Attorney General Maura Healey has approved part of a new flag-related bylaw adopted by Dighton Town Meeting, but disallowed another part of it as town voters seek to define what can and can’t be flown on town-owned properties.

According to a joint release from Dighton Town Administrator Michael Mullen and Town Clerk Mark Pacheco, part of the bylaw was disallowed “citing a conflict with the first amendment to the constitution and Article 16 of the Declaration of Rights of Massachusetts.”

In January 2021, residents petitioned the town to be allowed to fly a Pride flag on the flagpole outside of Dighton Town Hall, but were denied.

On November 1, 2021, Article 5 at the Dighton Special Town Meeting was a citizen’s petition to limit what is flown on town flagpoles. The article was passed and became a town bylaw, stating:

“No person shall fly or display a Commemorative or Organizational Flag other than: a.) The United States flag; b.) The Massachusetts State flag; c.) The official Town of Dighton flag; d.) The official flags of all branches of the U.S. military and armed forces; and/or e.) The POW-MIA flag on a Town flagpole or any other such manner located at the Town Hall, or Town-owned land or Town-maintained facilities.”

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Any bylaws adopted by a town must then be submitted to the Attorney General’s Office for it to be reviewed and to ensure it abides by and does not conflict with the U.S. Constitution and Massachusetts General Laws before it can go into effect.

On May 27, Healey shared her decision with town officials, approving of the bylaw as it relates to the flagpole at Town Hall, but deleting the text “or any such manner” and “or Town-owned land or Town-maintained facilities.”

As Healey pointed out in her decision, recent court cases such as Shurtleff v. City of Boston have led to the idea that flags flown on a property such as a town hall represent “government speech,” and that government entities have a right to decide what will represent the official position of that entity.

“By taking control over what flags may be flown on town flagpoles at Town Hall, the Town has taken an active role ‘in the selection of flags or the crafting of their messages’ that is essential to a program of government speech,” Healey wrote.

However, Healey said keeping such flags off other “Town-owned land or Town-maintained facilities” would “instead encompass content-based restrictions on private speech in a public forum,” as it would not qualify as government speech.

Healey cited a letter from the American Civil Liberties Union as part of her office’s review of the bylaw that stated that adopting the bylaw as originally written would “prohibit anyone from wearing on any Town-owned property an article 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,’ or a flag expressing the view that the United States invests too much in the military, or the Town of Dighton flag with words super-imposed saying ‘Dighton restricts free speech.’ It would prohibit someone from carrying another flag or a depiction of it on any Town-owned land, including presumably public parks, streets and sidewalks – which are traditional public forums where protection for speech is at its highest – or a polling place on Town-owned property.”

According to the release, the Attorney General-approved bylaw now reads as:

“No person shall fly or display a Commemorative or Organizational Flag other than: a.) The United States flag; b.) The Massachusetts State flag; c.) The official Town of Dighton flag; d.) The official flags of all branches of the U.S. military and armed forces; and/or e.) The POW-MIA flag on a Town flagpole located at the Town Hall."

The Pride flag and a town hall flag-flying policy also came under scrutiny in Fairhaven last June, when the then-three person Board of Selectmen determined the flag could not fly outside of Fairhaven Town Hall during Pride month. That led to volunteers planting 100 mini Pride flags along the front lawn of the town hall, which were subsequently removed by a town hall custodian under the orders of town officials.

This year, however, Fairhaven’s new five-person Board of Selectmen unanimously approved the Pride flag to fly this year, and was looking into a possible permanent display as well.

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