MMA webinar discusses flag flying practices

An MMA webinar today reviewed recommended policies and best practices for handling requests from third parties to fly flags on municipal property.

Attorney Mark Reich of KP Law began by making the important distinction between government speech and private speech in a public forum. Government speech is controlled by the government itself, and does not include the expression of opinions by members of the public.

In a May 2022 decision in Shurtleff v. City of Boston, concerning the city’s refusal to raise a “Christian flag” outside of City Hall, the U.S. Supreme Court focused on the question of whether raising the flag was an act of government speech or private expression.

Reich said the key takeaway from Shurtleff is the importance of giving thoughtful consideration to any formal policies or informal practices allowing nongovernmental entities to fly flags on public flagpoles, and documenting them. Once a forum — such as a flagpole — becomes open to the public, he said, the extent to which a municipality can restrict requests relies upon an implemented policy.

Municipalities may implement policies that specify some degree of control over flagpoles as public forums. Without a policy, municipalities could be forced to allow flags to fly that do not align with the community’s beliefs. It’s problematic to deny flag requests without a policy in place, as the municipality could unintentionally engage in content-based discrimination that violates the First Amendment, Reich said.

He said it may be particularly important for municipalities to consider adopting a policy if they have allowed individual expression flags in the past, given that such requests could increase.

Reich described the differences between a basic and detailed policy, encouraging attendees to consult their town counsel as they consider written guidelines.

A basic flag flying policy could solely list what flags are to be flown (e.g., federal, Commonwealth, municipal, POW/MIA, or flags representing armed services) and include a statement about municipal flagpoles being limited to government speech. A more detailed policy would also indicate which additional types of flags may be flown, as determined by the municipality.

If a municipality has more than one flagpole, it may consider designating one of them as a public forum. Reich recommended posting a sign at these poles, indicating that the ideas and opinions represented are public speech and not necessarily the views of the municipality itself.

MMA Legislative Director Dave Koffman moderated 35 minutes of questions and answers, which addressed inquiries about the timing of policy implementation, public displays on banners and bulletin boards, flying the POW/MIA flag, and flagpoles on public school property.

• SCOTUS – Boston’s Flag-Raising Decision Unconstitutional – KP Law eUpdate (613K PDF)