Shurtleff v. City of Boston

In Shurtleff v. City of Boston the U.S. Supreme Court held unanimously that Boston’s refusal to fly a Christian flag on a flagpole outside city hall violated the First Amendment. The State and Local Legal Center (SLLC), in an amicus brief, argued the First Amendment wasn’t violated.

On the plaza, near Boston City Hall entrance, stand three 83-foot flagpoles. Boston flies the American flag on one (along with a banner honoring prisoners of war and soldiers missing in action) and the Commonwealth of Massachusetts flag on the other. On the third it usually flies Boston’s flag.


Since 2005 Boston has allowed third parties to fly flags during events held in the plaza. Most flags are of other countries, marking the national holidays of Bostonians’ many countries of origin. Third-party flags have also been flown for Pride Week, emergency medical service workers, and a community bank.


When Camp Constitution asked to fly a Christian flag Boston refused, for the first time ever, citing Establishment Clause concerns. The flag has a red cross on a blue field against a white background.


Camp Constitution sued arguing that Boston opens its flagpole for citizens to express their views in which case it can’t refuse to fly Camp Constitution’s flag based on its (religious) viewpoint. Boston argued it “reserved the pole to fly flags that communicate governmental messages” and was “free to choose the flags it flies without the constraints of the First Amendment’s Free Speech Clause.”


The Supreme Court held that Boston’s flag-raising program doesn’t constitutes government speech, meaning the First Amendment applies and it couldn’t reject Camp Constitution’s flag based on its viewpoint.


Justice Breyer, writing for the majority, noted that “[t]he boundary between government speech and private expression can blur when, as here, a government invites the people to participate in a program.” Conducting a “holistic inquiry” which considered “the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression,” he didn’t find government speech.


According to the Court the “general history” of flying flags “particularly at the seat of government” favors Boston. But “even if the public would ordinarily associate a flag’s message with Boston, that is not necessarily true for the flags at issue here” where “Boston allowed its flag to be lowered and other flags to be raised with some regularity.”


While neither of these two factors resolved the case, Boston’s record of not “actively control[ling] these flag raisings and shap[ing] the messages the flags sent” was “the most salient feature of this case.” Boston had “no written policies or clear internal guidance—about what flags groups could fly and what those flags would communicate.”


While the SLLC amicus brief argued that Boston’s third-party flag program was government speech it acknowledged the Court might not agree and asked for “clear guidance on how they may avoid creating such a forum while still flying third-party flags.” Justice Breyer obliged writing: “Boston could easily have done more to make clear it wished to speak for itself by raising flags. Other cities’ flag-flying policies support our conclusion. The City of San Jose, California, for example, provides in writing that its ‘flag-poles are not intended to serve as a forum for free expression by the public,’ and lists approved flags that may be flown ‘as an expression of the City’s official sentiments.’”

Daniel L. Bromberg and Shelby L. Dyl of Pillsbury Winthrop Shaw Pittman wrote the SLLC amicus brief which the following organizations joined:  National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.  

Cummings v. Premier Rehab Keller 

In Cummings v. Premier Rehab Keller the U.S. Supreme Court held 6-3 that emotional distress damages aren’t available if funding recipients violate four federal statutes adopted using Congress’s Spending Clause authority. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing for this result.  

The relevant statutes include Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act, the Section 1557 of the Affordable Care Act, and Title IX of the Education Amendments Act of 1972. Depending upon the statute, they prohibit funding recipients from discriminating on the basis of race, color, national origin, sex, disability, or age.

Jane Cummings is deaf and legally blind. She sought physical therapy from Premier Rehab Keller and requested it provide an American Sign Language interpreter at her appointments. Premier Rehab Keller declined to do so. She sued claiming disability discrimination in violation of the Rehabilitation Act and the Affordable Care Act. Among other remedies she sought emotional distress damages.  

None of the four statutes relevant to this case expressly provides victims of discrimination a private right of action to sue the funding recipient for money damage so they don’t list available damages. In Cannon v. University of Chicago (1979) the Supreme Court found an implied right of action in Title VI and Title IX, which the Supreme Court later concluded Congress ratified. The Rehabilitation Act and the Affordable Care Act expressly incorporate the rights and remedies available under Title VI.


In an opinion written by Chief Justice Roberts, emotional distress damages aren’t available under these statutes because a funding recipient wouldn’t have had clear notice it might face such liability.

According to the Chief Justice, the Supreme Court has applied a “contract-law analogy in cases defining the scope of conduct for which funding recipients may be held liable for money damages” in Spending Clause cases. Spending Clause legislation operates based on consent: “in return for federal funds, the [recipients] agree to comply with federally imposed conditions.” A particular remedy is available in a private Spending Clause action “only if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature.”


In Barnes v. Gorman (2002) the Supreme Court held that punitive damages are unavailable in private actions brought under the statutes at issue in this case because such damages aren’t “usual” contract remedies. Similarly, according to the Court, it is “hornbook law that ‘emotional distress is generally not compensable in contract.’”

Cummings argued that “several contract treatises put forth the special rule that ‘recovery for emotional disturbance’ is allowed in a particular circumstance: where ‘the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result.’”


The SLLC amicus brief encouraged the Court to not get distracted by exceptions to the general rule that emotional distress damages aren’t available under contract law. The majority agreed stating: “It is one thing to say that funding recipients will know the basic, general rules. It is quite another to assume that they will know the contours of every contract doctrine, no matter how idiosyncratic or exceptional.”


Richard A. Simpson and Elizabeth E. Fisher of Wiley Rein and F. Andrew Hessick of UNC School of Law wrote the SLLC amicus brief which the following organizations joined:  National Conference of State Legislatures, National Association of Counties, National League of Cities, U.S. Conference of Mayors, International Municipal Lawyers Association, and National Public Labor Employer Labor Relations Association.

City of Austin, Texas v. Reagan National Advertising of Texas Inc. 

In City of Austin, Texas v. Reagan National Advertising the U.S. Supreme Court held 6-3 that strict (fatal) scrutiny doesn’t apply to Austin allowing on-premises but not off-premises signs to be digitized. The State and Local Legal Center (SLLC) filed an amicus brief supporting Austin, which Justice Breyer quoted twice in his concurring opinion.

Austin’s sign code prohibits any new off-premises signs but has grandfathered such existing signs. On-premises signs, but not off-premises signs, may be digitized. Reagan National Advertising argued that this distinction violates the First Amendment’s Free Speech Clause.

In her majority opinion Justice Sotomayor notes that “’tens of thousands of municipalities nation-wide’ have adopted analogous on-/off-premises distinctions in their sign codes.” Likewise, since the Highway Beautification Act of 1965 “approximately two-thirds of States have implemented similar on-/off-premises distinctions.”


Per Reed v. Town of Gilbert (2015), a regulation of speech is content based, meaning strict scrutiny applies and it is almost certainly unconstitutional, if the regulation “applies to particular speech because of the topic discussed or the idea or message expressed.” According to the Fifth Circuit because the City’s on-/off premises distinction required a reader to determine “who is the speaker and what is the speaker saying,” the distinction was content based.

According to the Court the lower court’s interpretation of Reed was “too extreme.” In Reed, the Town of Gilbert’s sign code “applied distinct size, placement, and time restrictions to 23 different categories of signs.” For example, ideological signs were treated better than political signs and temporary directional signs were most restricted. The Court reasoned these categories were content based because Gilbert “single[d] out specific subject matter for differential treatment, even if it [did] not target viewpoints within that subject matter.”

Justice Sotomayor opined: “Unlike the sign code at issue in Reed . . . the City’s provisions at issue here do not single out any topic or subject matter for differential treatment. A sign’s substantive message itself is irrelevant to the application of the provisions; there are no content-discriminatory classifications for political messages, ideological messages, or directional messages concerning specific events, including those sponsored by religious and non-profit organizations. Rather, the City’s provisions distinguish based on location: A given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed or not. The message on the sign matters only to the extent that it informs the sign’s relative location.”

The Supreme Court left it to the lower court to decide whether Austin’s sign ordinance was constitutional. In a concurring opinion Justice Breyer explained why he thought “a strong presumption of unlawfulness is out of place here,” citing to the SLLC amicus brief.

According to Justice Breyer, “the public has an interest in ensuring traffic safety and preserving an esthetically pleasing environment . . . and the City here has reasonably explained how its regulation of off-premises signs in general, and digitization in particular, serves those interests. Amici tell us that billboards, especially digital ones, can distract drivers and cause accidents. Brief for National League of Cities et al. as Amici Curiae 22 (‘The Wisconsin Department of Transport found a 35% increase in collisions near a variable message sign’). They add that on-premises signs are less likely to cause accidents. Id., at 23 (‘[A] 2014 study found no evidence that on premises digital signs led to an increase in crashes’).”


John Korzen of the Wake Forest University School of Law Appellate Advocacy Clinic wrote the SLLC amicus brief which the following organizations joined:  National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.


Thompson v. Clark

In a 6-3 decision in Thompson v. Clark the U.S. Supreme Court held that to demonstrate a favorable termination of a criminal prosecution in order to bring a Fourth Amendment malicious prosecution case a plaintiff need only show that his or her prosecution ended without a conviction.

Larry Thompson’s sister-in-law, who lived with him and suffers from mental illness, reported to 911 that he was sexually abusing his one-week-old daughter. Thompson refused to let police in his apartment without a warrant. After a “brief scuffle” police arrested Thompson and charged him with obstructing governmental administration and resisting arrest. Medical professionals at the hospital determined Thompson’s daughter had diaper rash and found no signs of abuse.

Before trial the prosecutor moved to dismiss the charges and the trial judge agreed to do so without explaining why. Thompson then sued the officers who arrested him for malicious prosecution under the Fourth Amendment. Per Second Circuit precedent a malicious prosecution case can only be brought if the prosecution ends not merely without a conviction but with some affirmative indication of innocence.

In an opinion written by Justice Kavanaugh the Supreme Court disagreed with the Second Circuit and held that a Fourth Amendment malicious prosecution case may be brought as long as there is no conviction.

Thompson brought his Fourth Amendment malicious prosecution case under 42 U.S.C. §1983, which was adopted in 1871. This federal statute allows state and local government officials to be sued for money damages when they violate constitutional rights. One of the elements of a malicious prosecution claim is “favorable termination” of the underlying criminal prosecution. The other elements include whether the prosecution was “instituted without any probable cause” and was motivated by “malice.”

According to the Court, to determine what favorable termination entails—a prosecution ending merely without a conviction or instead with an affirmative indication of innocence—the Court had to determine what courts required in 1871. The parties “identified only one court that required something more, such as an acquittal or a dismissal accompanied by some affirmative indication of innocence.” So, the Supreme Court reasoned, no conviction is enough for a prosecution to be favorably terminated.

Thompson described his claim as malicious prosecution under the Fourth Amendment and the Court treated it as such. The SLLC amicus brief in this case argued Thompson was really making a false imprisonment claim under the Due Process Clause. Favorable termination isn’t an element of a false imprisonment claim. Dissenting Justices Alito, Thomas, and Gorsuch agreed and would have held malicious prosecution claims can’t be brought under the Fourth Amendment.

According to Justice Alito, writing for the dissent, reasoned “the Fourth Amendment and malicious prosecution have almost nothing in common.” The Fourth Amendment prohibits “unreasonable searches and seizures.” Such claims don’t involve a prosecution, malice, and are “not dependent on the outcome of any prosecution that happens to follow a seizure.” Likewise, “[s]ince a malicious-prosecution claim does not require a seizure, it obviously does not require proof that the person bringing suit was seized without probable cause.”

Myriam Zreczny Kasper and Julian N. Henriques, Jr. of the City of Chicago wrote the SLLC amicus brief which the following organizations joined:  the City of Chicago, National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.