Rally ‘round which flag?
Lack of consistent guidelines opens the door to controversial requests
The approach to the raising of flags on public property differs across Massachusetts. Some communities elect to just fly those representing the national, state and local governments. Others dedicate space to community groups and allow them to raise their emblems upon request.
But the approach, according to KP Law, a Massachusetts firm that represents about one-third of the state’s municipalities, should be clear, consistent and in writing.
Municipalities in Central Massachusetts seem to have taken the advice to heart. Many have instituted flag-raising policies to avoid problems, some after becoming embroiled in controversies regarding the raising of certain banners.
A First Amendment question
“It’s a free speech issue,” said Mark Reich, a shareholder at KP Law, the speaker at a recent online seminar hosted by the Massachusetts Municipal Association that explored the difference between government speech and public speech.
Public speech – whether from a soapbox, on a community billboard or flying from a municipal flagpole in the middle of a town – is protected by the First Amendment.
“If municipalities want to control the message (on flagpoles) they need to adopt a policy surrounding their use,” Reich said. Lacking a written policy and having a history of allowing outside groups and entities to raise flags dictates that they must honor all requests.
“If that door is opened, municipalities are subject to all requests and are not allowed content review,” Reich said. It results in political statements or the position of a political group flying a message to the public at the top of a flagpole for all the world to see.