Even as the Supreme Court seemed ready to reject the view that the hundreds of flags the city had allowed were all government speeches, some judges were concerned about the fallout from a broad ruling, asking, for example, whether the city would raise a flag. should be fed with a swastika.
Mathew Staver, an attorney for Camp Constitution, said yes. He added that “an informed observer” familiar with the city’s flag program and its history would know that the flags hoisted on the third flagpole represented private speech.
That claim was met with skepticism.
Such an observer must be “very knowledgeable,” Judge Kagan said. As for the more typical ones, she said, “All they know is, ‘I’ve seen the Boston City flag here a thousand times, and now I see another flag. It must be the city of Boston that has decided to do something different today.’”
Douglas Hallward-Driemeier, an attorney for Boston, said there were limits to what the city should allow. “Private parties are free to wave their flags at City Hall Plaza or even hoist a temporary flagpole there,” he said, “but they cannot claim the city’s flagpole to send a message that the city does not endorse. .”
The solution, some judges suggested, was for the city to exert more control over the process so that it would be clear that it approved of the messages the flags put out.
Judge Amy Comey Barrett outlined what such an approach might entail.
“The city of Boston sits down, asks what is going to be said and says, ‘Yeah, this is an idea that Boston can get behind,’” she said. And a government official takes part in the flag-raising ceremony, and communicates that: ‘Yes, Boston is happy to celebrate and display pride in Juneteenth, but no, Boston will not participate in the raising of the flag. the flag for the Proud Boys.'”