Counsellors At Law

Michael A. Ursillo *
2 Williams Street Andrew M. Teitz, AICP * † Tel (401) 331-2222
(at South Main Street) Scott A. Ritch * † Fax (401) 751-5257
Providence, Rhode Island 02903-2918 ——————— peteskwirz@utrlaw.com
Troy L. Costa †
Amy H. Goins * †
Peter F. Skwirz * †
Admitted in RI*, MA†

MEMORANDUM
TO: The Honorable South Kingstown Town Council; James Manni, Town
Manager

FROM: Michael Ursillo, Town Solicitor; Peter Skwirz, Assistant Solicitor

DATE: May 31, 2022

SUBJECT: Flag policy following Supreme Court decision

The United State Supreme Court recently rendered a decision in Shurtleff v. City of Boston,
(available at https://www.supremecourt.gov/opinions/21pdf/20-1800_7lho.pdf). In that case, the
Court held that the City of Boston had turned its flagpole outside of City Hall into a public forum
for private entities to raise flags and, therefore, the City could not exclude a flag from the pole
based upon the message conveyed. The Town recently received an inquiry from a member of the
public about raising a flag on a Town flagpole. This office was asked to opine on this in light of
the Shurtleff decision. This memorandum is addressed to that question. First, the memorandum
will discuss the Shurtleff decision. Next, the memorandum will discuss how that decision applies
to the Town.
I. The Shurtleff decision –
In Shurtleff, the Court considered whether private flag raising ceremonies on the Boston flagpole
outside City Hall constituted government speech (over which the City would have complete
editorial control) or whether it was a public forum for private speakers (where the government
could not discriminate based on the content of the flag). The Court decided the case by looking at
three factors: (1) history of the type of speech; (2) whether the public would perceive the flag as
government speech or as private speech; and (3) whether the City retained editorial control over
the speech.
On the first factor, the Court held the history of flags generally weighed in favor of finding flags
are government speech. But the Court held, “[w]hile this history favors Boston, it is only our
starting point.” See Shurtleff slip op. pg. 9. Beyond looking at this general history, the Court
needed to decide the fact-specific question of “whether, on the 20 or so times a year when Boston
allowed private groups to raise their own flags, those flags, too, expressed the city’s message.” Id.

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On the second factor, how the public would perceive the speech, the Court held there was not
enough evidence to “tip the scale” in either direction. Id. On the one hand, the fact that the flags
were being placed with the US flag and Massachusetts flag outside City Hall cut in favor of Boston
on the public perception factor. On the other hand, however, “Boston allowed its flag to be lowered
and other flags to be raised with some regularity” and each time these “flags were raised in
connection with ceremonies at the flagpoles’ base and remained aloft during the events.” Id.
Given these circumstances, “a pedestrian glimpsing a flag other than Boston’s on the third flagpole
might simply look down onto the plaza, see a group of private citizens conducting a ceremony
without the city’s presence, and associate the new flag with them, not Boston.” Id. Given these
conflicting facts, the Court concluded that “the public’s perception does not resolve whether
Boston conveyed a city message with these flags.” Id.
The Court determined that the third factor, “the extent to which Boston actively controlled these
flag raisings and shaped the messages the flags sent,” weighed in favor of the petitioner and against
Boston. Id. And the Court considered the third factor, government control, to be “the most salient
feature of this case.” Id. at p. 10. The Court concluded that Boston had never attempted to control
the messaging on the flags raised “at all.” Id. at p. 9. Importantly, “Boston told the public that it
sought ‘to accommodate all applicants.’” Id. at p. 10. Boston used an “application form [that]
asked only for contact information and a brief description of the event, with proposed dates and
times. The city employee who handled applications testified by deposition that he had previously
‘never requested to review a flag or requested changes to a flag in connection with approval’; nor
did he even see flags before the events.” Id. The Court found that Boston’s “practice was to
approve flag raisings, without exception,” including flags far afield from government expression,
such as the “the Metro Credit Union flag.” Id. at pp. 10-11. The Court also found it relevant that
“the city had nothing—no written policies or clear internal guidance—about what flags groups
could fly and what those flags would communicate.” Id. Accordingly, the Court held that
“Boston’s come-one-come-all attitude,” id. at p. 11, created a public forum, so that the petitioner
could not be singled out as the only applicant excluded from the flagpole.
Finally, the Court gave some practical advice, stating that “Boston could easily have done more to
make clear it wished to speak for itself by raising flags” by including a statement to that effect in
a written flag policy. Id. The Court cited the City of San Jose’s policy as an example, which
“provides in writing that its ‘flagpoles are not intended to serve as a forum for free expression by
the public,’ and lists approved flags that may be flown ‘as an expression of the City’s official
sentiments.’” Id. Accordingly, the Court indicates that a municipality may avoid turning its
flagpoles into a public forum with an appropriately drafted policy and by government officials
maintaining editorial control over what flags get flown.

II. Application of Shurtleff to the Town of South Kingstown –

Currently, the Town of South Kingstown does not have a policy allowing outside groups or
members of the public to request flags to be raised on Town flagpoles. If the Town chose to raise
flags upon request on an ad hoc basis, it could potentially lead to a claim that, just like Boston in

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the Shurtleff case, the Town is turning its flagpole into a public forum. If it is found that the Town
is turning its flagpole into a public forum, then the Town would have no discretion to deny a flag
raising based on the content of the flag. As the Town would not want to lose all control over the
content of flags on Town flagpoles, it is advisable that the Town not raise any flags at the request
of outside groups or members of the public without a policy in place setting forth “what flags
groups could fly and what those flags would communicate.” Id.
With that said, even with a policy in place, the Town cannot ensure with certainty that allowing
outside flags on the pole would not create a public forum. The only way to ensure with certainty
that the Town does not inadvertently turn the flagpole into a public forum is to prohibit flags from
all outside groups and members of the public, and only allow standard flags, such as the U.S. flag,
Town flag, R.I. flag and POW/MIA flag. If any other flags are flown and some group asks to also
fly a flag on the pole, but is denied, they could sue claiming that, like Boston in Shurtleff, the Town
has created a public forum on the pole. The outcome of such litigation could not be predicted with
certainty. If the Town wishes to ensure that there is no litigation around this issue, the Town should
only allow the U.S. flag, Town flag, R.I. flag and POW/MIA flag to be flown.

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