May 2, 2022:- Two new decisions arrived today, one from a unanimous Supreme Court of the United States (SCOTUS) against the City of Boston’s refusal to let an applicant fly a Christian flag from a municipal flagpole, and the other from the Supreme Judicial Court (SJC) of Massachusetts regarding the City of Lynn’s insistence that a busines owner conduct her business be-masked.
For Shurtleff v. City of Boston click here, and for City of Lynn v. Murrell click here.
Shurtleff v. City of Boston
SCOTUS held that the City of Boston’s refusal to approve Harold Shurtleff’s request to raise a Christian flag on a City flagpole abridged his right to freedom of speech. The City had allowed people to use the City flagpole to fly the flags of other countries, e.g. Venezuela, and various secular organizations, e.g. Metro Credit Union, but claimed that flying this particular flag could constitute “government speech.” Justice Alito’s concurrence addresses this succinctly:
The flags flown reflected a dizzying and contradictory array of perspectives that cannot be understood to express the message of a single speaker. For
example, the City allowed parties to fly the gay pride flag, but it allowed others to fly the flag of Ethiopia… a country in which “homosexual act[s]” are punishable by “imprisonment for not less than one year.”
The prize for the pithiest observation, however, goes to Justices Thomas and Gorsuch in their concurrence. To see what I mean, scroll down to page 40.
City of Lynn v. Murrell
In this case, the City of Lynn fined business owner Ariana Murrell for her no-mask policy, which defied the Commonwealth mask mandate. How did the City find out? Here are the words in the decision that made my heart sink:
The Lynn police department received multiple complaints about Murrell’s no-mask policy. The Lynn police investigated and corroborated these complaints with their own independent and documented
observations of Murrell’s practices at Liberty Tax. Members of the public also contacted the city’s board of health (board) to notify it of Murrell’s no-mask policy.
This practice (ratting, snitching, informing, whatever you want to call it) was the sort of thing that the bien pensant still seemed to care about as late as 2019, judging by this article in the Atlantic. But no longer.
The habit of informing on one another is now suitably engrained, but the mask mandates themselves have gone, at least for now.
And because the mandates are no more, the SJC decided that the issues were moot. But, in a somewhat encouraging response to Ms. Murrell’s argument that the issues remain alive because the State can reimpose a mask mandate whenever it feels like, the SJC implied (albeit ambiguously) that the widespread availability of treatments makes new mask mandates less likely. In addition, the court cited the SCOTUS decision on the OSHA vaccine-or-mask mandate, stating with sub-optimal clarity:
In light of this decision, we cannot say with any degree of certainty that our understanding of OSHA’s authority to issue general COVID-19 regulations, and the interrelated issue of preemption, would be the same if the Governor were to issue another
Statewide mandate.
For my post on that SCOTUS decision, click here.
In a glass half-full frame of mind, I think that the SJC was signaling that in reviewing any new mask mandates, it would take into account the changed jurisprudential landscape and would determine whether the facts (remember those?) really justify the mandates. Or perhaps I am getting carried away with hope.
Peter Vickery, Esq., 