Thinking Citizen Blog — Is a Flagpole More Like a License Plate or a Trademark?
Thinking Citizen Blog — Saturday is Justice, Freedom, Law, and Values Day
Today’s Topic: Is a Flagpole More Like a License Plate or a Trademark?
Is a Winnebago more like a house or a car? That is for purposes of “search and seizure”? The practice of the law is about one side arguing that a Winnebago is more like car and the other arguing that it’s more like a house. A similar distinction came up recently in an article about a controversy related to a flagpole outside Boston City Hall which has been customarily reserved for use by a range of third parties. One side takes the view that it would be a violation of the principle of the separation of church and state for the city to allow the hoisting of a flag with a cross on it. The other side argues it would be a violation of the principle of the free speech to deny a third party such a right because they are religious. Where would you stand on this issue? Where do you think the Biden administration stands? Excerpts below are from an op-ed piece in the New York Times by Adam Liptak. Experts — please chime in. Correct, elaborate, elucidate.
BACKGROUND — The Three Flags, Gay Pride, One Rejection out of 285
1. “There are three flagpoles in front of Boston’s City Hall. One flies the American flag, and the second that of Massachusetts. What appears on the third is at issue in a case the Supreme Court will hear in January.”
2. “That flagpole, which ordinarily flies the flag of Boston, is occasionally made available to groups seeking to celebrate their backgrounds or to promote causes like gay pride.”
3. “In a 12 -year period, the city approved 284 requests for the third flag.”
NB: “It rejected only one, from Camp Constitution, which says it seeks “to enhance understanding of our Judeo-Chirstian moral heritage.” The group’s application said it sought to raise a “Christian flag” for one hour at any event that would include “short speeches by some local clergy focusing on Boston’s history.” The flag bore the Latin cross.”
THE CITY’S REJECTION, THE SUIT, THE APPEALS COURT DECISION
1. “The city rejected the group’s request saying that flying the flag would amount to government endorsement of religion.”
2. “The group sued, arguing that the city’s decision violated its right to free speech.”
3. “A unanimous three judge panel of the United States Court of Appeals for the First Circuit ruled for the City.”
NB: The ACLU and the Biden administration are now urging the Supreme Court to reverse the Appeals Court decision. “The city can not generally open its flagpole to flags from private civic and social groups while excluding otherwise similar groups with religious views.” (Biden administration brief)
TWO CONFLICTING SUPREME COURT PRECEDENTS: THE LICENSE PLATE AND THE TRADEMARK
1. “In 2015, in Walker v Sons of Confederate Veterans, the Supreme Court ruled that Texas could refuse to allow specialty license plates bearing the Confederate flag because the plates were government speech and therefore immune from First Amendment scrutiny. The vote was 5 to 4.”
2. “More recently, in Matal v Tam in 2017, the Supreme Court unanimously ruled that the government can not refuse to register trademarks for potentially offensive names. “It is far fetched to suggest that the content of a registered mark is government speech,” Justice Alito wrote for the court. “If the federal registration of a trademark makes the mark government speech, the federal government is babbling prodigiously and incoherently. It is saying many unseemly things.”
NB: “If the flag in the Boston case is like a license plate, Camp Constitution should lose. If it is like a trademark, it should win. But it cannot hurt, before the current Supreme Court, that the message it seeks to convey is religious.”
1. The Camp Constitution flag was scheduled to be flown on September 17th, Constitution Day.
2. So: license plate, trademark, or is there a better analogy?
3. Is there a clearer precedent?
A Jewish legal advocate and a Baptist minister make a case in support of the City of Boston:
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