This educational guide is based on the linked primary sources. It is not a Court publication, is not affiliated with the Court, and is not legal advice.
In brief
Overview
The Supreme Court granted certiorari to decide whether Boston’s flag‑raising forum is government speech and whether the city could deny the petitioners’ request to raise a religious flag.
The Court held that the city’s refusal discriminated based on religious viewpoint and violated the Free Speech Clause.
The flagpoles outside Boston City Hall normally fly the American, Commonwealth of Massachusetts, and city flags on an ordinary day.
Background and question before the Court
The Supreme Court granted certiorari to resolve the questions of whether Boston’s flag‑raising forum is government speech and whether the city could lawfully deny a petition to raise a religious flag.
Justice Breyer asked when government‑public engagement transmits the government’s own message versus when it creates a forum for private speakers.
According to Justice Thomas, justice Thomas questioned whether the city’s designation of the flagpole as a limited or designated public forum was necessary for the petitioners to succeed.
What each side argues
City of Boston
According to City of Boston, the City argues that its flag‑raising forum is not government speech under Walker and Summum; it is a public forum open to all applicants.
According to City of Boston, if the flagpoles are deemed a public forum, the City acknowledges it must be viewpoint‑neutral and cannot exclude religious or offensive speech.
Respondents (Petitioners)
The Respondents contend that the sole issue is whether the City’s decision to replace Boston’s flag on the City Hall flagpole is the City’s own speech; if so, under Summum the City may select the views it wishes to express.
Mathew Staver (Petitioner’s Counsel)
According to Mathew Staver, staver testified that the City’s website and policies from 2005‑2017 state that the flagpoles are public forums open to all applicants, and those guidelines remain unchanged.
According to Mathew Staver, he argued that the First Circuit erred by assuming a flagpole forum could never exist and by treating the entire issue as government speech, bypassing traditional public‑forum analysis.
What happened at oral argument
Oral argument before the Supreme Court took place at 10:00 a.m.
Justice Thomas asked whether the City’s designation of the flagpole as a limited or designated public forum was essential for the petitioners’ success.
According to Justice Kavanaugh, justice Kavanaugh questioned whether the City could allow patriotic flags but not those deemed anti‑American, such as an al Qaeda flag.
According to Justice Breyer, justice Breyer raised a procedural concern about the record’s emptiness.
Justice Kagan asked whether the lack of city control meant the forum was not government speech.
According to Justice Sotomayor, justice Sotomayor inquired whether the nature of the forum was relevant to the case.
Justice Barrett asked whether a loss would cause the City to restructure its program to regain control over religious flags.
According to Justice Gorsuch, justice Gorsuch questioned whether the flagpole was in fact a public forum open to all comers.
- [1] a0e165c160fff990b49b-r1-ecf79e111aaf5fa8.pdf, p. 2
- [2] a0e165c160fff990b49b-r1-ecf79e111aaf5fa8.pdf, p. 7
- [3] a0e165c160fff990b49b-r1-ecf79e111aaf5fa8.pdf, p. 11
- [4] a0e165c160fff990b49b-r1-ecf79e111aaf5fa8.pdf, p. 24
- [5] a0e165c160fff990b49b-r1-ecf79e111aaf5fa8.pdf, p. 30
- [6] a0e165c160fff990b49b-r1-ecf79e111aaf5fa8.pdf, p. 45
- [7] a0e165c160fff990b49b-r1-ecf79e111aaf5fa8.pdf, p. 69
- [8] a0e165c160fff990b49b-r1-ecf79e111aaf5fa8.pdf, p. 67
What the Court decided
The Court held that the City’s refusal to allow the petitioners to raise a religious flag discriminated based on religious viewpoint and violated the Free Speech Clause.
Why it matters
Terms to know
No glossary terms are available for this guide.
Primary sources
Read the source materials on the official site or open the immutable repository copy used for this guide.
- 1fa6a3263a316c7cb9a2-r1-15e99cd593a6011d.pdfopinion
- a0e165c160fff990b49b-r1-ecf79e111aaf5fa8.pdforal argument transcript
Guide generated September 28, 2026. Automated validation accepted this version.