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SOUTHWICK In an effort to avoid unwanted litigation, Select Board member Jason Perron has been working for several months on language to create a policy that would guide the town on flags that could be flown in front of Town Hall.

Its a work in progress, Perron said about the proposed policy.

He said the motivation for drafting a policy outlining what flags can be flown on the single pole at Town Hall came from a lawsuit filed against the city of Boston in 2017. A Christian group sued after Boston 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. The city said flying a Christian 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 state District Court and a U.S. Appeals Court, which both upheld the lower courts ruling, and then to the U.S. Supreme Court, which ruled the groups First Amendment rights had been violated.

With that history, Perron said that during a meeting of the Massachusetts Municipal Association in 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.

When discussing the proposed flag policy this week, Perron stressed to residents that it is still being developed and tweaked.

Were going to have to dance around it and be careful it is a work in progress, Perron said, adding that the number of days a flag might fly has yet to be determined.

According to the proposal: The choice of which flag to raise on town-owned property is hereby declared to be governmental speech, communicating a message to the public, to which the strictures of the First Amendment do not apply.

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.

The operative term in the proposed policy is public forum.

A strict interpretation of public forum means speech that occurs on governmental property, on which the government cannot place content-based restrictions.

If it can establish that flying a flag at Town Hall is not defined as a public forum, the Select Board can choose to raise, or decline to raise, a flag without running afoul of the First Amendment, according to the fourth sentence of the proposed policy: Accordingly, the Select Boards 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 the policy shall not be interpreted as designating any town-owned property as a public forum for the flying flags.

The flags currently approved to fly on town-owned property are the U.S. flag, the state flag, the town flag, flags of branches of the U.S. military, the prisoners of war and missing in action (POW/MIA) flag, or flags of officially recognized veterans organizations, such as Disabled American Veterans flag and similar.

For any other organization that wants to fly its flag at Town Hall, the proposed policy will require a written request and paying a fee that has yet to be determined.

The applications will be reviewed by the Select Board and if the request is denied, a written explanation will be provided to the organization or group.

The policy provides the type of flags that may be flown: Those related to special circumstances; town-based events; recognition of days of honor that might include Autism awareness, Armed Forces Day, Pearl Harbor Day, 9/11 Remembrance Day, or flags supporting nonprofit organization.

No commercial business flags or promotional flags or banners may be flown, according to the proposed policy.

There is no time frame for adoption of the policy, but it has been included for several weeks on the Select Boards agenda.

Link:
Flag flying policy a work in progress, says Southwick Select Board member - MassLive.com