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18 Duke J. Const. L. & Pub. Pol'y Sidebar 1 (2022-2023)

handle is hein.journals/dukjppsid18 and id is 1 raw text is: THE SHURTLEFF CONUNDRUM: RESOLVING THE CONFLICT IN GOVERNMENT-SPEECH AND PUBLIC FORUM ANALYSIS JAMES WALRAVEN* INTRODUCTION Shurtleff v. Boston is the Supreme Court's latest opportunity to clarify the murky line between the government-speech doctrine and public forum analysis. Although the public forum doctrine provides varying degrees of protection from government censorship,' the government-speech doctrine provides the State with near-complete immunity from Free Speech Clause scrutiny when the government speaks for itself.2 In Shurtleff, the Court will decide whether the City of Boston's refusal to fly a private organization's Christian flag on Boston's City Hall flagpole merely constitutes the government's right to speak for itself' or was unlawful regulation of private speech. The Court should add an additional, dispositive prong to the test for government-speech-requiring sufficient evidence that the government intends to speak for itself-before it may claim the government-speech defense. Doing so would add guidance to the doctrine by resolving the conundrum of distinguishing between government-speech and public forum analysis in close cases. Creating an additional requirement would also narrow the circumstances under which the government may claim the defense, and thereby protect the *Copyright 2022 @ James Walraven J.D. Candidate, Duke University School of Law, 2023. B.A., University of California, Irvine, 2020. Special thanks to the highly dedicated editors of the Duke Journal of Constitutional Law & Public Policy. With gratitude for Dad and Bryan Westerfeld. 1. See generally Part II-A, infra (explaining judicial Free Speech Clause scrutiny in the three types of public forums). 2. Infra, note 61. 3. See Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) (explaining that the Free Speech Clause has no application when the government speaks for itself).