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Can a government control a citizen’s freedom of speech when letting the citizen use a forum provided by the government?

That was the question faced by the U.S. Supreme Court when the City of Boston was sued by a group espousing the Christian religion who wanted to fly a flag that bore a cross.

Boston said no, not on our flag pole, fearing unconstitutional entanglement of church and state. The Supremes said, yes. It might be Boston’s pole, but it was impermissibly discriminating against private expression not to let that expression use the pole.

The problem was Boston allowed use of one of its poles in City Hall Plaza by the public through applications where there was no criteria for approval or rejection of the applications.

The city’s practice was to approve flag-raisings without exception — that is, until these claimants requested to fly a flag that had the ostensible symbol of the Christian faith: the cross.

The court noted that certainly a government must be able to decide what to say and what not to say when it states an opinion, speaks for the community, formulates policies or implements programs.

The problem is that the boundary between government speech and private expression gets blurry when government invites the people to participate in a program. Then a court has to determine whether the government intends to speak for itself or to regulate private expression.

For example, messages of permanent monuments in a public park can be government speech, even when the monuments are privately funded and donated.

Also, government is doing the speaking in license-plate designs even though proposed by private groups.

It remains government speech because a state that issues the plates keeps direct control over the messages through reviewing designs and rejecting proposals.

Flags, noted the Supremes, are a way to also symbolize communities and governments. Not just the content of a flag, but also its presence and position convey important messages about government. Flying a flag other than a government’s own can also convey a governmental message.

For example, another country’s flag outside Blair House (in Washington, D.C., where foreign dignitaries stay) across the street from the White House signals that a foreign leader is visiting.

The flags on Boston’s City Hall Plaza usually convey the city’s messages — symbolizing the city, or, when half-staff, convey a community message of sympathy or remembrance. The question remained 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.

Because Boston’s flag-raising program did not sufficiently control the use of what kind of flags the public could fly, it was not government speech.

Boston’s refusal to let the claimants fly their flag was based on a “religious viewpoint.” That refusal thus violated the Free Speech Clause of the First Amendment since it was regulating private speech, not maintaining government speech.

So, there it is — another First Amendment lesson in government being too accommodating for its own good.

You need to control your speech.

Run that idea up the flag pole and see which court salutes it, why don’t you.

Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.

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