Did Huntington Beach Ban the Pride Flag?
Technically, Yes, But It's Much More Complicated Than That.
In Huntington Beach, passions have flared under claims that the city has banned the flying of the Pride flag at city hall. However, this claim does not entirely capture the situation and overlooks the nuanced constitutional restrictions on government speech.
Coverage by the LA Timesmbore the misleading headline "Huntington Beach votes to ban Pride flags at city buildings," the narrative at first glance suggests a pointed exclusion of the Pride flag from municipal properties.
However, the amendment does not outright ban the Pride flag but rather establishes a policy that limits the flags permissible on city property to include only the American flag, the California state flag, the Orange County flag, the city flag, certain military flags, and the Olympic flag.
This legislative change was presented to the electorate and was ratified by a majority of 58%. The backdrop of this amendment traces back to a 2021 City Council decision to fly the Pride flag annually during June, a move that was heralded as an acknowledgment of LGBTQ+ rights.
The crux of the debate, however, transcends the local political landscape to touch on fundamental constitutional questions, particularly regarding what is deemed government speech.
The Supreme Court's decision in Shurtleff v. City of Boston1, is highly relevant to this issue. The unanimous ruling elucidated that the City of Boston, by denying Camp Constitution the right to raise a Christian flag on a city hall flagpole—previously accessible for public expression by various groups—breached the Free Speech Clause of the First Amendment.
The Court determined that Boston's flag-raising program was a manifestation of government speech and that excluding religious viewpoints amounted to viewpoint discrimination, contravening First Amendment protections.
The principle of "content neutrality" in the regulation of free speech emerges as a critical consideration in the Huntington Beach flag displays. Governments are mandated to maintain a neutral stance in regulating the exercise of free speech on public forums.2
Should a public space, such as a flagpole, be designated for expressive purposes, it must be made accessible for all forms of expressive speech without favoritism or prejudice.
Consequently, if the Huntington Beach Council were to permit a religious flag while denying the Pride flag, it would constitute a clear instance of content-based discrimination, thereby infringing upon constitutional mandates.
The portrayal of the charter amendment by the LA Times as a ban on the Pride flag does not fully encapsulate the nuanced legal and constitutional dynamics at play. More accurately, the council has adopted an approach that, thus far, adheres to content-neutral criteria in determining which flags are flown on city property.
Nonetheless, the council's retention of the prerogative to selectively approve additional flags for display introduces a potential for future constitutional entanglements. Time will tell.
Shurtleff v. City of Boston, 596 U.S. ___ (2022), the United States Supreme Court unanimously held that the City of Boston engaged in viewpoint discrimination, violating the Free Speech Clause of the First Amendment, by refusing to allow the Christian flag to be raised on a city hall flagpole available to other groups for public expression.
Rosenberger v. University of Virginia, 515 U.S. 819 (1995), is a landmark United States Supreme Court case where the Court held that a university's refusal to fund a student publication because it was a religious magazine violated the First Amendment's Free Speech Clause. This decision underscored the principle of content neutrality in government speech, establishing that the government cannot discriminate against speech based on its viewpoint, even in the context of government-funded programs.