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Date: 6/21/2023
SOUTHWICK — When the Select Board meets again on June 26, its members will be discussing, and possibly adopting, a policy that will define what flags will be allowed to fly on the flagpole in front of Town Hall under the U.S. and state flag.
“This needs to be in place so we don’t run into the problems Boston had,” said Select Board member Jason Perron about the town’s need for a flag policy.
In 2017, a Christian group sued the city of Boston after officials refused to fly its flag on one of three poles at Boston City Hall. It was the first time Boston had denied a flag flying request. City officials argued that flying a Christian-themed flag would violate the Establishment Clause of the First Amendment, which prohibits the government from making any law respecting an establishment of religion.
The group appealed: first to federal District Court and a U.S. Appeals Court, which both upheld the city decision, and then to the U.S. Supreme Court, which ruled the group’s First Amendment rights had been violated.
With that history, Perron said that during a meeting of the Massachusetts Municipal Association last January, it was suggested that all towns and cities establish a policy that clearly outlines the circumstances under which flags can be flown on municipal government property.
With Perron’s guidance, Town Attorney Benjamin Coyle drafted the policy for Select Board members to discuss. According to the proposed policy, “the town does not, nor has it ever, intended to designate the flying of flags on town-owned property as a public forum by permitting a non-governmental party to raise a particular flag.”
Further: “the Select Board’s choice of whether to raise, or decline to raise, a flag on town-owned property, the process for such a decision and the adoption of this policy shall not be interpreted as designating any town-owned property as a public forum for the flying of flags.”
The operative term in the proposed policy is “public forum.”
A strict interpretation of public forum means speech that occurs on governmental property cannot be restricted.
If the proposed policy is adopted, it will establish in the town’s bylaws that flying a flag at Town Hall is not defined as a “public forum.” That should give the Select Board discretion to raise, or decline to raise, a flag without running afoul of the First Amendment.
The standards of the policy details what flags can be flown in front of Town Hall. The flags include the U.S. and state flag, and a third or “guest flag,” which this policy addresses. “Guest flags” would not be allowed at other town properties.
On other town-owned property, the flags allowed are the U.S., state, and town flag, any flag of the U.S. military, the POW/MIA remembrance flag, and flags of officially recognized veterans’ organizations like the Disabled Veterans of America, Veterans of Foreign Wars, the American Legion, Wounded Warrior, or similar organizations.
The policy proposes that any organization that wants to fly a guest flag must apply in writing with a form that has yet to be developed and pay a non-refundable fee that has yet to be determined.
All applications will be reviewed and permitted at the sole discretion of the Select Board and any denials will include a written explanation as to why the request was denied, according to the proposed policy.
Perron said offering written explanations to organizations that might be denied fly their flag will help address any questions about the reasoning behind denying an organization’s flag.
“This will show that [the Select Board] can’t arbitrarily say to any organization we don’t like it so we won’t fly it,” Perron said.
The policy provides examples of guest flags and include: flags relating to special circumstances, holidays, town-based events, or recognized days of honor (autism awareness, Armed Forces Day, Pearl Harbor Day, 9/11 Remembrance Day and flags supporting nonprofit organizations). No commercial business or promotional flags are allowed, and the town reserves the right to remove any flag at any time without any cause.
According to the policy, the flags must be clean, serviceable and the proper size for the Town Hall flagpole. The guest flags also become the property of the town.