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OPINION

A high court loss for Boston could come at a high price — unless it acts fast

The city can end the policy that put it — and First Amendment religious jurisprudence — in this precarious position.

The Unity flag waves in the wind above Boston City Hall Plaza next to an American flag and a Massachusetts state flag on June 5, 2020.City of Boston

There’s a common saying in the legal community that bad facts make bad law. That adage could be proved right in a Supreme Court battle over a flagpole on Boston City Hall Plaza.

The court seems likely to issue a ruling that would not only make it harder for Boston and other cities to draw a line between religious and government speech, but also to stop hateful messages from having a home on government property.

There may still be a way to avoid that outcome, but only if Boston officials act — and fast — by dropping a policy allowing public use of a City Hall flagpole and asking the court to drop the case.

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Under that policy, the flagpole that usually carries Boston’s flag has featured flags commemorating Boston Pride, Juneteenth, and other observances. It’s also flown the flags of countries that have ties to Boston communities.

But when Harold Shurtleff, a conservative activist and director of the group Camp Constitution, sought a permit to fly a flag featuring a red cross inside a blue box — called the Christian Flag — he was denied. City officials reasoned that raising a religious flag on City Hall would look like government-sponsored religious speech, which is prohibited by the Establishment Clause. Shurtleff was told he could reapply for a permit to fly a nonreligious flag.

Instead, Shurtleff sued the city, claiming the policy violated his free speech rights and unconstitutionally discriminated against religious speech.

A federal appeals court sided with the city. But when Shurtleff sought and was granted review by the nation’s highest court, an interesting thing happened: The Biden administration and the ACLU backed Shurtleff.

That’s because the case turns on whether that flagpole, under Boston’s policy, is a government-controlled speech platform or a limited public forum that allows for nongovernmental speech. The city claims it’s the former, and it is therefore prohibited by the Constitution from displaying religious messaging there, and that it also has the right to deny any kind of message that the city doesn’t endorse.

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The Biden administration disagrees. “Unlike a private property owner or a private speaker, when the government chooses to open up its own property for use by third parties to express their messages, the government cannot restrict access based on viewpoint, including religious viewpoints,” Sopan Joshi, assistant to the US solicitor general, argued at the court.

The court seemed to indicate, based on the justices’ line of questioning, that this is the winning position. But if the court goes too far with its ruling, it could end up tying the hands of government officials who seek to prevent religious imagery from being displayed on public property. This is a crucial point, given the history of hate groups and other extremist organizations using religion in its messaging.

“What the City cannot afford is the idea that the flagpole has become a place where . . . the swastika flag, the Confederate flag, ISIS, Al Qaeda, all of these could be flown,” said Douglas Hallward-Driemeier, the attorney representing Boston at the court.

Several justices pointed out that the city caused this mess. It cannot allow the flagpole to be used as a public forum and then claim the right to deny religious messages too. That may have been what caused some justices on the court to question why Boston didn’t fix this problem a lot sooner.

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“This was a mistake,” Justice Elena Kagan said of the city’s approach. “And why is it that people have not been able to correct this mistake?”

“Can’t it be settled?” Justice Stephen Breyer asked.

Hallward-Driemeier said the city “would be very happy to discuss settlement.” The problem is that Shurtleff’s attorney, sensing a likely victory, didn’t seem so keen.

Boston needs to try anyway.

It can end the policy that put the city — and First Amendment religious jurisprudence — in this precarious position. The city can retain full control of its flagpole as a venue of governmental speech by ending the practice of allowing private parties to use it. There are plenty of public spaces where individuals and groups can express viewpoints, and where the city is prohibited from stopping them whether the government agrees with the message or not. The Straight Pride Parade comes to mind.

Then it can petition the court to dismiss the case. That may not work — the court could find that now a ruling is the only way to address Boston’s past actions even if they change the policy for the future. But it’s worth taking a shot, because the alternative seems likely to be a total loss — one whose effects will ripple well last City Hall Plaza.