City of Alexandria, Virginia
_____________
MEMORANDUM
DATE: NOVEMBER 21, 2023
TO: THE HONORABLE MAYOR AND MEMBERS OF CITY COUNCIL
THRU: JAMES F. PARAJON, CITY MANAGER /s/
FROM: JOANNA C. ANDERSON, CITY ATTORNEY
DOCKET TITLE:
TITLE
Consideration of a Resolution Regarding Government Speech. [ROLL-CALL VOTE]
BODY
ISSUE: Designation of certain areas and events for official government speech and adoption of certain messages that can be conveyed at these areas and events.
RECOMMENDATION: That City Council approve the attached resolution regarding the use of certain areas and events for official government speech and the adoption of certain messages.
BACKGROUND: On May 2, 2022, the Supreme Court of the United States held, in Shurtleff v. Boston, that the city of Boston, Massachusetts violated the Free Speech Clause of the First Amendment by barring a religious group from flying the Christian flag on a flagpole outside of Boston’s city hall. Boston has three flagpoles near its city hall that generally display the flags of the United States of America, the Commonwealth of Massachusetts, and the city of Boston. On occasion, the City allows private parties to request permission to briefly display other flags on the third flagpole, usually in conjunction with events organized by those parties. Over a period of 12 years (2005-2017), the city of Boston did not deny any of the 284 requests made by private parties to display about 50 unique flags. However, when a religious group applied to display the Christian flag, the City denied its application citing concerns that displaying a flag called “the Christian flag” would violate the First Amendment’s Establishment Clause by signaling that the city was endorsing a particular religion. At the time, Boston did not have a written policy regarding the use of the flagpole.
The religious group sued, alleging that Boston violated the group’s First Amendment free speech rights when it barred the group from flying a flag based solely on the content of the flag. The Supreme Court held that while flags flying outside of Boston’s city hall usually convey the city’s speech, because Boston (1) allowed private entities to use the flagpole in front of City Hall, but did not actively control the flag raising nor shape the messages the flags sent, and (2) did not have a written policy on what flags groups could fly and what flags could communicate, Boston effectively turned the third flagpole into a designated public forum, and as such could not discriminate based on the speech or expression offered in that public forum.
DISCUSSION: The Shurtleff case was largely decided on (1) Boston’s lack of editorial control over flags flown on its third flagpole and (2) Boston’s lack of a written policy on who may fly flags, what may be on them, nor how to decide which flags could be flown. In response to the Shurtleff decision, the Alexandria City Council adopted two resolutions. Resolution No. 3105, enacted on October 25, 2022, clarified that City flagpoles or other flag-flying locations are not public forums, but rather, are used to convey government speech. It further delineated categories of flags that may be flown at such locations. Resolution No. 3124, enacted on January 10, 2023 listed which Commemorative Flags may be flown on the City’s flagpoles and other City-owned flag flying locations.
It has now become apparent that the City Council has additional areas and city sponsored events where it may also want to convey its government speech. Therefore, the proposed resolution provides a more comprehensive clarification regarding which areas and events are not public forums and can be used to convey government speech. Such areas and events include City-controlled sign-displaying locations, flag-flying locations, banner-hanging locations, crosswalks, the exterior of City-controlled buildings, and City-produced festivals, fairs, parades, markets, and days of remembrance. This resolution moreover lists the messages that may be conveyed as official government speech within these areas and events. Additional messages and events may be approved by Council via proclamation or resolution.
Finally, this resolution repeals Resolution No. 3105 and Resolution No. 3124 regarding the use of City flagpoles because the subject matter of these prior resolutions is duplicative of the content addressed in the proposed resolution.
FISCAL IMPACT: There is no direct fiscal impact to implement this policy.
ATTACHMENT: Resolution.
STAFF:
David Lanier, Assistant City Attorney
Shawn Lassiter, Assistant City Attorney
Lindsay Dubin, Assistant City Attorney