plaintiffs cite to the display of the flags of Portugal, the

City of Boston and the Bunker Hill Association––all of which feature references to God and

Christ—on the City flagpole.5 Plaintiffs are correct that under the City’s unwritten policy, there

may be some close cases regarding which flags are “non-secular,” but these examples are not

among them. The exemplar flags, unlike the Christian flag, comply with the Lemon test in that

their primary effect is not to advance or inhibit religion. Lemon, 403 U.S. at 612. The names of

the flags alone are enough to reveal their primary purposes. The Christian flag primarily represents

a specific religion, while the other cited flags represent a sovereign nation, a city government and

a group committed to remembering a military victory. Therefore, Plaintiffs are not similarly

situated to the sponsors of the Portuguese, City of Boston and Bunker Hill Association flag events

and have failed to make out a claim of differential treatment in violation of the Fourteenth

Amendment.

For all of the aforementioned reasons, Plaintiffs have failed to show a reasonable likelihood

of success on the merits of their claims.

5 Plaintiffs also emphasize the City’s prior decisions to grant permission to private parties to raise the LGBT rainbow pride flag, transgender rights flag and the Juneteenth flag on the City flagpole. However, none of these flags are religious on their face. To the extent that Plaintiffs are being treated differently than the groups that raised those flags, that treatment is based on the City’s reasonable choice to exclude religion as a subject matter on the flagpole and does not violate the Fourteenth Amendment.


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B. Irreparable Harm

To obtain a preliminary injunction, Plaintiffs must show a “significant risk of irreparable

harm if the injunction is withheld,” Nieves-Márquez v. P.R., 353 F.3d 108, 120 (1st Cir. 2002). It

is well-established “[t]he loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

Plaintiffs’ claims of irreparable harm absent expedited relief, however, are undermined by their

delay in raising constitutional claims related to the City’s denial of their application. See Gorman

v. Coogan, 273 F. Supp. 2d 131, 134 (D. Me. 2003) (noting that “[p]reliminary injunctions are

generally granted under the theory that there is an urgent need for speedy action to protect the

plaintiffs’ rights. Delay in seeking enforcement of those rights . . . tends to indicate at least a

reduced need for such drastic, speedy action”) (internal citation and quotation marks omitted).

Plaintiffs are also unlikely to suffer irreparable harm without a preliminary injunction

because they may still hold an event celebrating Constitution Day in their desired forum. Although

Plaintiffs have not applied to the City to hold an event since September 2017, the record in this

case indicates that the City will give Plaintiffs permission to communicate their ideas in several

ways, on or around Plaintiffs’ requested date this year. As the City has done in the past, it will

allow Plaintiffs to hold an event on City Hall Plaza. It will also give Plaintiffs the opportunity to

raise a non-secular flag on the City flagpole and display the Christian flag while on City Hall Plaza.

D. 1-4; D. 11 at 10. The City has only denied Plaintiffs permission to compel the City to endorse

a particular religion by raising the Christian flag. Given the range of options available to Plaintiffs

for their event on City-owned property, the Court concludes Plaintiffs are unlikely to suffer

irreparable harm without an injunction.


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C. The Balance of Harms and the Public Interest

The final considerations in weighing the grant of a preliminary injunction are “a balance

of equities in the plaintiff’s favor, and [] service of the public interest.” Arborjet, Inc. v. Rainbow

Treecare Sci. Advancements, 794 F. 3d 168, 171 (1st Cir. 2015). In support of their arguments,

Plaintiffs rightly remind the Court that “[t]he right of citizens to inquire, to hear, to speak, and to

use information to reach consensus is a precondition to enlightened self-government and a

necessary means to protect it.” Sindicato Puertorriqueño de Trabajadores v. Fortuño, 699 F.3d 1,

15 (1st Cir. 2012) (quoting Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010))

(internal quotation marks omitted). However, on this record, the Court is persuaded that

Defendants have not unlawfully restricted Plaintiffs’ ability to speak publicly.

On the other hand, Defendants risk serious consequences from the grant of a preliminary

injunction. Given that Plaintiffs have not established a substantial likelihood of success on the

merits, it makes little sense to require the City to fly the requested flag pending the adjudication

of this case. Raising the Christian flag might also possibly make the City vulnerable to

Establishment Clause claims and other constitutional challenges before this case had been decided

on the merits. D. 11 at 20. With these considerations in mind, the balance of harms to the parties

and the public interest weigh against granting the preliminary injunction that Plaintiffs seek.

VI. Conclusion

For these reasons, Plaintiffs’ motion for preliminary injunction, D. 7, is DENIED.

So Ordered.

/s/ Denise J. Casper United States District Judge


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