Russ Gordon v. City of Hamtramck, Mich. -Eastern District of Michigan at Detroit
Split Score
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Case Summary
Disposition
Affirmed
The Sixth Circuit affirmed the district court’s grant of summary judgment to the City of Hamtramck and related defendants. The panel held that (1) once the City adopted Resolution 2023-82 limiting which flags may fly on city-owned flagpoles, the flagpoles conveyed government, not private, speech, so the First Amendment free-speech challenge failed; (2) the Resolution did not violate the Establishment Clause under current Supreme Court precedent; and (3) the plaintiffs forfeited their Equal Protection claim.
Circuit Split Identified
Legal Issue
Whether a government may close a previously designated public forum to all private speech when the closure is allegedly motivated by hostility to a particular viewpoint ("retaliatory forum closure").
Circuit Positions
Forum closure must be in good faith; motive-based, retaliatory closures violate the First Amendment.
Motive is irrelevant; government may close the forum to all private speech even if prompted by disagreement with a particular viewpoint.
Declined to decide; assumed without deciding that closure was permissible because plaintiffs conceded the issue.
Conflict Summary
Some circuits hold that the government’s motive matters and a forum may not be closed as a pretext to suppress a disfavored viewpoint; other circuits permit an across-the-board closure of the forum regardless of motive as long as all private speech is barred. The Sixth Circuit in this opinion expressly declined to choose between those approaches.