A rare and precious victory for Christian free speech


This is the story of Hal Shurtleff, the Third Flagpole and the Christian flag.

Hal Shurtleff is one of this column’s titular saints. For decades he has devoted his life to Camp Constitution, a Christian summer camp for teenagers in the back country of Massachusetts. I was a camp counsellor there for two years before the Chinese virus struck. For an intensive and exhilarating week, the teenagers are given course of instruction in everything from why Christianity is a good thing to why the climate change scam is a bad thing. But above all they are given a firm grounding in the splendors of the United States Constitution.

Outside the City Hall in Boston, long controlled by the generally anti-Christian “Democrat” Party, stand three flagpoles. On the first three flagpoles, the City flies the flags of the United States, of the Commonwealth of Massachusetts and of the City of Boston. Amiably, it allows anyone else to fly a flag for a week at a time on the third flagpole. I have long wondered what would happen if I were to ask the City to fly the Union Flag.

However, in 2017, when Hal Shurtleff and his organization applied to fly a Christian flag on the third flagpole, the City of Boston turned them down flat. Almost 300 other organizations, including the Holy See and the Chinese Communist Party, had had their flags flown. But Camp Constitution was refused, solely on the ground that, on its application form, it had mentioned that the flag it proposed to fly was Christian. It bore the Cross.

The Communist city fathers weren’t having that. For the only time on record, they refused to fly a flag on request.

Don’t mess with Hal. In 2018 he applied to the District Court for an order telling the City of Boston to let him exercise the same free speech as they had permitted their fellow-Communists from China to exercise.

However, the courts in the United States are not the impartial tribunals to which we are accustomed on this side of the pond. They are political and, these days, that means they are far Left. Scandalously, the District Court turned Hal down.

So in 2019 Hal appealed to the First Circuit Court, which scandalously turned him down. In 2020 he went back to the District Court and tried again. The District Court scandalously turned him down again. In 2021 he went back to the First Circuit Court. The First Circuit Court scandalously turned him down again.

After four refusals, most people would have given up. But Hal Shurtleff is made of sterner stuff than most people. He appealed to the Supreme Court of the United States.

This is where the fun began. For the Supreme Court, like all the courts below it, is intensely political. But, unlike the judges in the lower courts, who are near-exclusively totalitarian, particularly in far-Left States such as Massachusetts, the justices of the Supreme Court are directly appointed by the President of the United States. Since the Republican Party is not (yet) Communist, on average about half the justices are libertarians, because the White House is Republican about half the time.

Since the Supreme Court justices are appointed for life, it is pot luck whether a President will get to appoint anyone during his term of office. As it happens, more justices have retired during Republican than during Democrat presidencies recently. Therefore, the Supreme Court is less than half totalitarian. There are three very far-Left justices, five libertarians and Chief Justice Roberts, who started out as a libertarian but has drifted towards totalitarianism over the years.

Usually, this most intensely politically partisan of courts votes strictly along party lines – five votes for libertarianism, four for totalitarianism. Sometimes, when chief justice Roberts remembers his roots, there are six votes for libertarianism and three for totalitarianism.

But get this. When Hal went before the Supreme Court, the score – just announced – was nine to nil in his favor. Even the totalitarian justices could not keep a straight face and find in favor of the ghastly City of Boston.

The issue that Hal presented to the Supremes was this: When private religious viewpoints are censored from a public forum open to all speakers, does government violate the Free Speech clause of the First Amendment to the U.S. Constitution?

The City of Boston had disreputably sought to maintain that in deciding which flags to allow and which to deny it was, in effect, exercising “government speech” and was, therefore, entitled to decide what it wanted to say on its third  flagpole. It was willing to speak up for the Chinese Communist Party, which unlawfully occupies and represses free Tibet, imprisons millions of Muslim Uyghurs in concentration camps, forcibly harvests the organs of living opponents to prolong the lives of the trembling gerontocrats of the Party, spreads fatal disease worldwide and tears down crosses and other Christian symbols from churches. But it was not willing to speak up for the world’s largest religion.

The Supreme Court did not buy Boston’s cheesy argument. For it was clear that, until the City had decided to veto Hal’s Christian flag it had allowed anyone and everyone who had applied to fly a flag to fly it. No exceptions.

It was Justice Alito who got right to the heart of the matter. He wrote: “Courts must be very careful when a government claims that speech by one or more private speakers is actually government speech. When that occurs, it can be difficult to tell whether the government is using the doctrine as a subterfuge for favoring certain private speaker over others based on viewpoint”, so that the government-speech doctrine becomes susceptible to dangerous misuse…

“To prevent the government-speech doctrine from being used as a cover for censorship, courts must focus on the identity of the speaker. The ultimate question is whether the government is actually expressing its own views or the real speaker is a private party and the government is surreptitiously engaged in the regulation of private speech…

“Government control over speech is relevant to speaker identity in that speech by a private individual or group cannot constitute government speech if the government does not attempt to control the message. But control is also an essential element of censorship.”

As totalitarianism tightens its grip, increasingly Christians are being persecuted for saying Christian things. Recall the London Methodist pastor arrested, offensively interrogated and flung into prison for 21 hours for daring to quote Genesis: “Male and female created He them.”

Recall the whistle-blower, David Daleiden, who faces nine baseless criminal charges for having exposed Planned Parenthood’s buying and selling of aborted children for medical experimentation so that its director could afford a Lamborghini.

Recall the numerous instances in which the British police, now thoroughly totalitarian, have recorded supposed “hate-speech” “crimes” on individual citizens’ criminal records, but without even telling the individuals, and without going through the boring formality of taking the alleged offenders to court.

Hal’s nine-nil victory, following four previous rejections in the lower courts, is not quite unprecedented, but it is rare and precious. Its beneficial effect will be felt worldwide. For it is a badly needed reminder that if you love your neighbor you let him have his say, even if you disagree with him.

In the words of John Milton, successfully arguing against the imposition of a tax on books:

This is true liberty, when freeborn men

Having to advise the public, may speak free.

Which he who can and will deserves high praise.

Who neither can nor will may hold his peace.

What can be juster in a state than this?