New policy will spell out that Amherst Common flagpoles are for government speech

By SCOTT MERZBACH

Staff Writer

Published: 03-27-2023 3:47 PM

AMHERST — A Town Council committee will review a municipal policy that spells out the process for how and when flags are flown on the two flagpoles in front of Town Hall, a measure aimed at avoiding bias in decisions and potential litigation.

Town Manager Paul Bockelman and Pamela Nolan Young, the director of Diversity, Equity and Inclusion, recently sent a memo to the Town Council about adopting a policy that will strengthen the current practice for flying flags and take into account the U.S. Supreme Court decision, and a $2.1 million settlement, involving the city of Boston following its denial of a Christian group’s request to fly a flag at City Hall.

Unlike in Boston, where the justices ruled that the city didn’t control speech, Bockelman said Amherst has always made it clear that the town flagpoles and the flags flying on them are government speech under the town’s auspices.

“Poles on the Town Common are government speech, and are not open to anybody,” Bockelman said.

On the town green, the flagpole closest to South Pleasant Street has the American flag, with a Prisoners of War and Missing in Action flag below it. Those are the only two flags placed on that flagpole.

The flagpole closest to Boltwood Avenue has the United Nations flag and often a second flag, almost always raised following a proclamation or resolution of the Town Council. Those flags can recognize nationalities, such as Puerto Rican Heritage Day and Tibetan National Uprising Day, sociopolitical causes including Pride month and other topics of interest, such as Child Abuse Awareness Month.

The draft policy written by Young states that flags on those two poles are not for free expression by the public, but rather as a nonpublic forum for the display of governmental and nongovernmental flags authorized by the Town Council, either as required by law or as an expression of the Town Council’s official governmental speech and policy sentiments.

Flags would only get to be flown if sponsored by a councilor and voted on at a posted Town Council meeting, typically through a resolution or proclamation.

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“The draft policy is intended to set the parameters with more details that would be incorporated into a set of rules and procedures that would apply to all flags on town property,” the memo reads.

The draft policy also states, “With the approval of the policy, the town manager will work with the clerk of the council and Department of Public Works to develop rules and procedures for requests to raise flags.”

Councilors may examine the flag display policy in San Jose, California, as referenced by the Supreme Court as a model policy.

The town’s Governance, Organization and Legislation Committee will get a report back to the Town Council by May 1.

Councilors appeared supportive of the language, noting that flags shouldn’t be flown simply by request from a resident.

“You have to talk to a councilor, you have to get some support on that, that’s not trying to be exclusive,” said District 4 Councilor Pamela Rooney.

“I do appreciate the policy making it clear that we fly flags as a government speech, because that’s what the council has adopted through this,” said At Large Councilor Mandi Jo Hanneke.

Bockelman said the flag policy is unrelated to the flags that fly from Town Hall, where in descending order, the American flag, a Massachusetts flag and the town of Amherst flag are displayed; and the banner policy for the display over South Pleasant Street that has been used to promote, civic, religious and charitable nonprofit organizations and their events.

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