Let the Pride flag fly in Glens Falls

Scotus says city can control its flagpoles

Read the first three paragraphs of the Supreme Court’s Boston flagpole decision and the solution to Glens Falls’ pride flag question is clear. I encourage members of the Common Council, especially Mayor Bill Collins, to do that. Better yet, one of them could read those paragraphs aloud during the council’s next meeting.

Collins has presented a request from the local Pride group to have the Pride rainbow flag flown at City Hall as a dilemma for the city. Glens Falls wants to be welcoming, he said, but giving one group access to the flagpole could mean the city would be required to allow any group the same access.

He is wrong.

Collins refers to the 2022 Supreme Court decision, Shurtleff vs. City of Boston but misinterprets it. Here are the first two sentences of the majority decision, written by Justice Stephen Breyer:

“When the government encourages diverse expression — say, by creating a forum for debate — the First Amendment prevents it from discriminating against speakers based on their viewpoint. But when the government speaks for itself, the First Amendment does not demand airtime for all views.”

By putting the Pride flag on its own city flagpole, Glens Falls would be speaking for itself.

The court decided against Boston because it had been allowing any and all groups to raise their flags on its flagpole for 12 years, from 2005 to 2017. Then, in 2017, Harold Shurtleff asked to raise what he described as “the Christian flag,” and Boston said no.

Breyer points out Boston had, at the time, “no written policy limiting use of the flagpole based on the content of the flag.”

The problem was not that Boston put up flags other than official governmental ones, but that it had no policy and no process of review.

Governments also have speech rights. They are allowed to “promote a program” or “espouse a policy.” But in the absence of a program or a policy, they may cede their free speech rights to the public.

Breyer summarizes the question: 

“The parties dispute whether, on these facts, Boston reserved the pole to fly flags that communicate governmental messages, or instead opened the flagpole for citizens to express their own views. If the former, Boston is free to choose the flags it flies without the constraints of the First Amendment’s Free Speech Clause. If the latter, the Free Speech Clause prevents Boston from refusing a flag based on its viewpoint.”

The Common Council does not have to agonize over this. A simple policy will be sufficient — something like this: “Flags other than the flags of the United States and the state of New York and the POW-MIA flag may be flown on the city’s flagpoles at designated times if they comport with the values of the city as determined by a majority vote of the Common Council.”

Then the rainbow flag and others could be raised without fear of creating a “public forum,” in which all manner of banners would have to be allowed. The Common Council would be free to reject any flag it chose.

All of this is clear when reading the Supreme Court decision, which I have to wonder whether Collins and other Common Council members have done.

A Post-Star story about the issue did not clarify things, as it misstated the content of the Supreme Court decision.

“Boston was basing its decision to deny a flag because they did not like the group the flag represented, which is censorship by the government, the court ruled,” the Post-Star story says, incorrectly.

The Supreme Court ruled that Boston has every right to allow certain flags and deny others on the basis of whether it likes the group the flag represents, as long as the city makes clear it is controlling the process. Then the displays are “government speech,” and governments, too, are allowed to speak.

Members of the Common Council could immediately approve the flying of the Pride flag for June, which is Pride month. At the same time, they could announce that they are working on a flagpole policy and will be discriminating in their permissions.

Mayor Collins suggested as one of three options putting up a new flagpole for use of public groups. This would create the “public forum” he says he wants to avoid, allowing reprehensible groups like white nationalists to make the argument that they, too, should be allowed to fly their flags on city property.

Glens Falls is a welcoming, wonderful place. The city is allowed to celebrate those qualities on its flagpoles, and it should start doing so.