Pro-Life Flag Flies in Billerica, Massachusetts

Fly the Pro-Life Flag is a group based in Billerica, MA, a town 25 miles Northwest of Boston.   Led by Mrs. Dee Dee Clark Dorrington,  the group successfully petitioned the town to fly the Pro-Life flag.

A hearing by the town selectmen was held on Monday September 11.   The group reached out to our friends at the Massachusetts Family Institute   https://www.mafamily.org/  and on the day of the meeting, the selectmen received a letter from the Institute’s attorney Sam Whiting citing   “Shurtleff v Boston  www.lc.org/flag 

Dear Members of the Select Board,

My name is Sam Whiting and I am an attorney with Massachusetts Family Institute, a nonprofit organization dedicated to strengthening the family in Massachusetts. I write on behalf of pro-life citizens of Billerica who recently submitted an application to fly the pro-life flag on a town flag pole located at the Billerica Public Library during the month of October. The purpose of this letter is to advise you of the legal implications of Billerica’s policies and practices in the context of this request.

As you know, the Supreme Court recently unanimously held in Shurtleff v. City of Boston that when a city allows a flagpole to be used as a public forum for expression by various groups, it cannot discriminate against any group’s flag based on the message it conveys.[1] A critical factor in the Court’s analysis in deciding whether Boston had turned its flagpole into a public forum was the extent to which the government had “actively shaped or controlled the expression” at issue.[2] Because Boston had allowed numerous other private groups to fly their flags on the city flagpole and had never turned away an applicant, it could not discriminate against a Christian applicant because of the religious content of the flag he requested to fly.[3]

It is our understanding that in the past, Billerica has approved the requests of a number of private groups to fly their flags on city flagpoles, including but not limited to:

• The Italian flag, to celebrate Italian Heritage Month;
• The Armenian Genocide Commemoration flag;
• The Indian flag, to commemorate Indian Independence Day;
• The LGBTQ Pride flag, to commemorate LGBTQ Pride month.

Some of these flags have been raised multiple times over multiple years at the request of private groups. An ordinary citizen observing private groups raising these flags would understand that the flags represent the groups’ private expression, and not the government speech of Billerica.[4] It should also be noted that some of these flags, such as the Armenian Genocide flag or the LGBTQ Pride flag, touch on sensitive and/or potentially contentious political issues over which Billerica residents may strongly disagree.

By engaging in a practice of allowing any and all private groups to use town flagpoles for private expression, Billerica has opened its flagpoles as a public forum, just as Boston did. This means that this Board may not deny the pro-life group’s request to fly its own flag based on the content of its message. To do so would violate their First Amendment right to free expression. While some may see the flag as controversial, it is no more controversial than other flags the Board has allowed to fly in the past and should be given equal treatment.

It is true that Billerica may close the forum it has opened by passing a policy stating that town flag poles are no longer forums for public expression but are instead forums for government speech. However, until such a policy is passed, the flagpoles remain a public forum. The fact that the Board is now moving to pass such a policy in apparent response to the request to fly the pro-life flag indicates that the Board is acting to discriminate against the pro-life group based on the content and viewpoint of their message. This is unfortunate. Should the Board deliberately and unnecessarily delay acting on the pro-life group’s request to fly their flag until it can pass a new flag policy, this would also violate the group’s First Amendment rights.

For the foregoing reasons, I would strongly advise the Board to approve the pro-life group’s request to fly the pro-life flag at some point during the month of October.

Very truly yours,         Samuel J. Whiting, Esq.

Staff Attorney

Massachusetts Family Institute

401 Edgewater Drive, Suite 580

Wakefield, MA 01880

Tel: 781.589.0400

Michael King of Mass Family Institute reached out to me the day of the hearing, and asked if I would Zoom and testify.  I was happy to do so and during my brief testimony, I reminded the selectmen that it cost the City of Boston more than $2.1 million in legal fees.  The selectmen voted 4-1 to let the group fly the Pro-Life flag for two weeks in October.  And, on Monday October 16, a brief flag raising ceremony took place in the center of Billerica.

After the flag raising, DeeDee made these remarks on the group’s Facebook page:

The flag raising ceremony went on without a hitch (well, maybe a brief tangle of the ropes) and we feel truly blessed to have seen this initiative thorough.