The impact of a U.S. Supreme Court decision in a First Amendment case centered on Boston City Hall flagpoles is being felt in Park City.
In response to the Shurtleff v. Boston opinion, Park City is clarifying its policies on the use of three types of government speech — City Council resolutions promoting specific viewpoints, flags raised on city flagpoles and the illumination of city buildings.
The Supreme Court justices ruled 9-0 last year that Boston violated the constitutional rights of Camp Constitution and its director, Harold Shurtleff, when it denied the civic organization’s request to fly a Christian flag on one of its poles during a celebration of Constitution Day and Citizenship Day. The city had approved 284 flag-raising events requested by private organizations in 12 years and had never denied an application before but refused to fly a non-secular flag based on the First Amendment’s prohibition of government establishment of religion.
Camp Constitution and Shurtleff filed suit and after a trial court judge found in favor of Boston and the 1st U.S. Circuit Court of Appeals upheld that decision, the case went up to the Supreme Court. The high court reversed the appeals court.
“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,” the Supreme Court ruling says. “But when the government speaks for itself, the First Amendment does not demand airtime for all views.”
However, Boston’s practice was to approve flag raisings without exception, the ruling noted. The city’s lack of “meaningful involvement” in the selection of flags or the crafting of their message led the Supreme Court to classify the events as private and rule the refusal to allow Camp Constitution and Shurtleff to raise their flag abridged their free speech rights.
“This case illustrates how something we think of as a forum for government speech can unintentionally be converted to a forum where the public can express ideas in a way that the government can potentially have little control over,” a Park City staff report says.
The report notes the government can say whatever it wants but issues often arise.
To avoid Boston’s situation, staffers recommended to City Council members at a March 23 meeting that they keep the current policy on the municipality’s 19 flagpoles, which allows the display of government flags only and states the poles are not a forum for free expression by the public.
There is no administrative policy regarding the illumination of city buildings to express a message and lighting is handled primarily through the special event permit process. Staff members recommended the councilors confirm the status quo by prohibiting the lighting of the buildings for viewpoint messages.
“This ensures that there will not be First Amendment issues, removes the potential need for additional resources (including staff time to change lights on buildings), and establishes a consistent, easy-to-follow rule,” the staff report says.
The biggest issue was resolutions. Some are used to adopt rules and policies or to implement legal requirements, such as prohibiting fireworks and open flames in Park City when there is a threat of wildfires.
Approximately half that were adopted by the City Council in the past five years have been message resolutions requested by outside parties, the report says. The resolutions promoting specific viewpoints have recognized Parkinson’s Awareness Month, Pride Month, the resilience of Park School District teachers and students, the return of winter and many more causes and subjects.
There is no formal vetting process and currently all proposed resolutions are reviewed by Mayor Nann Worel and a city official. By letting anyone request a resolution and putting it on the agenda, Park City could be opening up a forum, according to city staff.
“To ensure that viewpoint resolutions are government speech, there needs to be a vetting process before a resolution is considered and Council Members who do not want to adopt the resolution as government speech need to be willing to vote against the resolution, even if they agree with the message as an individual or an individual elected official,” the report says. “Because viewpoint resolutions should be government speech and because of the hurdles to do that, we recommend discontinuing the practice of adopting them.”
Instead, causes and topics could be raised and recognized by individual City Council members and by members of the public during comment periods, according to the report.
City Council members were in favor of the flagpole and lighting recommendations but rejected the suggestion on resolutions in favor of a protocol to put them on agendas, which would make them government speech.
“I just want to make sure that we as a community always feels comfortable stepping up and speaking out and supporting people who need it,” City Council member Max Doilney.
Under the protocol, if a member of the public would like the council to consider a message resolution, the request will be sent to the city recorder, who will forward it to the mayor. The mayor will then informally poll council members and if a majority of them — three or more — support the request, the resolution will be placed on the City Council agenda for consideration.
City Council member Becca Gerber said the discussion about resolutions shows “that our words matter.”
“It’s important for our most vulnerable residents to hear that we support them and we see them,” she said.
Speakers at the meeting also supported continuing to adopt viewpoint resolutions.
“I’d like to emphasize that leadership is taking a stand on items that are important to us, whether it be sustainability or various causes and interests,” Peter Tomai said. “I think it’s very important that the city can take a stand and celebrate a particular cause of importance or a goal or an aspiration.”