Shurtleff v. City of Bos., 18-1898

928 F.3d 166

Harold SHURTLEFF, and Camp Constitution, a public charitable trust, Plaintiffs, Appellants,

v.CITY OF BOSTON, and Gregory T. Rooney, in his official capacity as Commissioner of the City of Boston Property Management Division, Defendants, Appellees.

No. 18-1898

United States Court of Appeals, First Circuit.

June 27, 2019

Mathew D. Staver, with whom Roger K. Gannam, Jacksonville, FL, Horatio G. Mihet, Daniel J. Schmid, and Liberty Counsel were on brief, for appellants.

John Eidsmoe, Foundation for Moral Law, on brief for Foundation for Moral Law, amicus curiae.

Daniel M. Ortner, Deborah J. La Fetra, Sacramento, CA, and Pacific Legal Foundation, on brief for Pacific Legal Foundation, amicus curiae.

Robert S. Arcangeli, Assistant Corporation Counsel, City of Boston Law Department, with whom Eugene L. O'Flaherty, Corporation Counsel, was on brief, for appellees.

Richard B. Katskee, Carmen N. Green, Patrick Grubel, Americans United for Separation of Church and State, Jeffrey I. Pasek, Cozen O'Connor, Steven M. Freeman, David L. Barkey, Amy E. Feinman, Anti-Defamation League, Amrith Kaur, Cindy Nesbit and Sikh Coalition, on brief for Religious and Civil-Rights Organizations, amici curiae.

Before Torruella, Selya, and Lynch, Circuit Judges.

TORRUELLA, Circuit Judge.

This appeal arises from the denial of a preliminary injunction that would have required the City of Boston ("City") to temporarily raise a "Christian flag" on a government-owned flagpole in front of its City Hall. Plaintiff-appellant Harold Shurtleff is the director of Camp Constitution, a volunteer association (and also a plaintiff-appellant here) established in 2009 to "enhance understanding of the country's Judeo-Christian moral heritage, the American heritage of courage and ingenuity, [and] the genius of the United States Constitution," among other things. To commemorate Constitution and Citizenship Day in September 2017, Shurtleff, in his role as director of Camp Constitution, organized an event to be held at the plaza in front of City Hall. Shurtleff alleges he intended this event to be a celebration of the Christian community's civic and social contributions to the City and the Commonwealth of Massachusetts, as well as of Christian support for religious tolerance, the rule of law, and the United States Constitution. Shurtleff sought a permit from the City to raise a Christian flag¹ on one of the City Hall Plaza flagpoles during the proposed celebration. That flag would have been raised next to poles flying the United States and Massachusetts flags and in place of the City of Boston flag, normally flown there.

The City denied Shurtleff's flag-raising request, but otherwise allowed him and Camp Constitution to host their event at City Hall Plaza. Shurtleff and Camp Constitution filed suit almost a year later, raising Free Speech, Establishment Clause, and Equal Protection claims, and seeking a preliminary injunction to prevent the City from denying them a permit to raise the flag. The district court denied the injunction and we now affirm.

I.

City Hall Plaza is at the entrance of Boston's City Hall. A trio of eighty-three-foot tall poles that the City owns and controls stands in the Plaza. Two of the poles usually fly the United States and Massachusetts flags. At issue here is the third pole, which displays the City's flag except when temporarily replaced by another flag upon the request of a third-party person or organization. Requests to replace the City's flag with another flag are often accompanied by a proposed third-party event to take place at a City-owned venue, such as the Plaza. In the past, the pole in dispute has displayed country flags (according to the complaint, those of Albania, Brazil, Cuba, Ethiopia, Italy, Mexico, Panama, the People's Republic of China, Peru, Portugal, and also that of the territory of Puerto Rico) as well as the flag of the Chinese Progressive Association, the LGBT rainbow flag, the transgender rights flag, the Juneteenth flag commemorating the end of slavery, and that of the Bunker Hill Association.

Some of these third-party flags contain what Shurtleff alleges is religious symbolism. For instance, the Portuguese flag contains "dots inside the blue shields represent[ing] the five wounds of Christ when crucified" and "thirty dots that represents [sic] the coins Judas received for having betrayed Christ." The Bunker Hill Flag contains a red St. George's cross. And the City flag itself includes the Boston seal's Latin inscription, which translates to "God be with us as he was with our fathers." But nothing in the record indicates that the City has ever allowed the flag of any religion to be raised on the flagpole at issue.²

Interested parties must apply to the City for a permit before they can hold an event and/or raise a flag at the Plaza. The City has published guidelines for permit applicants on its website. According to the guidelines, permits may be denied for several reasons, including that the applicant plans to host illegal activities on City property or if the proposed event poses a danger to public health and safety. Applications may also be denied if they do not comply with other relevant permit requirements, ordinances, or regulations. The Office of Property and Construction Management leads the application review process and is charged with ensuring that all applications meet City guidelines. And the Commissioner of Property Management himself reviews flag-raising applications for the City Hall Plaza poles to ensure that they are "consistent with the City's message, policies, and practices." There is no written policy regarding which flags may be raised on the City Hall poles.

On July 28, 2017, Shurtleff emailed the City requesting a permit to "raise the Christian Flag on City Hall Plaza." Shurtleff proposed several dates in September 2017 for the flag raising and explained that Camp Constitution would sponsor the event, which was also to include "short speeches by some local clergy focusing on Boston's history." Shurtleff's email to the City also included a photo of a Christian flag to be raised, which has a white field and a red Latin cross inside a blue canton. On September 5, 2017, Shurtleff received an email response from the City denying his request to raise the flag. The City's response did not offer a reason for the denial.

Unsatisfied, Shurtleff emailed the City the next day to inquire about the "official reason" for denying his application. Two days later, on September 8, Shurtleff received an email from Gregory T. Rooney, the City's Commissioner of Property Management, explaining that his request was denied because "[t]he City of Boston maintains a policy and practice of respectfully refraining from flying non-secular flags on the City Hall flagpoles." Rooney's email explained that such a "policy and practice is consistent with [both] well-established First Amendment jurisprudence ... [and] with [the] City's legal authority to choose how a limited government resource, like the City Hall flagpoles, is used." Before signing off, Rooney informed Shurtleff that the "City would be willing to consider a request to fly a non-religious flag, should your organization elect to offer one." Shurtleff's plan to host an event at City Hall Plaza, however, was allowed to go forward.

Around September 13, 2017, Shurtleff submitted a renewed event and flag-raising application to the City, asking to use City Hall Plaza and its flagpoles for the "Camp Constitution Christian Flag Raising." Shurtleff's event description explained that the "Christian flag is an important symbol of our country's Judeo-Christian heritage" and that the aim of the flag raising was to celebrate "our Nation's heritage and the civic accomplishments and social contributions of the Christian community to the Commonwealth of Massachusetts, religious tolerance, the Rule of Law, and the U.S. Constitution." On September 14, Shurtleff's counsel sent a letter to Boston Mayor Martin Walsh -- with copy to other City officials -- that enclosed Shurtleff's September 13 application to celebrate a "Christian Flag Raising." This letter requested that the City approve Shurtleff's flag-raising application on or before September 27, 2017. The City neither issued a permit nor replied in reaction to Shurtleff's September 13 and 27 communications. Since then, Shurtleff has not applied to hold any events on City grounds, with or without a flag.

Shurtleff and Camp Constitution filed suit on July 6, 2018, seeking injunctive relief, declaratory relief, and damages against the City and Rooney in his official capacity as Commissioner of the City's Property Management Division. Appellants aver, inter alia, that the City "violated [their] First Amendment right to Freedom of Speech by preventing [them] from displaying the Christian flag as part of a celebration of the Christian community and America's Judeo-Christian heritage to be held at [the City's] designated public fora at City Hall Plaza and [its] flagpoles." Shurtleff and Camp Constitution moved for a preliminary injunction on July 9, 2018. The district court heard argument on August 9, 2018, and issued an opinion denying their request on August 29, 2018.

Shurtleff v. City of Bos., 337 F. Supp. 3d 66, 79 (D. Mass. 2018). Among other things, the court held that the preliminary injunction could not proceed because the "City's selection and presentation of flags on the City flagpole constitute government speech," id. at 73, and government speech escapes scrutiny under the Free Speech Clause.

II.

Before it grants a preliminary injunction, a district court is required to consider (1) the movant's likelihood of success on the merits; (2) the likelihood of the movant suffering irreparable harm; (3) the balance of equities; and (4) whether granting the injunction is in the public interest. Díaz-Carrasquillo v. García-Padilla, 750 F.3d 7, 10 (1st Cir. 2014). And when faced with an interlocutory appeal, as we are in this...