Who decides what flags to fly? Town law, says OLR

Controversy surrounding flag-flying in the town of Wethersfield , the latest of several recent flag-flying controversies in Connecticut, makes relevant yet again a report released last month by the State’s Office of Legislative Research (OLR) explaining the laws governing flag-flying in the State of Connecticut.

“Neither federal nor state law restricts whether or which flags may be flown in addition to the U.S. flag,” explains the OLR’s report . “The issue of whether and which unofficial flags may be flown on town property is primarily governed by municipal law, typically through policies or ordinances.”

The issue of flag-flying became a topic of debate again this week after Wethersfield town officials rejected a vote to fly the Thin-Blue Line flag ahead of the funeral of State Police Trooper First Class Aaron Pelletier, who died last week in a hit-and-run incident on I-84. While Wethersfield is the most recent example of a flag-flying controversy in Connecticut, the town of Enfield came under fire in January after its town council passed a law which effectively banned the flying of Pride flags on town property.

Ultimately, the OLR report finds three things to be true: town governments are largely in control of their own rules surrounding flag-flying on town property, these rules may or may not apply to school property, and the application of these rules varies depending on whether a town’s flag-flying policies are viewed as free-speech or government speech.

The OLR report said that most towns have rules either banning all unofficial flags, except for certain military and departmental flags, or requiring that all unofficial flags be approved or denied by the town on a case-by-case basis. Recent controversies show that both policies are capable of causing controversy in their own right.

The Town of Wethersfield has a case-by-case policy, with the issue of flying the Thin Blue Line flag having been decided by a vote. The town of Enfield sparked controversy as a result of its passage of a law that would only allow for the flying of the American flag with the MIA/POW flag, State flag, and various military service flags as exceptions. This law superseded a resolution passed in 2022, which allowed the town to fly the Pride flag for the month of June.

On the topic of school property, the report said that town jurisdictions vary depending on their laws.

“Policies that regulate flagpoles ‘owned or maintained by the town’ may apply to the extent flagpoles on school property fit within that definition,” read the report. “Towns may also have a school-specific ordinance or resolution.”

The report cites Southington as a town with a school policy. Its school policy states that schools can fly school flags outside of the building, while inside, they may fly the flags of other countries after approval of the school’s principal. Teachers are also allowed to fly Pride flags in their classrooms if they so choose.

The report further outlines the legal gray area surrounding flag policy federally. A 1995 Supreme Court case, Rosenberger v. Rector , established a precedent that a government entity “is entitled to say what it wishes and to select the views it wants to express,” per the report. It can be tricky to determine whether flags represent government speech or private speech, an issue which was further ruled upon in a 2021 Supreme Court Case, Shurtleff v. Boston .

In that case, the city of Boston was ruled to be violating the First Amendment for refusing a resident’s request to fly a Christian flag after accepting applications to fly other unofficial flags on city grounds.

“The determination of whether the flag-raising was government speech was a fact-specific inquiry, focusing on whether the municipality intended to convey the flags’ messages as its own,” read the report. “The Court classified the third-party flag raising on Boston’s flagpole as private speech because the city did not have any meaningful involvement in the selection of the flags or the messages those flags would communicate.”

In conclusion, deciding which flags get flown is largely governed by town policy, with the caveat that towns which fly unofficial flags at the request of their residents can be deemed to be restricting private speech if they deny a citizen’s flag request. On the other hand, towns that do not accept citizens’ requests can deny flying flags suggested by other government officials, as it is constituted as government speech.

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