How to keep City Hall Plaza from becoming a battleground over flags
After a five-year legal battle, a simple white flag with a red Latin cross was raised over City Hall Plaza last week as several dozen members of a Christian group looked on, and somehow Boston survived the experience.
But what about the next flag-raising controversy? What if an extremist group like the Proud Boys decides it wants its banner raised high over the civic space that has been used to celebrate everything from sports championships to Pride Week to Mayor Michelle Wu’s official inauguration in June?
When the US Supreme Court ruled 9-0 in May that the city had violated the First Amendment rights of Camp Constitution by refusing to raise its banner next to the American and Massachusetts flags overlooking the plaza, it pretty much opened the door for any group with a cause — or maybe an axe to grind — to exploit that third 83-foot flagpole.
The situation cries out for a fix, and in a hurry. The Boston City Council is about to take up the challenge — with some wise instruction from the author of that Supreme Court opinion: now-retired Justice Stephen Breyer, a Massachusetts resident himself.
The case that spurred all of this soul searching over the fine art of flag waving goes back to 2017, when the city denied the request from Camp Constitution, a conservative Christian group. (The city official charged with approving such applications said at the time he feared that flying the group’s flag in the public square would violate the Constitution’s establishment clause prohibiting government from favoring a religion.)
In the previous 12 years, the city had granted 284 requests to fly 50 unique flags. Some of those were flags of other nations, marking celebrations by immigrant groups. Others included Pride Week flags, one honoring emergency medical workers and, as Breyer noted in his opinion, one for a community bank.
He wrote that the city had no written policy limiting use of the flagpole based on the content of a flag. By allowing “third-party flag raising,” he said, the city had created a public forum from which it couldn’t exclude other private groups.
If, however, the city were to take a more pro-active role in its regulation of that flagpole, then Boston’s flag-raising program would constitute “government speech” and the city could then “refuse flags based on viewpoint,” Breyer said.
“When the government wishes to state an opinion, to speak for the community, to formulate policies or to implement programs, it naturally chooses what to say and what not to say,” he wrote. “That must be true for government to work. Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans.”
Now there’s a notion only slightly less horrifying than that Proud Boys flag.
So the justice reminded city officials that while the city’s lack of involvement in the flag-raising process to date left the court no options in the Camp Constitution case, “nothing prevents Boston from changing its policies going forward.”
Of course, Boston could simply end the practice and fly the city’s own flag now and forever in that third spot. But there’s something rather sad about a civic space without a banner to recognize the event or group being honored on the plaza.
Three members of the Boston City Council — President Ed Flynn, Councilors Kenzie Bok and Ruthzee Louijeune — filed an ordinance the day before that Christian flag went up on City Hall Plaza to “clearly demarcate and codify that the city’s flagpoles are not intended to serve as a forum for free expression by the public.”
The councilors came up with a fairly short list of acceptable flags, including “flags of governments recognized by the United States,” flags displayed in conjunction with ceremonies announced by mayoral proclamation or council resolution and, yes, flags of professional sports teams.
Wu has announced her support for the measure, in a statement noting, “I’m glad we have a clear way to resolve these legal issues and bring back the beloved traditions we’ve been missing during these proceedings.”
This seems a fair way to address the Supreme Court’s concerns while upholding the plaza’s role as a place to express civic pride and unity. All that remains is to get that ordinance to Wu’s desk before some group with darker intentions tries to take advantage of the legal gap.
Flags have the power to bring us to tears as they are lowered to half-staff to mark a loss of life, and they give us something to cheer when those championship banners are raised. They should be used to bring the people of this city together, not divide them.