United States Court of Appeals For the First Circuit

No. 20-1158

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.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Lynch, Selya, and Lipez, Circuit Judges.

Mathew D. Staver, with whom Horatio G. Mihet, Roger K. Gannam, Daniel J. Schmid, and Liberty Counsel were on brief, for appellants. Robert Arcangeli, Assistant Corporation Counsel, with whom Eugene L. O'Flaherty, Corporation Counsel, was on brief, for appellees. Alex J. Luchenitser, Richard B. Katskee, Patrick Grubel, Steven M. Freeman, David L. Barkey, Amy E. Feinman, Cindy Nesbit, and Monica Miller on brief for Americans United for Separation of Church and State; Anti-Defamation League; American Humanist Association; Central Conference of American Rabbis; Covenant Network of Presbyterians; Global Justice Institute; Hindu American Foundation; Maine Conference, United Church of Christ; Men of Reform Judaism; Methodist Federation For Social Action; National Council of Jewish Women; New Hampshire Conference, United Church of Christ; People for the American Way Foundation; Reconstructionist Rabbinical Association; The Sikh Coalition; Southern New England Conference, United Church of Christ; Union for Reform Judaism; and Women of Reform Judaism, amici curiae.

January 22, 2021 SELYA, Circuit Judge. This case comes before us for a

second time, albeit in a different posture. The issues are much

the same, though presented in sharper focus on a better-developed

record. As such, they conjure up what might be described, in a

turn of phrase popularly attributed to Lawrence "Yogi" Berra, as

a sense of "déjà vu all over again."1

The case has its genesis in a suit filed by plaintiffs

Harold Shurtleff and Camp Constitution in which they complained

that the defendants — the City of Boston and Gregory T. Rooney, in

his official capacity as Commissioner of Boston's Property

Management Department (collectively, the City) — trampled their

constitutional rights by refusing to fly a pennant, openly

acknowledged by the plaintiffs to be a "Christian Flag," from a

flagpole at Boston City Hall. The district court granted summary

judgment in favor of the City. See Shurtleff v. City of Bos.

(Shurtleff III), No. 18-CV-11417,

, at *6 (D. Mass.

Feb. 4, 2020). Concluding, as we do, that the government speech

doctrine bars the maintenance of the plaintiffs' free speech claims

and that their remaining claims under the Establishment Clause and

the Equal Protection Clause lack bite, we affirm.

1We say "popularly attributed to" because at least one scholar has declared that "although this [phrase] is commonly cited as a 'Berra-ism,' Yogi Berra denies ever saying it." Ralph Keyes, "Nice Guys Finish Seventh": False Phrases, Spurious Sayings, and Familiar Misquotations 152 (1992).

- 3 - I. BACKGROUND

We begin by rehearsing the relevant facts (most of which

are undisputed, though the inferences from them are not) and the

travel of the case. The City owns and manages three flagpoles in

an area in front of City Hall referred to as City Hall Plaza. The

three flagpoles are each approximately eighty-three feet tall and

are prominently located in front of the entrance to City Hall —

the seat of Boston's municipal government. Ordinarily, the City

raises the United States flag and the POW/MIA flag on one flagpole,

the Commonwealth of Massachusetts flag on the second flagpole, and

its own flag on the third flagpole. Upon request and after

approval, though, the City will from time to time replace its flag

with another flag for a limited period of time.

Such requests are typically made by a third party in

connection with an event taking place within the immediate area of

the flagpoles. In welcoming these third-party banners, the City's

website proclaims that the City seeks to "commemorate flags from

many countries and communities at Boston City Hall Plaza during

the year" (emphasis in original). The opportunity to display these

kinds of flags was created in order to establish "an environment

in the City where everyone feels included, . . . to raise awareness

in Greater Boston and beyond about the many countries and cultures

around the world[, and] to foster diversity and build and

strengthen connections among Boston's many communities."

- 4 - In addition to these flag-raisings, the City also allows

organizations to hold events in several locations near City Hall.

Endeavoring to educate those who may be interested in hosting such

an event, the City has published event guidelines on its website.

The guidelines make clear that people need the City's permission

to hold events at City-owned properties and direct interested

parties to an application form.

The application form (which is available either online

or as a document) allows applicants to designate the location at

which they wish to hold an event, listing six options: Faneuil

Hall, Sam Adams Park, City Hall Plaza, the City Hall Lobby, the

City Hall Flag Poles, and the North Stage. Although those

interested in hosting a flag-raising event must submit an

application form, neither the electronic nor the written version

of the form mentions the option of raising a flag on any of the

City's three flagpoles.

Once the City receives an application, its policy and

practice are to perform an initial review. The purpose of this

review is in part to ensure that there are no conflicting events

occupying the same space, that the application is complete and

accurately describes the proposed event, that the event would not

endanger the public, and that other administrative requirements

have been satisfied.

- 5 - The obligation to review and act upon applications falls

into Rooney's domain. Before a flag-raising event is approved,

Rooney must determine that the City's decision to raise a flag is

consistent with the City's message, policies, and practices. Each

applicant submits a short description of the flag that it wishes

to hoist (e.g., "Portuguese Flag"), and it is Rooney's invariable

practice to act upon the flag-raising request without seeing the

actual flag. The record makes manifest that Rooney has never

sought to look at a flag before approving an application. If

Rooney concludes that the event meets the City's standards, he

then approves the flag-raising event. And if a flag-raising event

is disapproved, the City offers the applicant the opportunity to

hold the proposed event, without the flag-raising, either at City

Hall Plaza or at some other location.

In a twelve-year period (from June 2005 through June

2017), the City approved 284 flag-raising events that implicated

its third flagpole. These events were in connection with ethnic

and other cultural celebrations, the arrival of dignitaries from

other countries, the commemoration of historic events in other

countries, and the celebration of certain causes (such as "gay

pride"). The City also has raised on its third flagpole the flags

of other countries, including Albania, Brazil, Ethiopia, Italy,

Panama, Peru, Portugal, Mexico, as well as China, Cuba, and Turkey.

So, too, it has raised the flags of Puerto Rico and private

- 6 - organizations, such as the Chinese Progressive Association,

National Juneteenth Observance Foundation, Bunker Hill

Association, and Boston Pride. Broadly speaking, we group these

approvals as approvals for "the flags of countries, civic

organizations, or secular causes."

Against this backdrop, we introduce the plaintiffs.

Camp Constitution is an all-volunteer association that seeks "to

enhance understanding of the country's Judeo-Christian moral

heritage." Shurtleff is the founder and director of Camp

Constitution. In July of 2017, the plaintiffs emailed Lisa Menino,

the City's senior special events official, seeking leave to fly

their own flag over City Hall Plaza. In their words, the proposed

event would "raise the Christian Flag" and feature "short speeches

by some local clergy focusing on Boston's history."

At the time of this request, the City had no written

policy for handling flag-raising applications. What is more,

Rooney had never before denied a flag-raising application. On

this occasion, though, the plaintiffs' request "concerned" Rooney

because he considered it to be the first request he had received

related to a religious flag.

Of course, some of the flags that the City had raised

contained religious imagery. The Portuguese flag, for instance,

contains "dots inside blue shields represent[ing] the five wounds

of Christ when crucified" and "thirty dots that represent[] [sic]

- 7 - the coins Judas received for having betrayed Christ." As another

example, the Turkish flag situates the star and crescent of the

Islamic Ottoman Empire in white against a red background. Indeed,

the City's own flag includes a Latin inscription, which translates

as "God be with us as he was with our fathers." None of the flags

that the City had previously approved, however, came with a

religious description.

Mulling the plaintiffs' application, Rooney conducted a

review of past flag-raising requests and determined that the City

had no past practice of flying a religious flag. He proceeded to

deny the plaintiffs' flag-raising request. In response to the

plaintiffs' inquiry into the reason for the denial, Rooney

responded that the City's policy was to refrain respectfully from

flying non-secular third-party flags in accordance with the First

Amendment's prohibition of government establishment of religion.

Rooney offered to fly some non-religious flag instead. The

plaintiffs spurned this offer.

In September of 2017, Shurtleff once again requested

permission for a flag-raising event at City Hall Plaza. This time,

he submitted a flag-raising application that titled the event as

"Camp Constitution Christian Flag Raising." The event, which was

intended to "[c]elebrate and recognize the contributions Boston's

Christian community has made to our city's cultural diversity,

intellectual capital and economic growth," would feature three

- 8 - speakers: Reverend Steve Craft (who would speak on the need for

racial reconciliation), Pastor William Levi (who would speak on

"the blessings of religious freedom in the U.S."), and Shurtleff

himself (who would present a Boston-centric historical overview).

Believing that its response to the plaintiffs' first flag-raising

request was self-explanatory, the City chose not to respond

further.

About a year later, the City embodied its past policy

and practice in a written Flag Raising Policy. This policy

includes seven flag raising rules, the first of which forbids the

"display [of] flags deemed to be inappropriate or offensive in

nature or those supporting discrimination, prejudice, or religious

movements."

On July 6, 2018 — roughly three months before the City

adopted its written Flag Raising Policy — the plaintiffs sued the

City in the federal district court, seeking injunctive relief, a

declaratory judgment, and money damages. Three days later, they

moved for a preliminary injunction. The district court denied the

plaintiffs' motion, see Shurtleff v. City of Bos. (Shurtleff I),

(D. Mass. 2018), and we affirmed, see Shurtleff

v. City of Bos. (Shurtleff II),

(1st Cir. 2019). Back

in the district court, the parties conducted discovery and

eventually cross-moved for summary judgment. The district court

heard arguments and, in a comprehensive rescript, granted the

- 9 - City's motion and denied the plaintiffs' cross-motion. See

Shurtleff III,

, at *6. This timely appeal followed.

II. ANALYSIS

The plaintiffs assign error to the district court’s

grant of summary judgment. Specifically, they challenge the

court's holding that the City's display of third-party flags on

the City Hall flagpole constitutes government speech, not subject

to most First Amendment restrictions. In their view, the City's

flagpoles comprise a public forum, thus consigning the City's

content-based restriction of plaintiffs' speech to strict scrutiny

(which they say the restriction cannot pass). Relatedly, they

contend that the City's permitting process for the raising of

third-party flags vests in government officials unbridled

discretion to approve and deny protected speech and, thus, imposes

an unconstitutional prior restraint on speech. Finally, they

contend that the City's refusal to fly a religious flag

transgresses both the Establishment Clause and the Equal

Protection Clause.

The City urges us to reject each and all of these

contentions and simply to affirm the district court's rulings. It

is joined by a group of amici, who have filed a helpful brief in

support of the judgment below.

We afford de novo review to a district court's entry of

summary judgment. See Dávila v. Corporación De P.R. Para La

- 10 - Difusión Pública,

(1st Cir. 2007). In conducting

this tamisage, we assess the facts in the light most flattering to

the nonmovants (here, the plaintiffs) and draw all reasonable

inferences to their behoof. See

Summary judgment is

appropriate only when the record demonstrates that there is no

genuine issue as to any material fact and confirms that the movants

are entitled to judgment as a matter of law. See Morelli v.

Webster,

(1st Cir. 2009). That cross-motions for

summary judgment were simultaneously adjudicated by the district

court does not alter the applicable standards of review. See

Blackie v. Maine,

(1st Cir. 1996).

With these parameters in place, we turn to the

plaintiffs' asseverational array, taking their arguments

sequentially. At the outset, though, we pause to say a few words

about the relevance of our earlier opinion (Shurtleff II).

A. Our Earlier Opinion.

We think it useful to center our Shurtleff II opinion

within the preliminary injunction framework. That framework

anticipates a four-part inquiry, see Corp. Techs., Inc. v. Harnett,

(1st Cir. 2013); Ross-Simons of Warwick, Inc. v.

Baccarat, Inc.,

(1st Cir. 1996), requiring a

district court to evaluate "the movant's likelihood of success on

the merits; whether and to what extent the movant will suffer

irreparable harm in the absence of preliminary injunctive relief;

- 11 - the balance of relative hardships, that is, the hardship to the

nonmovant if enjoined as opposed to the hardship to the movant if

no injunction issues; and the effect, if any, that either a

preliminary injunction or the absence of one will have on the

public interest," Ryan v. U.S. Immig. & Customs Enf't,

,

18 (1st Cir. 2020). Among these four factors, "[t]he movant's

likelihood of success on the merits weighs most heavily in the

preliminary injunction calculus."

As we have explained, "[i]f

the movant 'cannot demonstrate that he is likely to succeed in his

quest, the remaining factors become matters of idle curiosity.'"

(quoting New Comm Wireless Servs., Inc. v. SprintCom, Inc.,

(1st Cir. 2002)).

In Shurtleff I, the district court denied the

plaintiffs' threshold motion for a preliminary injunction. See

377 F. Supp. 3d at 79. The court determined, among other things,

that the plaintiffs had not shown a likelihood of succeeding on

the merits of their claims. See id. at 78. On appeal, we affirmed

this determination, concluding that the district court's appraisal

was not an abuse of discretion. See Shurtleff II,

.

The fact that Shurtleff II upheld the district court's

determination that the plaintiffs were unlikely to prevail on the

same claims that they now pursue is not determinative of either

the issues that were before the district court in Shurtleff III or

- 12 - the issues that confront us here. There is, after all, a salient

distinction between a decision granting or denying a preliminary

injunction and a final decision on the merits (such as the entry

of summary judgment). At the preliminary injunction stage, "an

inquiring court need not conclusively determine the merits of the

movant's claim; it is enough for the court simply to evaluate the

likelihood vel non that the movant ultimately will prevail on the

merits." Ryan, 974 F.3d at 18.

Here, however, the appealed decision is one on the

merits. In Shurtleff III, the district court had to determine

whether the City had shown that there were no genuine issues of

material fact and, if so, that it was entitled to judgment as a

matter of law. See Morelli,

. Moreover, the court

had to make this determination on a record that was considerably

better developed than the record available to it at the preliminary

injunction stage. See Univ. of Tex. v. Camenisch,

(1981). Thus, our decision in Shurtleff II, which was at

most a validation of the district court's prediction of probable

outcomes, see Jimenez Fuentes v. Torres Gaztambide,

(1st Cir. 1986), could inform the district court's subsequent

summary judgment decision but could not control it, see Univ. of

Tex.,

.

- 13 - Shurtleff II relates to the current appeal in the same

way. That decision, therefore, does not determine the outcome of

this merits appeal. See

We proceed accordingly.

B. The Free Speech Claims.

The plaintiffs' most loudly bruited argument is that the

Free Speech Clause of the First Amendment does not permit the City

to display a plethora of third-party flags in front of City Hall

while refusing to display the Christian Flag proffered by the

plaintiffs. The district court determined that this group of

claims was foreclosed by the government speech doctrine, see

Shurtleff III,

, at *5, and so do we.

The proposition that the plaintiffs' free speech claims

rise or fall on the classification of the challenged speech is

uncontroversial. Even though the First Amendment restricts

government regulation of private speech in government-designated

public forums, such restrictions do not apply to government speech.

See Pleasant Grove City v. Summum,

(2009) ("The

Free Speech Clause restricts government regulation of private

speech; it does not regulate government speech."); Walker v. Tex.

Div., Sons of Confederate Veterans, Inc.,

(2015)

("[When] the State is speaking on its own behalf, the First

Amendment strictures that attend the various types of government-

established forums do not apply."). Here, the classification of

the speech in question is pivotal — but before attempting to

- 14 - resolve this classification inquiry, we map the relevant contours

of the government speech doctrine.

Two cases chiefly inform the configuration of this map.

In Summum, the Supreme Court considered whether "the Free Speech

Clause of the First Amendment entitles a private group to insist

that a municipality permit it to place a permanent monument in a

city park in which other donated monuments were previously

erected."

. The respondent, a religious

organization, sought leave from the city to erect a monument that

would contain "the Seven Aphorisms of SUMMUM," which the respondent

said would be similar "in size and nature to the Ten Commandments

monument" then in place at the city park.

. The city

denied the respondent's request, and the respondent sued (alleging

an abridgment of the right to free speech). See

.

The Court upheld the city's decision, ruling that because the

display of "a permanent monument in a public park . . . is best

viewed as a form of government speech," such a display is "not

subject to scrutiny under the Free Speech Clause."

.

In determining that the placement of such a monument in

a city-owned park constituted government speech, the Summum Court

relied primarily on three factors. First, the Court focused on

the history of governmental use of monuments, explaining that

"[g]overnments have long used monuments to speak to the public"

and that "[w]hen a government entity arranges for the construction

- 15 - of a monument, it does so because it wishes to convey some thought

or instill some feeling in those who see the structure."

. Second, the Court considered whether the message conveyed by

the monuments would be ascribed to the government.

.

The Court concluded that, in the city-park context, "there is

little chance" that observers will fail to identify the government

as the speaker.

Third, and finally, the Court considered the

fact that the municipality "effectively controlled" the messages

sent by the monuments because it exercised "final approval

authority over their selection."

. Giving weight to

these factors, the Court determined that the erection of privately

donated monuments in a city park constituted government speech.

See

.

A few years later, the Court revisited the government

speech doctrine. In Walker, the issue was whether the rejection

of a "specialty license plate design featuring a Confederate battle

flag" by the Texas Department of Motor Vehicles "violated the

Constitution's free speech guarantees."

.

Concluding that specialty license plates convey government speech,

the Court held that Texas was "entitled to refuse to issue plates"

that featured the proffered design.

. In reaching

this conclusion, the Court again employed the three-factor test

developed in Summum.

- 16 - The Walker Court began by examining the history of the

use of the medium by the government, then inquired into how closely

the public identified the medium with the government, and went on

to assay the degree of control the government maintained over the

message conveyed. See

. In traveling down this path,

the Court first found that license plates "long have communicated

messages from the States."

. Next, it found that the

public reasonably interprets license plates as conveying a message

on the state's behalf both because the plates bear "the name

'TEXAS' in large letters" and because the state mandates vehicle

owners to display the plate, owns all license plate designs, and

dictates the manner in which vehicle owners may dispose of the

plates.

. Finally, the Court found that the state

"effectively controlled" the messages conveyed on the license

plates because it retained "final approval authority."

. These three factors, taken together, led inexorably to the

conclusion that the challenged speech constituted government

speech. See

The three-part Summum/Walker test is controlling here.

Mindful that the Court has indicated that Walker "likely marks the

outer bounds of the government-speech doctrine," Matal v. Tam,

(2017), we turn to whether the speech at issue

falls within those bounds.

- 17 - We start by looking at the historical use of flags by

the government. The parties do not gainsay that governments have

used flags throughout history to communicate messages and ideas.

See, e.g., W. Va. State Bd. of Educ. v. Barnette,

(1943) ("The use of an emblem or flag to symbolize some system,

idea, institution, or personality, is a short cut from mind to

mind."); Griffin v. Sec'y of Veterans Affs.,

(Fed. Cir. 2002) ("We have no doubt that the government engages in

speech when it flies its own flags over a national cemetery, and

that its choice of which flags to fly may favor one viewpoint over

another."). Flags themselves have the capacity to communicate

messages pertaining to, say, a government's identity, values, or

military strength. See Shurtleff II,

n.4. Cf.

Summum,

("Governments have long used monuments

. . . to remind their subjects of their authority and power[,]

. . . to commemorate military victories and sacrifices and other

events of civic importance [or] to convey some thought or instill

some feeling in those who see the structure."). That a government

flies a flag as a "symbolic act" and signal of a greater message

to the public is indisputable. See Shurtleff II,

.

With respect to the issue of whether an observer would

attribute the message of a third-party flag on the City's third

flagpole to the City, we found it likely the last time around that

such an attribution would take place. See

The record has

- 18 - since evolved, and these evolutionary changes bolster our earlier

conclusion. As we previously noted, an observer would arrive in

front of City Hall, "the entrance to Boston's seat of government."

. She would then see a city employee replace the city

flag with a third-party flag and turn the crank until the third-

party flag joins the United States flag and the Massachusetts flag,

both "powerful governmental symbols," in the sky (eighty-three

feet above the ground).

A faraway observer (one without a

view of the Plaza) would see those three flags waiving in unison,

side-by-side, from matching flagpoles.

That the third-party flag is part of a broader display

cannot be understated. As the Summum Court explained, the manner

in which speech is presented, including the incorporation of other

monuments in the vicinity, changes the message communicated. See

. Here, the three flags are meant to be — and in

fact are — viewed together. The sky-high City Hall display of

three flags flying in close proximity communicates the symbolic

unity of the three flags. It therefore strains credulity to

believe that an observer would partition such a coordinated three-

flag display (or a four-flag display if one counts the POW/MIA

flag) into a series of separate yet simultaneous messages (two

that the government endorses and another as to which the government

disclaims any relation). Cf. Summum,

("It certainly

is not common for property owners to open up their property for

- 19 - the installation of permanent monuments that convey a message with

which they do not wish to be associated."). Although the

plaintiffs might perhaps make the case that a lone Christian Flag,

nowhere near City Hall, would be seen as devoid of any connection

to a government entity, a City Hall display that places such a

flag next to the flag of the United States and the flag of the

Commonwealth of Massachusetts communicates a far different message

to an observer: that the City flies all three flags.

The plaintiffs demur, insisting that an observer, in

these circumstances, would not interpret a third-party flag as a

message from the City. This demurrer is premised on the notion

that the question of whether expression is likely to be viewed as

government speech must be answered from the viewpoint of a

"reasonable and informed" observer. Building to a crescendo, the

plaintiffs posit that a reasonable and informed observer not only

would see the flag, but also would take note of the intricacies of

the administrative process leading up to its display. Stripped of

rhetorical flourishes, the plaintiffs ask us to consider the

perspective of an observer who — in their words — knows:

(1) that the City's open invitation policy and

practice "seeks to accommodate all

applications seeking to take advantage of the

City of Boston's public forums" . . .; (2)

that the City permits private organizations

- 20 - temporarily to raise their flags . . . as a

"substitute" for the government's flag; (3)

that the City has approved at least 284 flag

raising events . . .; (4) that during the year

preceding Camp Constitution's application the

City approved an average of over three flag

raisings per month; (5) that prior to Camp

Constitution's application, flag raising

denials were exceedingly rare, and that Rooney

had never denied a flag raising request; (6)

that the City will allow essentially any event

to take place on City Hall Plaza; and (7) that

the City does not even review the content of

the substitute flags . . . (emphasis in

original).

Relatedly, the plaintiffs insist that the messages of the third-

party flags cannot be attributed to the City because "Rooney swore

he had no knowledge of anyone's ever believing the City has

endorsed or adopted the message of a private organization that was

allowed access to the flag raising forum." An observer armed with

this information, the plaintiffs say, would not attribute the

third-party-flag speech to the City.

The plaintiffs' conception of a "reasonable and

informed" observer is not plucked from thin air. Justice Souter,

- 21 - concurring in Summum, advocated for a standard based on the

reaction of a "reasonable and fully informed observer."

(Souter, J., concurring). The Court did not explicitly

adopt this standard, but has nonetheless focused on the physical

attributes of the speech and general information about the locus

at which the speech takes place. In Summum, for example, the Court

considered what "persons who observe" such monuments see,

, and added that most people know that parks are government

property,

("Public parks are often closely identified

in the public mind with the government unit that owns the land.").

So, too, the Walker Court considered the physical attributes of

the speech visible to "persons who observe" license plates,

("The governmental nature of the plates is clear from

their faces . . . ."), as well as widely available information

about license plates,

("[T]he State requires Texas vehicle

owners to display license plates, and every Texas license plate is

issued by the State . . . . Texas also owns the designs on its

license plates . . . . And Texas dictates the manner in which

drivers may dispose of unused plates."). The City's treatment of

third-party flags satisfies the standard that the Supreme Court

has set for attribution: an observer not only would see the third-

party flag flying with two government flags in front of a building

labeled "Boston City Hall" but also would reason that the building

- 22 - is a government building and that the imposing flagpoles located

on that property are owned and dressed by the City.2

The plaintiffs have another string to their bow. They

argue that the Summum/Walker framework is inapplicable because the

third-party flags that the City flies lack the permanence of the

monuments in Summum. We rejected this same argument in Shurtleff

II,

, and the plaintiffs have advanced no compelling

reason for us to revisit the matter. To our way of thinking, the

decisive datum is that the Walker Court explicitly disavowed any

suggestion that permanence is a prerequisite for finding

government speech. See

.

We turn next to the question of whether the City

maintains control over the messages conveyed by the third-party

2 We add, moreover, that even if we were prepared to adopt a "reasonable and informed observer" standard, such a standard would be satisfied here. See Shurtleff II,

n.5. It is the manner and circumstances in which a third-party flag is displayed, together with the logical inferences that a reasonable and informed observer would likely draw based on available information, that lead to a conclusion that the third-party-flag speech can be attributed to the government. Relatedly, Justice Souter's concurrence in Summum warned primarily against the deployment of categorical rules in determining what constitutes government speech. Summum,

(Souter, J., concurring). Contrary to the plaintiffs' formulation of the "reasonable and informed observer" standard, neither Justice Souter's concurrence nor any other cited opinion has suggested that such an observer would necessarily know things like the City's regulations for flag-raising or the decisionmaking trends of a specific government employee. Absent any vestige of precedential support, we decline the plaintiffs' invitation to adopt and apply a newly minted standard.

- 23 - flags. The City has instituted procedures to ensure both that it

is aware of all flags flown and that such flags display approvable

messages. It is undisputed that "[i]nterested persons and

organizations must apply to the City for a permit before they can

raise a flag on this flagpole," and that the flag-raising

guidelines expressly require the City's permission to fly a third-

party flag. Shurtleff II,

. And in order for a

flag-raising request to secure approval, Rooney must review the

request to determine whether the proposed flag-raising is

consistent with the City's message, policies, and practices. Cf.

Summum,

(finding government speech when

"[g]overnment decisionmakers select the monuments that portray

what they view as appropriate for the place in question, taking

into account such content-based factors as esthetics, history, and

local culture"); Walker,

(finding control when

"[t]he Board must approve every specialty plate design proposal

before the design can appear on a Texas plate").

What is more, the City limits physical access to the

flagpole: the flagpole is restricted government property, and the

City restricts access to it by providing only parties whose

requests are approved with a hand crank. All in all, the decision

to fly a flag falls squarely on the City, and not on any other

entity or person. This final approval authority means that when

a third-party flag flies over City Hall, it flies only because the

- 24 - City chose to fly it. And in reserving this final approval

authority, the City "has 'effectively controlled' the messages

conveyed" in the flag display.

(quoting Johanns v. Livestock

Mktg. Ass'n,

(2005)).

The plaintiffs argue that the type of government

practices that led the Court in Summum and Walker to find

government control are not present here. They note, for example,

that the Summum Court observed that the government "took ownership

of [the] monument" and that "[a]ll rights previously possessed by

the monument's donor [were] relinquished."

.

They also note that, in Walker, the state owned the designs that

were on all specialty license plates, issued all state plates, and

dictated how a driver may dispose of a plate.

.

Here, by contrast, the City does not require a private organization

that seeks to raise a flag to surrender ownership of that flag,

nor does it require that a flag bear any particular design or logo.

This argument lacks force. The government's ownership

of a monument or a design are relevant to the "attribution" prong

of the Summum/Walker test — not to the "control" prong. See

Walker,

; Summum,

. The latter

prong instead turns on whether the government "effectively

control[s]" the message conveyed through selection. See Summum,

(quoting Johanns,

). The City's

- 25 - final approval authority over all third-party flags evinces choice

and selection and, thus, suffices to show effective control.

Struggling to undermine the finding of control, the

plaintiffs highlight three pieces of evidence uncovered during

pretrial discovery (and not available at the preliminary

injunction stage): first, until the plaintiffs came along, the

City had not previously denied a flag-raising request; second,

Rooney's customary practice was not to ask to see a proposed flag

before approving such a request; and third, although the

preliminary injunction record previously noted only fifteen

instances of flag-raisings, the expanded record reveals that the

City had approved 284 requests. The plaintiffs submit that these

freshly unearthed facts demonstrate that the City did not exercise

meaningful control over the message conveyed by third-party flags.

We do not agree.

We find the rate of rejection unpersuasive because the

exercise of the authority to reject is necessarily case-specific

and limited by the kinds of requests the City receives. Since the

City had never rejected a request, the flag-raisings in the record

are, in effect, a record of the requests received. Every request

has been for the flag of a country, civic organization, or secular

cause. That potential applicants have successfully self-selected

and offered a narrow set of acceptable secular designs cannot be

evidence that the City is open to fly any flag.

- 26 - The limited kinds of unique flags and the repeated

requests to fly the same flags also help to explain Rooney's

practice. Some of the flags were no doubt familiar to him and, at

any rate, a request to fly a flag includes a short description of

the flag. Because Rooney recognizes the names of sovereign

nations, because the City had seen most, if not all, of these flags

in previous years, and because in twelve years no person had

requested to fly anything that was not the flag of a country, civic

organization, or secular cause, a short description of each

proposed flag was sufficient for Rooney's purposes. But once

Rooney received a request for a flag he did not recognize as

falling within an acceptable secular category — the Christian Flag

— he demanded that he see it.

The greater number of flag-raisings is likewise

insufficient to ground a finding that the City does not control

the flagpole. The Walker Court was clear that the number of flags

— or messages — is not dispositive.

. Here, the

Walker's Court logic applies because the number of flags approved

by the City is not evidence of universal access to the flagpole.

After all, the group of third-party flags raised over City Hall

during the twelve-year period is not a random assortment. Each

flag represents a country, civic organization, or secular cause.

Instead of evincing a lack of control, the greater number of flag-

raisings reveals a pattern that supports the City's claim that it

- 27 - approves only flags that it deems "consistent with the City's

messages, policies, and practices."

In this context, the Supreme Court has not laid out an

elaborate protocol for finding effective control. Broadly

speaking, it is the City's "select[ion] [of] those [flags] that it

wants to display for the purpose of presenting the image of the

City that it wishes to project" that establishes City control over

the message conveyed. Summum,

. In the case at

hand, Rooney's approval practices have not been shown to be a

rubber stamp. There is nothing remarkable about the fact that

some flag descriptions may trigger further review, while others do

not. Wherever the line falls, that a line exists is evidence of

"selective receptivity." See

. That selectivity exists

here, and it is a selectivity born out of a concern for the City's

image. The record, taken as a whole, plainly shows a city

conscious of the message that it flies on the third flagpole and

an accompanying selectivity to tailor that message to the City's

desired image. See

Accordingly, each of the three

Summum/Walker factors supports the conclusion that the City

engages in government speech when it decides which flags to display

in front of City Hall.

The plaintiffs demur. They deride this classification

of the City's speech, arguing vehemently that the City does not

engage in expressive activity through these third-party flags

- 28 - because it has designated the third flagpole as a forum for private

speech. In support, they offer two arguments. First, the

plaintiffs say that the City explicitly opened the flagpole to

private expression. Specifically, they point to the third page of

the City's paper event application form, which states that the

City "seeks to accommodate all applicants seeking to take advantage

of the City of Boston's public forums." The plaintiffs suggest

that the phrases "all applicants" and "public forums" transmogrify

the third flagpole into a government-designated public forum.

Second, and relatedly, the plaintiffs argue that the City

implicitly opened the flagpole for public discourse because the

record now shows that the City had granted flag-raising permission

284 times without ever denying an earlier request.

These two arguments coalesce into a single theme — but

it is a theme that gains the plaintiffs no traction. We previously

rejected the first of these arguments because a conclusion that

the City has designated the flagpole as a public forum "is

precluded by our government-speech finding." Shurtleff II,

. As we explain below, that rationale still withstands

scrutiny — and even under traditional public-forum analysis, the

plaintiffs' asseverational array lacks force.

The government creates a public forum "only by

intentionally opening a nontraditional forum for public

discourse." Cornelius v. NAACP Legal Def. & Edu. Fund, Inc., 473

- 29 - U.S. 788, 802 (1985). Government inaction or permission for

limited discourse cannot establish a public-forum designation.

To determine if the City has converted the flagpole into a

public forum, we look to the City's "policy and practice" and also

may consider "the nature of the [flagpole] and its compatibility

with expressive activity."

"We will not find that a public

forum has been created in the face of clear evidence of a contrary

intent," nor will we make such a finding "when the nature of the

property is inconsistent with expressive activity." Id. at 804.

At the preliminary injunction stage, we rejected the

plaintiffs' argument that the City's "public forum[]" incantation

rendered the flagpole a public forum because the record contained

clear evidence that the City did not intend to open the flagpole

to public discourse. Shurtleff II,

. On the

enlarged record now before us — which shows that the City over

time has approved 284 requests and has never denied any request

other than the plaintiffs' request — our conclusion remains the

same.

The record is pellucid that the City is not receptive to

any and all proposed flag designs. As we previously indicated,

the City controls which third-party flags are flown from the third

flagpole. A flag-raising is approved only after Rooney "screen[s]"

a proposed flag for "consisten[cy] with the City's message,

policies, and practices" and provides his final approval. Id.;

- 30 - cf. Perry Educ. Ass'n v. Perry Loc. Educators' Ass'n,

(2001) (finding that school's mail system had not been

designated as a public forum when school principal had to grant

permission to access system). Furthermore, all 284 flags

previously flown were flags of countries, civic organizations, or

secular causes. That the City had not rejected prior requests is

insufficient to conclude that the City accepts any and all flags

because the record shows that the City had criteria for approval

that limited flagpole access and that all flags flown satisfied

those criteria. Cf. Cornelius, 473 U.S. at 804-05 (declining to

find designated public forum notwithstanding lack of evidence

showing how many organizations had been denied permission because

admission criteria evidenced selective access). Here, the City's

permission procedures evince selective access to the third

flagpole, and "[t]he government does not create a designated public

forum when it does no more than reserve eligibility for access to

the forum to a particular class of speakers, whose members must

then, as individuals, 'obtain permission.'" Ark. Edu. Television

Comm'n v. Forbes,

(1998). The City's

restrictions demonstrate an intent antithetic to the designation

of a public forum, and those restrictions adequately support the

conclusion that the City's flagpole is not a public forum. See

Cornelius, 473 U.S. at 803.

- 31 - That ends this aspect of the matter. Because the City

engages in government speech when it raises a third-party flag on

the third flagpole at City Hall, that speech is not circumscribed

by the Free Speech Clause. See Walker,

; Summum,

. The City is therefore "entitled" to "select the

views that it wants to express." Summum,

(internal citations omitted). This entitlement includes both the

right to decide not to speak at all and the right to disassociate

itself from speech of which it disapproves. See Mech v. Sch. Bd.

of Palm Beach Cnty.,

(11th Cir. 2015); Downs

v. L.A. Unified Sch. Dist.,

(9th Cir. 2000).

Here, the City exercised those rights by choosing not to

fly the plaintiffs' third-party flag. In the City's view, this

choice allows it more appropriately to celebrate the diversity and

varied communities within Boston. Should the citizenry object to

the City's secular-flag policy or to its ideas about diversity,

the voters may elect new officials who share their concerns. See

Summum,

; Bd. of Regents of Univ. of Wisconsin

Sys. v. Southworth,

(2000); Walker,

. After all, it is the electorate and the political

process that constrains the City's speech, not the Free Speech

Clause. See Summum,

. Consequently, we uphold

the district court's entry of summary judgment in favor of the

- 32 - City on all of the plaintiffs' free speech claims.3 See Shurtleff

III,

, at *6.

C. The Establishment Clause Claim.

The fact that the City is engaging in government speech

does not relieve it from the obligation to comport with the

Establishment Clause. Summum,

. The plaintiffs

assert that the City has failed to satisfy this obligation for two

reasons. First, they assert that the City discriminated between

religion and nonreligion by excluding their proffered flag while

continuing to fly non-religious flags. Second, they assert that

the City discriminated between religions by excluding their

Christian Flag while flying flags that contain other religious

imagery. As examples, the plaintiffs cite the City's own flag,

the Turkish flag, the Portuguese flag, and the Bunker Hill flag.

The City's conduct in this regard, the plaintiffs say, is not only

discriminatory but also demonstrates hostility toward religion.

The "touchstone" for Establishment Clause claims "is the

principle that the 'First Amendment mandates governmental

3 This ruling extends, of course, to the plaintiffs' "unbridled discretion" claim. Both the plaintiffs' articulation of that claim and the authority that they present in support of it presuppose the existence of a public forum. Our conclusion that the flagpole is not a public forum therefore defenestrates the plaintiffs' claim. See Widmar v. Vincent,

, 267 n.5 (1981) (noting that university's constitutional obligation to justify prior restraint on speech arises from its designation of its campus as public forum and would not exist otherwise).

- 33 - neutrality between religion and religion, and between religion and

nonreligion.'" McCreary Cnty. v. ACLU of Ky.,

(2005) (quoting Epperson v. Arkansas,

(1968)).

The government does not act neutrally when its "ostensible object

is to take sides."

Accordingly, the government "cannot act

in a manner that passes judgment upon or presupposes the

illegitimacy of religious beliefs and practices." Masterpiece

Cakeshop Ltd. v. Col. Civ. Rights Comm'n,

(2018).

Starting from this baseline, we turn first to the

allegations of discrimination between religion and nonreligion.

At the outset, we take note that the plaintiffs' Establishment

Clause claim is scantily developed: they have neither identified

any evidence supporting a claim of hostility nor advanced any

serious legal argument for such a claim. The plaintiffs merely

recite the general neutrality obligation that the Establishment

Clause imposes upon the City, failing to articulate any reason why

this obligation requires the City to display their religious flag.4

The plaintiffs' sparse treatment of their Establishment 4

Clause claim suggests that this case, at its core, is not an Establishment Clause case. This suggestion is bolstered by the fact that the type of hostility argument conceptualized by the plaintiffs appears to draw its essence from Supreme Court decisions involving the Free Exercise Clause and applying the strict- scrutiny standard. See, e.g., Trinity Lutheran Church of Columbia, Inc. v. Comer,

(2017) (holding that exclusion of church from otherwise available public program on account of religious status violates Free Exercise Clause despite

- 34 - The exclusion of religious entities from a public

program, without more, does not violate the Establishment Clause.

See Carson ex rel. O.C. v. Makin,

(1st Cir. 2020).

Nor is proof of such exclusion evidence of hostility towards

religion. See

Here, moreover, the record does not give rise

to any suggestion that the City created the flag-raising program

with the goal of inhibiting religion. Cf. Rosenberger v. Rector

& Visitors of Univ. of Va.,

(1995) (finding

governmental program to be "neutral toward religion" when

government did not "create[] it to advance religion or adopt[]

some ingenious device with the purpose of aiding a religious

cause"); McCreary,

(requiring proof of government

"purpose" to favor one side over the other). In fact, the City

went the extra mile: to help avoid any such impression, it offered

the plaintiffs the option of hosting an event alongside the

flagpoles so as to permit the plaintiffs to continue to practice

and share their religion (just as they would had the City granted

their flag-raising request). Under these circumstances, the

government's establishment concerns); Espinoza v. Montana Dep't of Revenue,

(2020) (same where government excluded school based on religious character of the school). In the case at hand, the plaintiffs do not advance a cognizable free exercise claim but, rather, seek the application of a concept of hostility to religion not typically applied to Establishment Clause claims like this one. Seen in this light, the plaintiffs' theory fits awkwardly with precedent — an awkwardness that greatly diminishes the force of their claim.

- 35 - City's conduct simply cannot be construed to suggest the

disparagement of the plaintiffs' religion. Cf. Masterpiece

Cakeshop,

(finding hostility toward religion

when government "disparage[d]" plaintiff's religion "by describing

it as despicable," "characterizing it as merely rhetorical," and

comparing it "to defenses of slavery and the Holocaust").

We add, moreover, that while the Establishment Clause

may not require a secular-flag policy, the City "may act upon [its]

legitimate concerns about excessive entanglement with religion" in

administering its flag-raising program. Eulitt ex rel. Eulitt v.

Maine, Dep't of Educ.,

(1st Cir. 2004); see also

Carson ex rel. O.C.,

. The City has presented just

such a set of concerns in this case and, thus, has made a valid

choice to remain secular. Shurtleff himself described the

Christian flag as "an important symbol of our country's Judeo-

Christian heritage." Should the City honor the plaintiffs'

request, members of the audience would watch the Christian Flag

join the flags of the United States and Massachusetts in front of

the entrance of City Hall. Such a display could be deemed to

constitute a religious statement on the City's part. Cf. Am.

Jewish Cong. v. City of Chicago,

(7th Cir. 1987)

(noting that placement of religious display at city hall heightens

Establishment Clause concerns because "every display . . . is

implicitly marked with the stamp of government approval"). And

- 36 - such a perception would underscore the realistic nature of the

City's belief that the flying of a flag would be an endorsement of

the flag's message. See Widmar v. Vincent,

(1981) (evaluating whether government policy confers "any

imprimatur of state approval on religious sects or practices").

Our government-speech finding bolsters the conclusion

that the City would be perceived to endorse the messages conveyed

by the flags that it flies. When a forum is open to all, it is

doubtful that an observer "could draw any reasonable inference of

[government] support" for a particular religion from religious

speech alone.

, 274 n.14. In such a situation, the

City would not be seen as supporting religious goals. See

Here, however, the City speaks for itself, one third-party flag at

a time. Because an observer would attribute the display's message

to the City, see supra Part II(B), the powerful display of a single

religion's flag (in this case, an "important symbol" of the

plaintiffs' religion) could signal the City's embrace of that

religion.

To complete the picture, it is worth noting that the

Supreme Court has explicitly distinguished the religious character

of long-standing religious monuments, symbols, and practices from

that of newly erected or adopted ones. See Am. Legion v. Am.

Humanist Assoc.,

(2019). In relevant part,

the American Legion Court reasoned that, with the passage of time,

- 37 - "religiously expressive monuments, symbols, and practices can

become embedded features of a community's landscape and identity,"

such that the community "may come to value them without necessarily

embracing their religious roots."

. In other words,

a display of a religious symbol, over time, can "t[ake] on an added

secular meaning."

. Long-standing monuments therefore

enjoy "a strong presumption of constitutionality."

.

This presumption does not apply, though, to the

plaintiffs' proposed religious-flag display. The City has never

before displayed such a flag and, as such, this pioneering

elevation of an "important symbol" of the Christian heritage would

come without the secular context or importance that the passage of

time may have afforded other displays. The raising of the

Christian Flag thus would threaten to communicate and endorse a

purely religious message on behalf of the City. Where that

endorsement is as widely visible and accessible as it is here, and

where the City could run the risk of repeatedly coordinating the

use of government property with hierarchs of all religions, the

City's establishment concerns are legitimate. See Lemon v.

Kurtzman,

(1971). Accordingly, we conclude that

the City's choice to refrain from endorsing a religion through the

raising of a religious flag comports with the City's constitutional

obligations.

- 38 - This leaves the plaintiffs' claim that the City's

raising of certain flags that incorporate religious imagery while

excluding the plaintiffs' Christian Flag constitutes an

endorsement of certain religions over others and, thus, works a

violation of the Establishment Clause. "[A] flag that references

religion by using religious symbols in part of its field is not

itself a religious flag." Shurtleff II,

. As the

plaintiffs repeatedly emphasize, Rooney does not even look at the

flag designs before granting most approvals. And when he reviewed

what an applicant described as the "Portuguese Flag," Rooney

approved it because it stands for Portugal, the country, and not

because it contained certain religious symbols. For aught that

appears, Rooney's decision to fly those country/entity flags that

include religious imagery was one without a religious dimension.

In a logical universe, then, the fact that Rooney elected to let

the Flag of Portugal fly is manifestly insufficient to establish

that the City is hostile to the plaintiffs' religion.5

The short of it is that neutrality toward religion does

not obligate the City to fly the Christian Flag on its third

flagpole. The City remains neutral where, as here, it wholly

refrains from passing judgment on religion. See McCreary, 545

5 For substantially the same reasons, Rooney's decision to allow the hoisting of other flags incidentally containing religious imagery (such as the Turkish flag, the Bunker Hill flag, and the City's own flag) do not evince hostility toward religion.

- 39 - U.S. at 876. Consequently, we hold that no violation of the

Establishment Clause occurred when the City elected not to fly the

plaintiffs' Christian Flag.

D. The Fourteenth Amendment Claim.

There is one last stop on our itinerary. The plaintiffs

submit that the City's conduct amounts to content-based

discrimination against their religious speech and, thus, violates

the Equal Protection Clause. The City counters that, because the

flagpole is not a public forum and because the plaintiffs' First

Amendment claims are futile, their equal protection claim fails as

a matter of law.

We pause to brush aside a procedural gambit. The

plaintiffs suggest that the City has waived any counter-argument

to their equal protection claim. This is magical thinking: the

City advanced the very same argument upon which it now relies at

summary judgment. No more was exigible to preserve the argument

for appellate review. See United States v. Lilly,

(1st Cir. 1994).

Turning to the merits of the claim, we start with the

familiar proposition that the Equal Protection Clause demands that

"all persons similarly situated should be treated alike." City of

Cleburne v. Cleburne Living Ctr.,

(1985). To

establish an equal protection claim, a plaintiff must show that

"(1) the person, compared with others similarly situated, was

- 40 - selectively treated; and (2) that such selective treatment was

based on impermissible considerations such as race, religion,

intent to inhibit or punish the exercise of constitutional rights,

or malicious or bad faith intent to injure a person." Davis v.

Coakley,

(1st Cir. 2015).

What we previously have said — that the City has been

engaged in government speech not evocative of First Amendment

protections and that the flagpole is not a public forum, see supra

Part II (B) — sounds the death knell for the plaintiffs' equal

protection claim. The distinguishing feature of the speech cases

in which the Supreme Court has found violations of the Equal

Protection Clause is the existence of a public forum. See Perry

Educ. Ass'n,

; see, e.g., Police Dep't of Chicago v.

Mosely,

, 96 (1972); Carey v. Brown,

(1980). Conversely, the Court has made nose-on-the-face plain

that "on government property that has not been made a public forum,

not all speech is equally situated, and the State may draw

distinctions which relate to the special purpose for which the

property is used." Perry Educ. Ass'n,

. In the

absence of a public forum — and we have found none here — the

City's practice need only pass rational basis review. See

Put another way, the practice need only bear a rational

relationship to some legitimate governmental purpose. See

Here, such a purpose is evident in the celebration of Boston's

- 41 - varied and diverse communities. Consequently, the plaintiffs'

equal protection claim fails.

III. CONCLUSION

We need go no further. Like the district court, see

Shurtleff III,

, at *6, we have taken the measure of

the plaintiffs' claims and found them wanting. Hence, the judgment

of the district court is

Affirmed.

- 42 -