Shurtleff v. City of Boston

United States Court of Appeals
For the First Circuit

No. 18-1898

HAROLD SHURTLEFF, and CAMP CONSTITUTION,
a public charitable trust,

Plaintiffs, Appellants,

v.

CITY OF BOSTON, and GREGORY T. ROONEY, in his official
capacity as Commissioner of the City of Boston
Property Management Division,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Torruella, Selya, and Lynch,
Circuit Judges.

Mathew D. Staver, with whom Roger K. Gannam, Horatio G. Mihet,
Daniel J. Schmid, and Liberty Counsel were on brief, for
appellants.
John Eidsmoe, Foundation for Moral Law, on brief for
Foundation for Moral Law, amicus curiae.
Daniel M. Ortner, Deborah J. La Fetra, and Pacific Legal
Foundation, on brief for Pacific Legal Foundation, amicus curiae.
Robert S. Arcangeli, Assistant Corporation Counsel, City of
Boston Law Department, with whom Eugene L. O'Flaherty, Corporation
Counsel, was on brief, for appellees.
 Richard B. Katskee, Carmen N. Green, Patrick Grubel,
Americans United for Separation of Church and State, Jeffrey I.
Pasek, Cozen O'Connor, Steven M. Freeman, David L. Barkey, Amy E.
Feinman, Anti-Defamation League, Amrith Kaur, Cindy Nesbit and
Sikh Coalition, on brief for Religious and Civil-Rights
Organizations, amici curiae.

June 27, 2019

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 TORRUELLA, Circuit Judge. This appeal arises from the

denial of a preliminary injunction that would have required the

City of Boston ("City") to temporarily raise a "Christian flag" on

a government-owned flagpole in front of its City Hall. Plaintiff-

appellant Harold Shurtleff is the director of Camp Constitution,

a volunteer association (and also a plaintiff-appellant here)

established in 2009 to "enhance understanding of the country's

Judeo-Christian moral heritage, the American heritage of courage

and ingenuity, [and] the genius of the United States Constitution,"

among other things. To commemorate Constitution and Citizenship

Day in September 2017, Shurtleff, in his role as director of Camp

Constitution, organized an event to be held at the plaza in front

of City Hall. Shurtleff alleges he intended this event to be a

celebration of the Christian community's civic and social

contributions to the City and the Commonwealth of Massachusetts,

as well as of Christian support for religious tolerance, the rule

of law, and the United States Constitution. Shurtleff sought a

permit from the City to raise a Christian flag1 on one of the City

Hall Plaza flagpoles during the proposed celebration. That flag

would have been raised next to poles flying the United States and

1 The parties refer to this flag as "the Christian flag." We use
the term "a Christian flag" throughout. In doing so, we do not
suggest that all Christian denominations accept that flag as the
flag of Christianity. There is no evidence of that before us.

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Massachusetts flags and in place of the City of Boston flag,

normally flown there.

The City denied Shurtleff's flag-raising request, but

otherwise allowed him and Camp Constitution to host their event at

City Hall Plaza. Shurtleff and Camp Constitution filed suit

almost a year later, raising Free Speech, Establishment Clause,

and Equal Protection claims, and seeking a preliminary injunction

to prevent the City from denying them a permit to raise the flag.

The district court denied the injunction and we now affirm.

I.

City Hall Plaza is at the entrance of Boston's City Hall.

A trio of eighty-three-foot tall poles that the City owns and

controls stands in the Plaza. Two of the poles usually fly the

United States and Massachusetts flags. At issue here is the third

pole, which displays the City's flag except when temporarily

replaced by another flag upon the request of a third-party person

or organization. Requests to replace the City's flag with another

flag are often accompanied by a proposed third-party event to take

place at a City-owned venue, such as the Plaza. In the past, the

pole in dispute has displayed country flags (according to the

complaint, those of Albania, Brazil, Cuba, Ethiopia, Italy,

Mexico, Panama, the People's Republic of China, Peru, Portugal,

and also that of the territory of Puerto Rico) as well as the flag

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of the Chinese Progressive Association, the LGBT rainbow flag, the

transgender rights flag, the Juneteenth flag commemorating the end

of slavery, and that of the Bunker Hill Association.

Some of these third-party flags contain what Shurtleff

alleges is religious symbolism. For instance, the Portuguese flag

contains "dots inside the blue shields represent[ing] the five

wounds of Christ when crucified" and "thirty dots that represents

[sic] the coins Judas received for having betrayed Christ." The

Bunker Hill Flag contains a red St. George's cross. And the City

flag itself includes the Boston seal's Latin inscription, which

translates to "God be with us as he was with our fathers." But

nothing in the record indicates that the City has ever allowed the

flag of any religion to be raised on the flagpole at issue.2

Interested parties must apply to the City for a permit

before they can hold an event and/or raise a flag at the Plaza.

The City has published guidelines for permit applicants on its

website. According to the guidelines, permits may be denied for

several reasons, including that the applicant plans to host illegal

activities on City property or if the proposed event poses a danger

to public health and safety. Applications may also be denied if

2 Shurtleff avers that, in 2012, he applied for and received a
permit to display a flag on the pole at issue here. He does not
specify, however, the type of flag that the City allowed him to
raise.

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they do not comply with other relevant permit requirements,

ordinances, or regulations. The Office of Property and

Construction Management leads the application review process and

is charged with ensuring that all applications meet City

guidelines. And the Commissioner of Property Management himself

reviews flag-raising applications for the City Hall Plaza poles to

ensure that they are "consistent with the City's message, policies,

and practices." There is no written policy regarding which flags

may be raised on the City Hall poles.

On July 28, 2017, Shurtleff emailed the City requesting

a permit to "raise the Christian Flag on City Hall Plaza."

Shurtleff proposed several dates in September 2017 for the flag

raising and explained that Camp Constitution would sponsor the

event, which was also to include "short speeches by some local

clergy focusing on Boston's history." Shurtleff's email to the

City also included a photo of a Christian flag to be raised, which

has a white field and a red Latin cross inside a blue canton. On

September 5, 2017, Shurtleff received an email response from the

City denying his request to raise the flag. The City's response

did not offer a reason for the denial.

Unsatisfied, Shurtleff emailed the City the next day to

inquire about the "official reason" for denying his application.

Two days later, on September 8, Shurtleff received an email from

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Gregory T. Rooney, the City's Commissioner of Property Management,

explaining that his request was denied because "[t]he City of

Boston maintains a policy and practice of respectfully refraining

from flying non-secular flags on the City Hall flagpoles."

Rooney's email explained that such a "policy and practice is

consistent with [both] well-established First Amendment

jurisprudence . . . [and] with [the] City's legal authority to

choose how a limited government resource, like the City Hall

flagpoles, is used." Before signing off, Rooney informed

Shurtleff that the "City would be willing to consider a request to

fly a non-religious flag, should your organization elect to offer

one." Shurtleff's plan to host an event at City Hall Plaza,

however, was allowed to go forward.

Around September 13, 2017, Shurtleff submitted a renewed

event and flag-raising application to the City, asking to use City

Hall Plaza and its flagpoles for the "Camp Constitution Christian

Flag Raising." Shurtleff's event description explained that the

"Christian flag is an important symbol of our country's Judeo-

Christian heritage" and that the aim of the flag raising was to

celebrate "our Nation's heritage and the civic accomplishments and

social contributions of the Christian community to the

Commonwealth of Massachusetts, religious tolerance, the Rule of

Law, and the U.S. Constitution." On September 14, Shurtleff's

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counsel sent a letter to Boston Mayor Martin Walsh -- with copy to

other City officials -- that enclosed Shurtleff's September 13

application to celebrate a "Christian Flag Raising." This letter

requested that the City approve Shurtleff's flag-raising

application on or before September 27, 2017. The City neither

issued a permit nor replied in reaction to Shurtleff's September 13

and 27 communications. Since then, Shurtleff has not applied to

hold any events on City grounds, with or without a flag.

Shurtleff and Camp Constitution filed suit on July 6,

2018, seeking injunctive relief, declaratory relief, and damages

against the City and Rooney in his official capacity as

Commissioner of the City's Property Management Division.

Appellants aver, inter alia, that the City "violated [their] First

Amendment right to Freedom of Speech by preventing [them] from

displaying the Christian flag as part of a celebration of the

Christian community and America's Judeo-Christian heritage to be

held at [the City's] designated public fora at City Hall Plaza and

[its] flagpoles." Shurtleff and Camp Constitution moved for a

preliminary injunction on July 9, 2018. The district court heard

argument on August 9, 2018, and issued an opinion denying their

request on August 29, 2018. Shurtleff v. City of Bos., 337 F.

Supp. 3d 66, 79 (D. Mass. 2018). Among other things, the court

held that the preliminary injunction could not proceed because the

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"City's selection and presentation of flags on the City flagpole

constitute government speech," id. at 73, and government speech

escapes scrutiny under the Free Speech Clause.

II.

Before it grants a preliminary injunction, a district

court is required to consider (1) the movant's likelihood of

success on the merits; (2) the likelihood of the movant suffering

irreparable harm; (3) the balance of equities; and (4) whether

granting the injunction is in the public interest. Díaz-

Carrasquillo v. García-Padilla, 750 F.3d 7, 10 (1st Cir. 2014).

And when faced with an interlocutory appeal, as we are in this

case, we review the district court's decision to deny a preliminary

injunction for abuse of discretion but review its findings of fact

for clear error and its conclusions of law de novo. Am. Freedom

Def. Initiative v. Mass. Bay Transp. Auth., 781 F.3d 571, 578 (1st

Cir. 2015). Because Shurtleff and Camp Constitution did not

"'establish a strong likelihood that they will ultimately prevail'

on the merits of their First Amendment claim[s]," we affirm the

district court's denial of their request for a preliminary

injunction.3 Id.(quoting Sindicato Puertorriqueño de Trabajadores,

SEIU Local 1996 v. Fortuño, 699 F.3d 1, 10 (1st Cir. 2012)).

3 Since the "sine qua non of th[e] four-part inquiry is likelihood
of success on the merits," New Comm Wireless Servs., Inc. v.
SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002), and appellants

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 III.

The centerpiece of Shurtleff's argument on appeal is

that the City's choice of which flags to raise temporarily in place

of the usual Boston flag on the City Hall Plaza flagpole at issue

does not constitute government speech and that the flagpole is

instead a designated public forum. We tackle first his challenge

to the district court's finding of government speech.

A.

Shurtleff argues that neither Walker v. Texas Division,

Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015), nor

Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) -- the

pair of recent cases the district court relied on to conclude that

the City's choice of which flags to fly on the flagpole at issue

is government speech -- supports a government speech label for a

third-party group's temporary display of a flag owned by the group.

Shurtleff explains that Summum resolved that the placement of

"permanent" monuments in a public park was a form of government

speech, which is inapposite to "temporarily" raising flags on a

city-owned pole. Further, Shurtleff argues that Walker reaffirmed

the relevance of permanence for finding government speech.

failed to meet that burden, we do not address the final three
factors of the inquiry for preliminary injunctive relief. See Am.
Freedom Def. Initiative, 781 F.3d at 578 n.4 (following this
approach).

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Shurtleff also maintains that the government "ownership" and

"control" elements that the Court identified in Walker and Summum

as creating government speech are not present for occasionally

displayed third-party flags on the City Hall flagpole. We

disagree with each of Shurtleff's points, but before responding we

find it helpful to revisit in some detail the contours that the

Supreme Court has established for the government speech doctrine.

In Summum, the Court considered "whether the Free Speech

Clause of the First Amendment entitles a private group to insist

that a municipality permit it to place a permanent monument in a

city park in which other donated monuments were previously

erected." 555 U.S. at 464. The Free Speech Clause did not mandate

that result, the Court concluded, because "the display of a

permanent monument in a public park is not a form of expression to

which forum analysis applies" since it is "best viewed as a form

of government speech." Id. The Court reached that conclusion

after making three observations. First, that "[g]overnments have

long used monuments to speak to the public." Id. at 470. Second,

that "[p]ublic parks are often closely identified in the public

mind with the government unit that owns the land," which is the

reason why "there is little chance that observers will fail to

appreciate the identity of the speaker" as the government when

they see a monument at a public park. Id. at 471-72. And third,

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that the government "has 'effectively controlled' the messages

sent by the monuments in the Park by exercising 'final approval

authority' over their selection." Id. at 473 (citing Johanns v.

Livestock Marketing Assn., 544 U.S. 550, 560-61 (2005)).

The Court reaffirmed the Summum framework six years

later in Walker. That case originated after a nonprofit

organization applied to the Texas Department of Motor Vehicles

Board for a specialty license plate featuring the Confederate flag.

The Board rejected the application, 135 S. Ct. at 2244, and members

of the nonprofit filed suit alleging that the rejection violated

their free speech rights. Not so, said the Court, holding that

"Texas's specialty license plate designs constitute government

speech," for which the Board was entitled to refuse issuing license

plates that feature the Confederate flag. Id. at 2253. The Court

pinpointed three factors as relevant to identifying government

speech in light of Summum: (1) whether the government has

traditionally used the message or conduct at issue to speak to the

public; (2) whether persons would interpret the speech as conveying

some message on the government's behalf; and (3) whether the

government maintains control over the selection of the message.

See id. at 2247. Applying these factors, the Court concluded that

the license plates are government speech because (1) "they long

have communicated messages from the States," id. at 2248; (2) they

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"are often closely identified in the public mind with the [State],"

id. (citing Summum, 555 U.S. at 472); and (3) "Texas maintains

direct control over the messages conveyed on its specialty plates,"

id. at 2249. The Court later remarked that Walker "likely marks

the outer bounds of the government-speech doctrine." Matal v.

Tam, 137 S. Ct. 1744, 1760 (2017).

The Summum/Walker three-part test controls here and each

of its factors strongly favors a finding that the City engages in

government speech when it decides which flags to display in place

of the City flag on the City Hall flagpole. This case lies well

within the established bounds of the government speech doctrine.

First, the government has long used flags to communicate

messages. See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319

U.S. 624, 632 (1943) ("The use of an emblem or flag to symbolize

some system, idea, institution, or personality, is a short cut

from mind to mind. Causes and nations, political parties, lodges

and ecclesiastical groups seek to knit the loyalty of their

followings to a flag or banner . . . ."); Griffin v. Sec'y of

Veterans Affairs, 288 F.3d 1309, 1324 (Fed. Cir. 2002) ("We have

no doubt that the government engages in speech when it flies its

own flags over a national cemetery, and that its choice of which

flags to fly may favor one viewpoint over another."). For

instance, "Congress has provided that the flag be flown at half-

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staff upon the death of the President, Vice President, and other

government officials 'as a mark of respect to their memory.'"

Texas v. Johnson, 491 U.S. 397, 427 (1989) (Rehnquist, C.J.,

dissenting) (quoting 36 U.S.C. § 175(m) (current version at 4

U.S.C. § 7(m))). And when a visiting dignitary comes to

Washington for a state or official visit, Blair House (the

President's guest house) flies the flag of the dignitary's country.

Mary Mel French, United States Protocol 298 (2010).4

4 Of course, flags themselves communicate a message. In a 1944
Presidential Proclamation, President Franklin Roosevelt stated,
"The flag of the United States of America is universally
representative of the principles of justice, liberty, and
democracy enjoyed by the people of the United States."
Proclamation No. 2605, 9 Fed. Reg. 1957 (Feb. 22, 1944). Congress
has provided that the American "flag represents a living country
and is itself considered a living thing." 4 U.S.C. § 8(j). When
United States Marines reached the top of Mount Suribachi at Iwo
Jima, "they raised a piece of pipe upright and from one end
fluttered a flag." Johnson, 491 U.S. at 425-26 (Rehnquist, C.J.,
dissenting). And troops marked their successful landing at Inchon
during the Korean war with the raising of an American flag. Id.
at 426.

Shurtleff's proposed flag is no different: it was designed to
incorporate certain Christian symbolism, including the Latin
cross. See Trunk v. City of San Diego, 629 F.3d 1099, 1110 (9th
Cir. 2011) (recognizing the Latin cross as "the preeminent symbol
of Christianity"); cf. Barnette, 319 U.S. at 632 ("[T]he church
speaks through the Cross, the Crucifix, the altar and shrine, and
clerical raiment."); Salazar v. Buono, 559 U.S. 700, 747 (2010)
(Stevens, J., dissenting) ("We have recognized the significance of
the Latin cross as a sectarian symbol, and no participant in this
litigation denies that the cross bears that social meaning.").

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 The City partakes of similar practices and has

historically used the City Hall Plaza pole at issue here to convey

a message when the City flag is replaced with another flag. For

instance, the City flew the flag of Portugal on that pole to

recognize "the Portuguese community's presence and importance in

the State of Massachusetts." The City also sometimes displays its

municipal flag to signify that its mayor is present at a given

event. It therefore follows that the City recognizes flag flying

as a symbolic act and that it uses flags -- in particular those

raised on the City Hall Plaza pole -- to speak to the public.

Next, we examine whether an observer would identify the

City as the "speaker" when she sees a third-party flag, like a

Christian flag, raised in front of City Hall and flying alongside

the United States and Massachusetts flags. See Walker, 135 S. Ct.

at 2249; Summum, 555 U.S. at 471.5 We have little doubt that the

third-party flag's message would be attributed to the City.

5 In his Summum concurrence, Justice Souter proposed using a
"reasonable person" test to analyze the attribution prong. See
Summum, 555 U.S. at 487 (Souter, J., concurring) ("[T]o say when
speech is governmental, the best approach that occurs to me is to
ask whether a reasonable and fully informed observer would
understand the expression to be government speech, as distinct
from private speech the government chooses to oblige by allowing
the monument to be placed on public land."). If the Court adopts
this standard in a future case, it would be easily met here.

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 If the observer arrived in time, she could well see a

City employee lower the Boston flag and replace it with a third

party's flag. The replacement flag would fly eighty-three feet

into the sky only steps away from the entrance to Boston's seat of

government, City Hall. That height would make the flag visible

from far away, even from places that have no view of what is

happening on the plaza below. And the third-party flag would keep

company with the United States flag and the flag of the

Commonwealth of Massachusetts, two powerful governmental symbols.

"In this context, there is little chance that observers will fail

to appreciate the identity of the speaker" as being the City.

Summum, 555 U.S. at 471.

Lastly, we assess if the City maintains control over the

selection of the messages it conveys on its City Hall flagpole.

See Walker, 135 S. Ct. at 2247. Shurtleff argues that, to find

government speech, Summum and Walker require the government to

take physical control over previously private expression, control

every aspect of its design and maintenance, and require

relinquishment of private ownership rights. We reject the

argument as a misreading of those cases. See Sutliffe v. Epping

Sch. Dist., 584 F.3d 314, 331 (1st Cir. 2009) (finding that links

placed on a government website were government speech and

emphasizing that the town "controlled the content of [the] message

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by exercising final approval authority over the [] selection of

the hyperlinks on the website"); cf. Ridley v. Mass. Bay Transp.

Auth., 390 F.3d 65, 82 (1st Cir. 2004) (rejecting the plaintiffs'

argument that the MBTA had created a public forum in part because

"[t]he MBTA's policy clearly evidenced an intent to maintain

control over the forum").

The record is clear that the City owns the flagpole at

issue and that it controls which third-party flags are raised in

place of the City flag. Interested persons and organizations must

apply to the City for a permit before they can raise a flag on

this flagpole. The City's Office of Property and Construction

Management then reviews all applications to ensure that they comply

with governing guidelines, and the Commissioner of Property

Management himself screens flag-raising requests for the pole at

issue to ensure that those requests are "consistent with the City's

message, policies, and practices." And unlike many other public

spaces controlled by a permitting process, for access to which the

City might grant thousands of applications a year, the flagpole at

issue is only rarely occupied by a third-party flag. Appellant's

complaint lists only fifteen instances, over a period of years, in

which the City has granted a third party's flag-flying request.

That rarity highlights the City's tight control over the flagpole

in question and that it engages in symbolic speech as to the

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replacement flags it allows. Moreover, the absence of a written

policy outlining the content of the flags that may be raised on

City Hall Plaza is irrelevant to the government speech analysis.

Summum, 555 U.S. at 473 (finding that the City there effectively

controlled its message even though it did not adopt an express

policy as to which monuments it would accept or reject until after

rejecting the plaintiff's proposed monument); see also Sutliffe,

584 F.3d at 332 (noting that the absence of a written policy is

"irrelevant to whether the [City's] actions constitute government

speech").

A straightforward assessment under the Summum/Walker

factors thus requires us to conclude that the City's decision about

which flags to display on the flagpole at issue is likely

government speech. However, as we noted before, Shurtleff insists

that the flagpole cannot convey government speech because the flags

raised on it are those of third parties and they are only displayed

temporarily. This argument is unavailing. First, the fact that

the flags are privately owned (or at least not owned by the City)

changes nothing because the City enjoys the "same freedom to

express its views when it receives assistance from private sources

for the purpose of delivering a government-controlled message"

like that which the City Hall flagpole communicates. Summum, 555

U.S. at 468. Second, Shurtleff is wrong to suggest that permanence

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is required for there to be government speech. Shurtleff contends

that the Summum Court emphasized the permanent nature of monuments

as supporting a finding of government speech, and that Walker

reiterated the relevance of permanence in government speech

analysis. But the Walker Court actually clarified that permanence

is not a necessary element of its government speech framework.6

See Walker, 135 S. Ct. at 2249 ("That is not to say that every

element of our discussion in Summum is relevant here. For

instance, in Summum we emphasized that monuments were 'permanent'

. . . .").

Shurtleff argues that this is a case in which the City

is using government speech doctrine "as a subterfuge for favoring

certain private speakers over others based on viewpoint," Summum,

555 U.S. at 473, or as a means of "silenc[ing] or muffl[ing] the

expression of disfavored viewpoints," Matal, 137 S. Ct. at 1758.

We think not. The record shows that the City has "regularly"

granted permission for religious events to be held on City Hall

Plaza. And the City has not refused Shurtleff permission to hold

6 We also note that Shurtleff's argument takes Summum's discussion
of permanence out of context. There, it was important that the
monuments were permanent because public parks could "accommodate
only a limited number of permanent monuments." Summum, 555 U.S.
at 478. Thus, the real issue was not permanence, but space. See
Walker, 135 S. Ct. at 2261 (Alito, J., dissenting) ("A final factor
that was important in Summum was space.").

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an event at City Hall Plaza that celebrates Christianity and

includes speeches by local clergy. Nor has it refused him the

opportunity to request to raise a flag that conforms with City

policy.

We now turn to Shurtleff's argument that the government

speech doctrine is inapplicable here because the City has

designated the flagpole as a public forum. Shurtleff's success

on this theory is also unlikely because that argument is precluded

by our government-speech finding. Walker, 135 S. Ct. at 2250

("Because the State is speaking on its own behalf, the First

Amendment strictures that attend the various types of government-

established forums do not apply.").

However, the argument also fails under traditional

public-forum analysis. "The government does not create a public

forum by inaction or by permitting limited discourse, but only by

intentionally opening a nontraditional forum for public

discourse." Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473

U.S. 788, 802 (1985). To ascertain if the City has designated the

flagpole as a public forum, we look to the City's "policy and

practice" and may also consider "the nature of the [flagpole] and

its compatibility with expressive activity." See id. However,

"[w]e will not find that a public forum has been created in the

face of clear evidence of a contrary intent . . . nor will we infer

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that the government intended to create a public forum when the

nature of the property is inconsistent with expressive activity."

Id. at 803.

In Shurtleff's view, the City Hall pole at issue is a

designated public forum because the application to request a permit

for its use states that, "[w]here possible, the Office of Property

and Construction Management seeks to accommodate all applicants

seeking to take advantage of the City of Boston's public forums."

But other than that statement, the record is barren of any

indication that the City "intentionally open[ed] a nontraditional

forum," on that flagpole, "for public discourse." Sutliffe, 584

F.3d at 333 (citing Del Gallo v. Parent, 557 F.3d 58, 72 (1st Cir.

2009)). Instead, the record contains clear evidence suggesting

that the City did not intend to create a public forum in the choice

of which flags to fly from that pole. As we have noted before,

the City strictly controls which third-party flags are raised on

the City Hall pole, with the Commissioner of Property Management

screening all proposed flags for "consisten[cy] with the City's

message, policies, and practices." The City has articulated a

policy of not flying non-secular flags in place of the City flag

and its rejection of Shurtleff's flag-flying request is consistent

with that policy.

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 Moreover, the nature of this flagpole is also

inconsistent with unregulated expressive activity. City Hall

Plaza has three flagpoles, and only one of these is occasionally

available for the temporary use of the flags of qualifying third

parties. The Plaza, therefore, may only accommodate a very

limited number of flag-flying requests. The City may reasonably

conclude that opening the pole for widespread public use could

create disruptions that compromise the access and operations of

City Hall. Cf. Summum, 555 U.S. at 478 (noting that "[t]he forum

doctrine has been applied in situations in which government-owned

property or a government program was capable of accommodating a

large number of public speakers without defeating the essential

function of the land or the program"). Accordingly, Shurtleff's

argument that the choice of flag cannot be government speech

because the City has designated the flagpole as a public forum

lacks any likelihood of success.

Considering the foregoing and the record as it is at

present, we find that the City's choice of which flags to raise on

the flagpole at issue likely conveys government speech. And

because this is the case, the City retains the ability not to

promote or be associated with certain flags flown in place of the

City flag on the flagpole in dispute. Thus, Shurtleff and Camp

Constitution failed to establish a likelihood of success on their

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free speech claim against the City. See Summum, 555 U.S. at 467

("The Free Speech Clause restricts government regulation of

private speech; it does not regulate government speech." (citing

Johanns, 544 U.S. at 553)).7

B.

Our final task is to review the district court's

determination that Shurtleff's Establishment Clause claim is

unlikely to succeed.

Shurtleff argues that the City violated the

Establishment Clause by excluding Camp Constitution's religious

speech while flying what he calls "other religious flags." He

alleges, for example, that the City has flown the flag of Portugal

and the Bunker Hill Association flag, which both contain some

religious symbols. But a flag that references religion by using

religious symbols in part of its field is not itself a religious

flag. And as appellants conceded at oral argument and is also

evident from the record, there is no evidence that the City has

ever raised the flag of any religion on the flagpole at issue.

7 We also note that, in making choices about which flags to allow
as temporary replacements for the City flag, the City and its
officials are subject to "the democratic electoral process."
Walker, 135 S. Ct. at 2245; Sutliffe, 584 F.3d at 331 n.9 ("If the
voters do not like those in governance or their government speech,
they may vote them out of office or limit the conduct of those
officials 'by law, regulation, or practice.'" (quoting Summum,
555 U.S. at 468) (citation omitted)).

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Shurtleff has not established that the City's policy and practice

shows a preference for one religion or religious denomination over

another.

Next, Shurtleff claims that the City acts in

contravention of the Establishment Clause "by allowing the

numerous and varied [secular] flags of a broad spectrum of private

organizations while specifically excluding Camp Constitution's

'non-secular' flag." But the "secular" flags -- really, flags of

secular organizations or causes -- the City has allowed to fly

instead of the City flag do not show that the City has espoused a

preference for non-religion over religion. And the record

contains no evidence that would suggest otherwise. Thus, in light

of the current record, we agree with the district court that the

likelihood of success of Shurtleff's Establishment Clause claim is

dim.

IV.

For the reasons explained above, the district court did

not abuse its discretion in denying Shurtleff's request for a

preliminary injunction and its judgment is affirmed.

Affirmed.

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