Shurtleff v. Boston: A Place for Flags

RV parks are baffling for place-lovers. The idea of packing up your things in a plumbed plastic box on wheels, relocating it and its numerous axles to a big parking lot with a bunch of other such vehicles, unpacking all your things, and sitting there, looking at your unpacked stuff next to your plastic box, has little appeal. It’s hard to revel in your sense of place if you can’t smell it over the black water line or hear it over the generator.

Yet, on a recent (reluctant) visit to an RV park I discovered that place travels. Or at least tries to. Above the horizon of camper roofs, a colorful array of flags announced their RVers’ passion on a number of topics: citizenship, collegiate athletics, pirate ancestry, love of seafood, etc. The effect was a sense of individualism among the monotony of gray, brown, beige, khaki, and ecru. Isn’t that a key notion of place?

The United States Supreme Court recently considered the significance of flags in the context of freedom of speech. In Shurtleff v. City of Boston, Mass., 142 S.Ct. 1583 (2022), the Court tackled Boston’s refusal to allow a private group to fly a Christian flag in the town plaza. The city had before allowed private groups to raise their flags for special events. Until a group called Camp Constitution requested to fly a Christian flag, the city had never refused a request.

When Boston did not approve Camp Constitution’s application to fly its Christian flag, the group sued for First Amendment violations. In fairness, Boston justified its refusal with its fear of violating the Establishment Clause (the First Amendment’s prohibition of government-established or promoted religion).

As a freedom of speech case, the Shurtleff opinion may not seem like the typical Law of Place case, but it offers several take-aways for us place-lovers. (Coincidentally, First Amendment cases are no stranger to the Law of Place. Take for instance City of Ladue v. Gilleo, 512 U.S. 43, 54 (1994) regarding signage and Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981), regarding strippers and all their freedom of expression.)

First, Shurtleff describes the Boston City Hall in place-loving terms:

Built in the late 1960s, Boston City Hall is a raw concrete structure, an example of the brutalist style. Critics of the day heralded it as a public building that “articulates its functions” with “strength, dignity, grace, and even glamor.” J. Conti, A New City Hall: Boston’s Boost for Urban Renewal, Wall Street Journal, Feb. 12, 1969, p. 14. (The design has since proved *1588 somewhat more controversial. See, e.g., E. Mason, Boston City Hall Named World’s Ugliest Building, Boston Herald (Nov. 15, 2008), More to the point, Boston City Hall sits on City Hall Plaza, a 7-acre expanse paved with New England brick. Inspired by open public spaces like the Piazza del Campo in Siena, the plaza was designed to be “‘Boston’s fairground,’” a “public gathering spac[e]” for the people. N. DeCosta-Klipa, Why Is Boston City Hall the Way It Is? (July 25, 2018),

Shurtleff v. City of Bos., Massachusetts, 142 S. Ct. 1583, 1587–88 (2022).
Source: Preservation Priorities, Boston Preservation Alliance (Feb. 3, 2022), https://boston-preservation. org/news-item/preservation-priorities-letter-mayor-wu

The opinion even appended a photograph of the brutalist building from the Boston Preservation Alliance. This again illustrates the highest court’s recognition that place deserves a place [can’t get enough place around here] in the law. (See Euclid v. Ambler Realty, 272 U.S. 365 (1926); Berman v. Parker, 348 U.S. 26 (1954); and Penn Central v. City of New York, 438 U.S. 104 (1978) for some of the Court’s earliest opinions on the significance of place.)

Second, Shurtleff explains the importance of flags to humanity:

Flags are almost as old as human civilization. Indeed, flags symbolize civilization. From the “primordial rag dipped in the blood of a conquered enemy and lifted high on a stick,” to the feudal banner bearing a lord’s coats of arms, to the standards of the Aztecs, nearly every society has taken a piece of cloth and “endow[ed] it, through the circumstances of its display, with a condensed power” to speak for the community. W. Smith, Flags Through the Ages and Across the World 1–2, 32, 34 (1975). Little wonder that the Continental Congress, seeking to define a new nation, “[r]esolved” on June 14, 1777, “[t]hat the Flag of the … United States be thirteen stripes, alternate red and white: that the union be thirteen stars, white in a blue field, representing a new constellation.” 8 Journals of the Continental Congress 1774–1789, p. 464 (W. Ford ed. 1907). Today, the American flag continues to symbolize our Nation, a constellation of 50 stars standing for the 50 States.

Other contemporary flags, both state and local, reflect their communities. Boston’s flag, for instance, bears the city’s seal and motto rendered in blue and buff—the colors of the Continental Army’s Revolutionary War uniforms. See Symbols of the City of Boston, City of Boston (July 16, 2016), (Symbols of Boston).

Not just the content of a flag, but also its presence and position have long conveyed important messages about government. The early morning sight of the stars and stripes above Fort McHenry told Francis Scott Key (and, through his poem, he told the rest of us) that the great experiment—the land of the free—had survived the British attack on Baltimore Harbor. See C. Lineberry, The Story Behind the Star Spangled Banner, Smithsonian Magazine (Mar. 1, 2007). No less familiar, a flag at halfstaff tells us that the government is paying its “respect to th[e] memory” of someone who has died. *1591 4 U.S.C. § 7(m). (Congress has explained, across several sections of the U. S. Code, the meaning we should take from the “position,” “manner,” “time,” and “occasions” of the American flag’s display. §§ 6, 7.) And the presence of the Royal Standard flying from Windsor Castle’s Round Tower says the Queen is home. See Windsor Castle Today, Royal Collection Trust,

Id. at 1590-91.

Ultimately, the Court concluded that Boston’s flag-raising program did not express government speech, because the city allowed basically any group to raise any flag for any reason without question. In so allowing any group to raise its flag, Boston could not discriminate against a group whose flag symbolized a religious viewpoint. Boston had violated the Free Speech Clause when it denied Camp Constitution’s request to raise its Christian flag.

Whether you are a vexillologist or just an ordinary place-lover, you have to appreciate Shurtleff. Flags are an expression of place. Even if that place is attached to 4+ wheels and its own septic tank.

Hallie ♥ historic houses and all things old. Earth + Ether Press is a passion project merging her love for old places and the books (and laws!) that will save them. She believes all problems can be solved with a long run and a cold beer (not necessarily in that order).