One effective remedy that federal law provides to successful claimants battling government entities that violate their civil rights is to level the litigation playing field by allowing victorious claimants to have their attorney’s fees paid by the government. It allows individuals and organizations to pursue righteous claims against government entities, which typically enjoy superior resources and finances, without fear of going bankrupt in the process.

That’s the impetus behind a $2.125 million settlement and payment of attorney’s fees to Harold Shurtleff, the plaintiff in a recent legal battle with the city government of Boston, Massachusetts, that went all the way to the U.S. Supreme Court.

Shurtleff, who runs the civic organization known as Camp Constitution, asked Boston officials in 2017 for permission to hold a “Constitution Day” event in a city-owned plaza, and for permission to raise the Christian flag on one of the city’s flagpoles during the event. The city, which had allowed other civic organizations to hold events and raise various flags at those events for the previous 12 years, denied Shurtleff’s request for the sole reason that the flag he wanted to raise was the Christian flag.

Shurtleff, with help from attorneys from Liberty Counsel, sued the city, claiming his First Amendment rights were violated by the city’s refusal. The city argued that the flag-raising program was “government speech,” not the private speech of the civic organization using the plaza and, therefore, the city had the discretion to grant or deny requests for flags as it saw fit.

Two lower courts agreed with Boston, denying Shurtleff’s claims. The nine justices at the Supreme Court, however, saw things very differently. The unanimous high court opinion handed down in May, written by Justice Stephen Breyer, rejected the city’s “government speech” argument, calling the denial of the Christian flag impermissible “viewpoint discrimination.”

“Here, Boston concedes that it denied Shurtleff ’s request solely because the Christian flag he asked to raise ‘promot[ed] a specific religion,’” Breyer wrote. “Under our precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause.”

Once the high court spoke, it was up to the lower courts to issue the necessary injunctions and deal with an award of attorney’s fees in Shurtleff’s favor. Shurtleff and the city then reached an agreement on attorney’s fees and stipulated to a dismissal of the case.

Shurtleff’s attorneys celebrated the win in a press release.

Liberty Counsel Founder and Chairman Mat Staver said, “We are pleased that after five years of litigation and a unanimous victory at the U.S. Supreme Court, we joined with Hal Shurtleff to finally let freedom fly in Boston, the Cradle of Liberty.

“The Christian flag case has established significant precedent, including the overturning of the 1971 ‘Lemon Test,’ which Justice Scalia once described as a ‘ghoul in a late-night horror movie.’ The case of Shurtleff v. City of Boston finally buried this ghoul that haunted the First Amendment for 51 years.”

Religious messages by private individuals on government property have sometimes been misconstrued and prohibited by government entities in various places across the nation because of a fundamental misunderstanding of the interplay of the First Amendment’s religion clauses – “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…” – and the free speech guarantee found in the same Amendment.

When the government allows the public to speak private messages on government property – e.g., a speech on a public street corner or in a park – it cannot discriminate based on the viewpoint of the speaker. That’s “Constitutional Law 101,” as they say in law school.

But when a government entity gets worried it will commit an “establishment of religion” violation by permitting religious speech that might be attributed to the government, and then prohibits such speech – like denying the use of a Christian flag – it sometimes goes too far and commits a free speech violation.

That’s why, once Boston lost its argument that its flag-raising program was “government speech,” not private speech, it was destined to lose the case. And to pay Harold Shurtleff’s attorney’s fees.

The Supreme Court’s decision in Shurtleff’s case and subsequent payment of attorney’s fees will send a strong message to government officials everywhere: Think twice before you discriminate against religious speech. It could cost you.


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Photo from Getty Images.