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The religious right has an extraordinarily high win rate before the current, Republican-dominated Supreme Court, even when it asks for accommodations that endanger human lives. So there probably isnt much doubt how the Court will rule in Shurtleff v. Boston, a free speech case brought by a conservative Christian group.

But unlike several other cases, where this Supreme Court has scrambled longstanding legal doctrines to hand victories to religious conservatives, the plaintiffs in Shurtleff raise genuinely strong arguments under existing legal precedents. Indeed, the best arguments for these plaintiffs position are strong enough that President Joe Bidens administration filed a brief urging the Court to rule in their favor.

Shurtleff involves three flagpoles that stand outside of Bostons city hall. One of these flagpoles displays the US flag, with a flag honoring prisoners of war and missing soldiers displayed below it. The second features Massachusettss flag. And the third displays the city of Bostons flag but only most of the time.

On many occasions, the city will replace its flag with another honoring an ethnic group, a cultural celebration, a historic event or individual, or some other flag requested by private citizens. At various points, Boston has displayed the flags of many nations, including Brazil, China, Ethiopia, Italy, Mexico, and Turkey. Its also displayed an LGBTQ Pride flag, a flag memorializing victims of murder, a flag commemorating the Battle of Bunker Hill, and a flag intended to honor Malcolm X.

But Boston will not display a Christian flag in particular, a mostly white flag featuring a red cross on a blue background in its corner. And it wont do so despite the fact that Camp Constitution, a group founded to promote free enterprise and to enhance understanding of our Judeo-Christian moral heritage, formally requested that the city display this flag.

The Boston city commissioner who denied this request says he did so because displaying a religious flag could be interpreted as an endorsement by the city of a particular religion, in violation of separation of church and state or the [C]onstitution. (In fairness, there are older Supreme Court cases suggesting that the government cannot take actions that could reasonably be perceived as endorsing a religious viewpoint, but those older cases are out of favor with the current Court. And they are not at issue in Shurtleff.)

The legal question in Shurtleff turns on who, exactly, is expressing a pro-Christian message when a private group asks the city to display this flag on its own flagpole, and Boston agrees to do so. Is it the city who owns the pole, or the group who requested the flag?

When the government speaks in its own voice, it is allowed to say what it wants without having to worry about whether other viewpoints are excluded. As the Supreme Court put it in 2015, in a line that has tremendous resonance for the nations current political divide, How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization?

Yet, if the government creates a forum where other people are invited to express their own views, then the government is subject to strict safeguards against discrimination. As the Court put it in Pleasant Grove City v. Summum (2009), once a forum is opened to private speakers, restrictions based on viewpoint are prohibited.

In any event, determining who is responsible, as a legal matter, for a flag displayed on Bostons third flagpole is not an easy question.

The First Amendment ordinarily forbids viewpoint discrimination of any kind by the government. A public school could not, for example, provide meeting space to a student Republican organization but not a student Democratic organization, if both groups are otherwise qualified to use that space.

Notably, this bar on viewpoint discrimination is absolute. If the Supreme Court determines that it applies in the Shurtleff case, then Boston would be unable to exclude a Nazi group from flying a flag for as long as the flagpole is available to people with other viewpoints.

But the bar on viewpoint discrimination does not apply when the government expresses its own opinions in its own voice. As the Supreme Court put it in one case, the government is allowed to express the message Fight Terrorism without having to give equal time to al Qaeda.

In Summum, the Court rejected a demand from a religious group who claimed that, because a Utah city already displayed 15 monuments in a public park, it must also display a 16th monument proclaiming the Seven Aphorisms of SUMMUM. The Court reasoned that permanent monuments displayed on public property typically represent government speech.

Then, in Walker v. Texas Department of Motor Vehicles (2015), the Court reached a similar conclusion with respect to license plates. Texas permitted private individuals to design specialty license plates that had to be approved by the state. After a pro-Confederate organization designed a plate that incorporated the slaveholding confederations battle flag, the Court held that the state could reject this plate design.

Both cases looked to three factors to determine whether speech should be attributed to the government or to an individual and therefore whether the government is allowed to exclude disfavored viewpoints. These include the history of the kind of forum where the speech takes place, whether the government maintained control over that forum, and whether persons who observe the speech would reasonably conclude that it comes from the government (These three factors can overlap somewhat, as a court may need to look at the history of a particular forum to determine whether the government maintains control over it.)

But these factors cut in different directions in the Shurtleff case. Historically, between 2005 and 2017, the city considered 284 requests to raise a flag on city halls third flagpole, and it approved every single one of these requests before it rejected Camp Constitutions request to display a Christian flag. That suggests that the flagpole operated more as a public forum that was open to all comers, and less as a place where the city displays carefully curated messages.

On the other hand, the state maintains the land where the flagpole stands. It requires a city employee to be present when a new flag is raised on the flagpole. And it keeps a tight grip on the hand-crank that must be used to raise and lower flags. Boston, in other words, retains control over the flagpole.

And, while Summum and Walker asked whether someone who observes a message would reasonably understand that message to come from the government, the answer to that question is likely to depend on the observer.

Imagine someone who jogs by Boston City Hall every morning. This observer could see a Brazilian flag one day, a Pride flag the next day, and a flag honoring Malcolm X on the next. If they jogged by one day and saw a Christian flag on the same flagpole, theyd probably believe that the state flies a diversity of flags that dont necessarily reflect the citys official views.

Now imagine a one-time visitor to Boston who, lacking any context about why a particular flag is being displayed on a city flagpole, observes a Christian flag flying outside of city hall. That observer would reasonably conclude that the city aligns itself with Christianity potentially to the exclusion of other faiths.

All of which is a long way of saying that, under existing law, Shurtleff is a tough case.

Although there are plausible arguments that the three factors identified in Summum and Walker cut in either direction, the purpose of those factors is to determine who is actually expressing a particular message the government or a private citizen. And, as the Biden administration argues in its brief, its tough to argue that the contested flagpole is really a place where Bostonians can learn about their governments views.

The city, the Justice Department notes, has not exercised any meaningful control over, or selectively chosen among, the flags flown during flag-raising events. The city neither designs the flags that are displayed, nor asks people requesting that their flag be displayed to alter those flags. Indeed, for a dozen years, the city appears to have rubber-stamped applications to display a flag. In most cases, it approved requests without seeing the actual flag that would be displayed.

Boston, in other words, has hardly treated its flagpole as a place where the government displays its own carefully curated messages. Its treated it much more like a public meeting space that anyone is allowed to use except, apparently, for Camp Constitution.

Given this reality, and a majority of the justices sympathy for religious conservatives, it appears likely that Camp Constitution will prevail in Shurtleff.

That said, that doesnt necessarily mean that a Christian flag will soon fly beside Boston City Hall. Shortly after the Supreme Court announced that it would hear the Shurtleff case, the city made an announcement of its own the City of Boston is no longer accepting flag-raising applications. Boston says that it is re-evaluating the program in light of the U.S. Supreme Courts recent decision to consider whether the program as currently operated complies with Constitutional requirements.

Thats an understandable decision because, as mentioned above, if the flagpole is subject to the rule against viewpoint discrimination, then this rule is absolute. Not only would Boston be forbidden from excluding religious flags, it would also be forbidden from rejecting swastikas, Confederate flags, or flags endorsing the failed January 6 effort to install former President Donald Trump as an unelected leader.

This outcome might have been avoided if Boston had maintained more control over its own flagpole although any exclusion of a conservative Christian group could still run into problems with a conservative Supreme Court. But, under the facts of this particular case, Boston wasnt even able to convince the Biden administration to take its side.

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Supreme Court: The Christian right brings a case it deserves to win - Vox.com

Updated Information

Find a statement from the Vigo County Health Department at the bottom of this story.

VIGO COUNTY, Ind. (WTHI) - We now know some of the next steps forward in the lawsuit against the Vigo County Health Department.

We first told you about this lawsuit in late October of last year.

Vigo County resident Doug Springer filed a federal lawsuit against the health department, claiming it violated his rights by banning him from its Facebook page.

Springer says in January of 2021, he commented on a health department post involving COVID-19 cases in the county. It's an action he claims got him banned.

A pre-trial conference is set for Monday, January 24, via telephone. By Monday, those involved need to file a proposed case management plan. It will include deadlines for witnesses and evidence.

Springer said he reacted to a Facebook post from the department, writing that positive COVID-19 test results aren't the same as cases of sick patients.

Court documents say, Springer, to the best of his recollection, posted the following:

"They are NOT cases; they are positive test results and the majority of them will never get sick from the virus. The very fact that the number of positives without accompanying illness is so high shows that the virus is much less dangerous than it is being portrayed."

When the health department banned him from the page, the lawsuit claims that it hid his previous comments from public view. It also continues to ban him from making new comments.

The lawsuit claims the actions from the Vigo County Health Department violate Springer's rights under the First Amendment. It goes on to say the department's actions represent improper viewpoint-based discrimination.

He's asking to be unbanned from the health department's Facebook page and for all of his comments to be restored.

In court documents, the Vigo County Health Department says the following:

"The Health Department admits the decision to prevent the plaintiff, Mr. Springer, from commenting on the Facebook Page of the Health Department is based on the belief that Mr. Springer was using the Health Departments Facebook platform to engage in disinformation and unprotected speech regarding the severity of the COVID-19 pandemic. Nothing prevents Mr. Springer from posting on his own Facebook page his feelings and issues surrounding the COVID-19 pandemic...The plaintiffs statement indicating that this disease was much less dangerous than it was being portrayed is a message the Health Department is not willing to tolerate on its Facebook Page for anyone"

See the full document below.

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Pre-trial conference set for a federal First Amendment lawsuit against the Vigo County Health Department - WTHITV.com

Former President Donald Trump held his first political rally of the new year in Arizona on Friday, continuing to insist that he had won the 2020 election without evidence.

At the large rally in Florence, Ariz., Trump again claimed that he had actually won the state in 2020, despite having lost to Joe Biden 49.4 percent to 49.1 percent. Trump won the state handily in 2016 against Hillary Clinton by over 4 percentage points.

I love Arizona. We had a tremendous victory in Arizona that was taken away and I just want to wish everybody a happy New Year. Were going to have, I think, a great year, Trump said shortly after taking the stage to loud cheers.

Last year we had a rigged election and the proof is all over the place, he continued. We have a lot of proof and they know its proof. They always talk about the Big Lie theyre the Big Lie.

The Big Lie is a lot of bull****, thats what it is, he said to more cheers.

The ex-presidents claims came one day after officials from Arizonas second-largest county concluded that none of the 151 cases they reviewed merited criminal charges.

While PCAOs investigation documented instances of these voters knowingly submitting more than one ballot, there is little to no evidence that they acted with the awareness that their actions would or could result in multiple votes being counted, said Pima County Attorney Laura Conover in a statement on Friday. What our investigation revealed was the genuine confusion about the electoral process, particularly relating to mail-in and provisional ballots, and the genuine fear, for a variety of reasons, that their initial vote would not count.

According to an investigation by the Associated Press,fewer than 200 cases of potential fraud in Arizona had been identifieduntil last week, when election officials in Maricopa County the states largest said they had discovered 38 potential voting fraud cases during an exhaustive review of 2.1 million ballots. Those cases were sent to the state attorney generals office for review.

Trump also mentioned the Jan. 6 Capitol Hill rioters, whom he said were being persecuted for expressing their First Amendment rights when they disrupted congress certification of the electoral votes that would officially make Biden president.

On top of it all, people are being persecuted for using freedom of speech to talk about the corrupt election but more and more information is coming out and its coming out far worse than anyone ever thought it could be.

He said, it would be a lot easier for me to go out and enjoy my life and say you know what? we did great. You know I ran twice and I won twice and we did better the second time, he claimed.

Earlier in the week, Trump abruptly ended an interview with National Public Radio after the outlet pressed him on his repeated claims that the 2020 election was stolen from him by voter fraud.

At the desert rally, he threw his support behind GOP gubernatorial candidate Kari Lake, who pushed Trumps stolen election narrative and has threatened to throw the states top election official in prison.

Arizona Rep. Paul Gosar, a vehement Trump supporter and 2020 election results denier, also took the stage. Gosar was was censured by House Dems and stripped of his committee assignments in November after he tweeted a video depicting himself as an anime character assassinating progressive New York Rep. Alexandria Ocasio-Cortez and attacking President Biden.

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Trump repeats claims that 2020 election was stolen at first rally of new year - New York Post

After more than a year, a former Army National Guard officer and current Army reservist has had an official reprimand that he received from his chain of command for attending a protest during the summer of 2020 overturned.

Capt. Alan Kennedy, an Army reservist who was serving with the Colorado Army National Guard when he attended a Black Lives Matter rally in 2020, called the decision a victory for the First Amendment.

Kennedy had initially received a general officer memorandum of reprimand, or GOMAR, from the head of the Colorado Army National Guard for his actions. That action was reversed following a decision from the Department of the Army Suitability Evaluation Board.

The issue began more than 18 months ago, on May 30, 2020, when Kennedy who was not on duty at the time as a Colorado Army National Guard officer participated in a protest in Denver. During the protest, Denver police began tear-gassing the crowd. Kennedy later recounted his experiences in an editorial column for the Denver Post. Service members are normally not allowed to use their uniform or rank to inform public statements.

The op-ed launched an investigation by Col. Charles Beatty, chief of staff of the Colorado Army National Guard, into whether Kennedy had violated Department of Defense Instruction 1325.06, which prohibits service members, even when off duty, from participating in demonstrations in foreign countries, that are in violation of local laws, or where violence is the likely result.

The initial investigation, conducted by a lieutenant colonel in the Colorado Army National Guard according to documents obtained by Task & Purpose, found that Kennedy had not committed any misconduct. Given that Kennedy was not serving as a National Guard officer either when attending the protest or when publishing the editorial, there was no violation of military regulations.

Shortly after those findings, Beatty overruled the initial investigation and issued Kennedy a temporary local reprimand, arguing that Kennedy should have known that violence was likely to occur at any protest.

The protests that Kennedy attended later became the subject of a civil court case, Abay v. City of Denver, in which a judge found fault with the Denver Police Departments use of tear-gas and projectiles when responding to the demonstrations.

The next month, in July 2020, Kennedy published a second editorial recounting his experience. That launched a second investigation by the Colorado Army National Guard.

By publishing the article and identifying yourself as a service member you violated regulations and provisions of the Colorado Code of Military Justice, and your actions brought disrepute and dishonor upon the COARNG. It is also apparent from the plain language of the article that it was your intent to do so, and thereby to intimidate the command into refraining from lawful use of its authority to investigate, read the reprimand issued by Brig. Gen. Douglas Paul on Sept. 11, 2020.

The GOMOR issued would have essentially ended Kennedys military career, preventing any potential for promotion or further advancement through the ranks.

Kennedy then filed a lawsuit, alleging that the military reprimand represented a violation of his constitutional rights.

That lawsuit also alleged that Kennedys superior officers held that Black Lives Matter protests are inherently violent, asserting that all Black Lives Matter protests begin peacefully and devolve into violent clashes with the police. The lawsuit also triggered a third investigation into Kennedy, which still upheld his GOMAR.

It was clear that I was not representing the views of the military when I wrote those articles, said Kennedy. The Colorado National Guard just didnt like what I wrote.

Kennedy has since transferred to the Army Reserve, currently serving in Virginia.

Soldiers expressing their views in public is not a new issue for the military, but Kennedys case comes at a moment when service members have increased visibility in their personal lives, and the gap between soldiers and civilians is increasingly blurred by social media.

Earlier this summer, Marine Corps. Lt. Col. Stuart Scheller saw his career rapidly go up in flames after taking to social media to decry the pullout from Afghanistan. Seven states are now suing the federal government to protest COVID-19 vaccine mandates for their National Guard personnel.

But its also become a way for service members to call out their leaders. In 2020, a sergeant first class at Fort Hood took to TikTok to discuss toxic leadership conditions in his unit after having been rebuffed by his chain of command. In 2019, Task & Purpose wrote about a Wisconsin Air National Guard master sergeant who spent years trying to call attention to claims of sexual harassment in his unit. For members of the National Guard and Reserves, who only spend a few days a month in uniform, that dichotomy between service time and civilian life is only heightened.

Its just common sense to me that you dont lose your constitutional rights just because you take an oath to defend them, said Kennedy.

Kennedys lawsuit, filed in the United States District Court for the District of Colorado, remains outstanding. It raises a question that while specific to one social movement in this case is increasingly relevant to service members.

Can the government prohibit off-duty, out-of-uniform service members stationed in the United States from peacefully participating in Black Lives Matter and other peaceful protests, if the service members conduct is not in breach of law and order? reads the complaint.

In July 2021, the National Guard Bureau issued a memorandum stating that the regulations under which Kennedy had initially been punished would only to National Guard service members in a title 10 duty status under federal command and control.

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An Army captain fought his chain of command for a year over his free speech rights and won - Task & Purpose

A bill aimed at punishing colleges and universities for violating free speech and academic freedom rules set by Republicans has passed a legislative committee by a party-line vote. This comes after a GOP author amended the legislation to remove provisions that were potentially unconstitutional.

The bill, introduced by state Rep. Rachel Cabral-Guevara, R-Appleton, and Rep. Dave Murphy, R-Greenville, bars technical colleges and universities from enforcing time, place or other restrictions on free speech events happening anywhere on campus except classrooms.

The legislation also requires colleges to survey students annually about First Amendment rights, academic freedom, whether they feel there is perceived political bias at their school or the "campus culture promotes self-censorship."

If anyone feels a college or university violated their rights, the bill allows them, a district attorney or state attorney general to sue the University of Wisconsin Board of Regents or a technical college district board. If a judge rules against a college, the court must award a minimum of $500 in damages and a maximum of $100,000 in damages to plaintiffs.

In addition to financial penalties, if a school violates the bill's regulations, it will be required to notify incoming students that it has "violated the free speech or academic freedom provisions in the Wisconsin statutes."

The bill passed by the Assembly Colleges and Universities Committee on Thursday looked different from the original legislation introduced Dec. 2.

An amendment offered by Rep. Cabral-Guevara removed aspects that were potentially unconstitutional, including a provision that would have allowed legislative committees, like her own, to rule on alleged violations. The amendment also removed a proposal to block state grant funding for scholarships from going to schools found to have violated free speech rights.

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During a Dec. 8 public hearing on the bill, an attorney with the nonpartisan Wisconsin Legislative Council said lawmakers giving themselves judicial authority "very well could be subject to separation of powers issues" and that "it's kind of questionable" whether a legislative committee could restrict financial aid to colleges.

During a meeting of the Assembly Colleges and Universities Committee on Thursday, Rep. Katrina Shankland, D-Stevens Point, said the legislation is unnecessary because First Amendment protections already exist at the federal and state level. She also pointed to a 2017 UW Board of Regents policy that punishes students for repeatedly violating free speech rights of others.

"So, at the end of the day, I do think at least some of the bill authors were more interested in putting forward a bill that was designed to be political and furnish political talking points during the year 2022, to which you can conclude pretty reasonably that it has more to do with outside the building politics than it certainly does within making laws," said Shankland.

Cabral-Guevara pushed back, saying the legislation is needed due to genuine concerns from constituents who said they feel campus environments stifle free speech rights of conservative students or teachers.

"I hope that students and instructors will have a platform in the future, no matter what side you stand on and where you stand, to speak freely their passions and their desires (and) their concerns on the campuses that are supported here in Wisconsin," said Cabral-Guevara.

State Rep. Clint Moses, R-Menomonie, said the majority of professors and instructors at state colleges are "great, great people."

"But there are some that are abusing their position where they're supposed to be encouraging free thought and open discussions," said Moses.

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GOP bill setting free speech rules, punishing colleges that violate them moves forward - Wisconsin Public Radio News