Attorney General Maura Healey has approved part of a new flag by-law passed by Dighton Town Meeting, but rejected another part as town voters seek to define what can and cannot be flown on properties owned by the city.
According to a joint statement from Dighton City Administrator Michael Mullen and City Clerk Mark Pacheco, part of the settlement was voted down “citing a conflict with the First Amendment to the constitution and section 16 of the Massachusetts Bill of Rights”.
In January 2021, residents asked the town to be allowed to fly a pride flag on the flagpole outside Dighton Town Hall, but were refused.
On November 1, 2021, Section 5 of the Dighton Special Municipal Assembly was a citizens’ petition to limit what flies on the town’s flag poles. The article passed and became a municipal by-law, stating:
“No person shall display or display a commemorative or organizational flag other than: a.) The flag of the United States; b.) The Massachusetts State flag; c.) The official flag of the town of Dighton; d.) The official flags of all branches of the United States military and armed forces; and/or e.) The POW-MIA Flag displayed on a City flagpole or otherwise located at City Hall, City-owned land, or City-maintained facilities.
Any bylaws passed by a city must then be submitted to the Attorney General’s office for review and to ensure that they comply with and do not conflict with the United States Constitution and the general laws of Massachusetts. before it can come into effect.
On May 27, Healey shared his decision with city officials, approving the settlement regarding the flagpole at City Hall, but removing the text “or otherwise” and “or land.” city-owned or city-maintained facilities”.
As Healey pointed out in his decision, recent court cases such as Shurtleff v. City of Boston led to the idea that flags waving at a property such as a town hall represent the “speech of government” and that government entities have the right to decide what will represent that entity’s official position.
“By taking control of the flags that may be flown on city flagpoles at City Hall, the city has taken an active role ‘in the selection of flags or the writing of their messages’, which is essential to a government speech program,” Healey wrote. .
However, Healey said keeping such flags on other “city-owned land or city-maintained facilities” would “rather encompass content-based restrictions on private speech in a public forum” because it would not be considered government speech.
Healey cited a letter from the American Civil Liberties Union as part of his office’s review of the settlement which stated that adopting the settlement as originally drafted “prohibit anyone from wearing on city-owned property any item of clothing displaying another flag, such as a t-shirt displaying the flag of another country or a flag expressing the view that ‘Black Lives Matter’ or ‘Blue Lives Matter’ Matter”, or a flag expressing the opinion that the United States invests too much in the military, or the flag of the city of Dighton with superimposed words saying “Dighton restricts free speech”. This would prohibit anyone one to carry another flag or representation thereof on any land owned by the city, presumably including public parks, streets and sidewalks – which are traditional public forums where speech protection is highest – or polling place on city owned property.”
According to the statement, the settlement approved by the Attorney General now reads as follows:
“No person shall display or display a commemorative or organizational flag other than: a.) The flag of the United States; b.) The Massachusetts State Flag; c.) The official flag of the town of Dighton; d.) The official flags of all branches of the United States military and armed forces; and/or e.) The POW-MIA flag on a city flagpole located at City Hall.”
The pride flag and a policy of flying the town hall flag also came under scrutiny in Fairhaven last June, when the then three-person board of directors determined that the flag could not float outside Fairhaven Town Hall during Pride Month. This led to volunteers planting 100 mini Pride flags along the town hall lawn, which were then removed by a town hall guard under the orders of town officials.
This year, however, Fairhaven’s new five-person board of directors unanimously approved that the Pride flag be flown this year and were also considering a possible permanent display.