City Council Agenda
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Memo to: |
Manteca City Council |
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From: |
Riana Daniel, Interim City Attorney |
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Prepared by: |
Mona Ebrahimi and Alek Kocher, Legal Counsel |
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Date: |
October 21, 2025 |
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Subject: |
Flag Policy Amendment Options |
Recommendation:
title
Receive a presentation regarding the City’s options with regulating flags on City property and provide direction to staff.
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Background:
On June 21, 2022, the City of Manteca approved a flag policy to conform with the First Amendment and interpreting case law. The policy aimed to protect the City’s ability to regulate flags on city-owned flagpoles by treating the display of commemorative flags as government speech and formally declaring that said flagpoles are not intended to serve as a forum for free expression by the public. The policy was updated in Fall 2023. At the June 17, 2025 meeting, the Council discussed the flag policy further, including the potential for amending it and directed staff to come back with options. This staff report explains the legal framework and provides options for the City Council’s consideration. The Council can elect to keep the flag policy unchanged or direct staff to make changes and bring back proposed amendments for consideration at a future meeting.
I. Regulating Flags
A. Introduction
Manteca has the authority to regulate the use of city-owned property, including city-owned flagpoles. How the City regulates flags on flagpoles will depend on the City's approach. There are two overall approaches. The first approach is government speech, which means all flags flown on City property are an expression of the City and its values. The second approach is public participation, which means the City would allow private individuals/groups to exercise speech through flags on City flagpoles.
B. Government Speech
The U.S. Supreme Court recognizes that governments, such as the City, can speak for themselves. "A government entity is entitled to say what it wishes, and to select the views that it wants to express. It may exercise this same freedom when it receives private assistance for the purpose of delivering a government-controlled message. This does not mean that there are no restraints on government speech. For example, government speech must comport with the Establishment Clause. In addition, public officials' involvement in advocacy may be limited by law, regulation, or practice; and a government entity is ultimately accountable to the electorate and the political process for its advocacy." Pleasant Grove City v. Summum (2009) 55 U.S. 460 (internal citations and quotations omitted).
If the City takes the government speech approach to its flag policy, the City is declaring that all flags flown on City flagpoles are an expression of the City's views. The City must still decide how flags will be chosen (detailed in Section II of the staff report). If the City takes this approach, it should ensure the policy has a clear declaration that it does not intend to create a forum for speech and all flags are an expression of City sentiments. The City should also adopt a process that retains as much control with the Council as possible. With this approach, the First Amendment analysis ends here.
C. Public Participation
If the City wishes to invite public participation in its flag flying program/policy, such as taking flag requests from third parties, the City must consider the implications of creating a forum for free speech. The First Amendment recognizes three forums:
(1) Traditional Public Forum: Traditional public forums are places that have traditionally been open to the public for the exchange of ideas, such as public streets and parks. In traditional public forums, speech is the most protected. The City can impose reasonable time, place, and manner restrictions on speech, but only if the restrictions are also content-neutral, narrowly tailored, and leave open alternative channels of communication. This standard is called "strict scrutiny." Content-neutral means looking at a flag, deciding whether it is good or bad, and making a decision off the content of the flag. Even in traditional public forums, certain categories of speech are unprotected, and the City could continue to regulate that unprotected speech. Examples include defamation, incitement, threats of violence, and fighting words ("unprotected speech").
Because a flagpole is not a space that has been traditionally open to the public for the free exchange of ideas, it is unlikely that a flagpole would be considered a traditional public forum, even if the City opened it up to public participation. However, if it was considered a traditional public forum, this would allow for the most speech and debate, and it would be difficult for the City to regulate. But, with respect to reasonable restrictions, the City is permitted to limit the days or hours a flag could be placed or the manner they are flown. Such restrictions must be uniformly applied to anyone who wanted to place a flag on a city flagpole.
(2) Limited Public Forum: A limited public forum is when the government creates, by government action, a forum for expressive activity by parts or all of the public, even if the property was not traditionally used for such purposes. An example of this includes council chambers. The City allows public comments to be made at city council meetings, but those comments must be limited to the conduct of the City’s business and commenters must comply with time, place and manner restrictions. This forum receives the same protections, and is allowed to be regulated with time, place, and manner restrictions, but also, the City could limit the scope and purpose of the forum. Once this forum is set up, the government must abide and respect the boundaries it set - it should not change them in response to the speech going on.
If the City were to choose the public participation route, the flagpoles could be considered a limited public forum. In a 2022 U.S. Supreme Court case, the Court looked at a City's actions regarding its commemorative flag policy and found that by inviting public participation, not expressing a clear intent for government speech, and the lack of control the City exerted, the City created a public forum. The Court did not specify what forum was created, but secondary legal sources categorize the Court's analysis as a limited public forum.
(3) Private Forum: A private forum is a space that is not by tradition or designation used as a forum for public communication. This will most often be places where the government conducts business and not provide a forum for expression, such as the inside of a polling location, the offices of government employees, terminals in publicly owned airports, and military bases. In a nonpublic forum, the government has the most control regulating speech, but the regulations must be view-point neutral and must be reasonable in light of the purpose served by the forum. For example, the government can prohibit political speech in a polling location. There, the government is banning a category of speech rather than viewpoint, such as only banning political speech for candidate A, but not candidate B. The City can still impose time, place, and manner restrictions. The City can still restrict/regulate unprotected speech. Of course, this also applies to true private property where private parties own private property. Under this scenario, government does not regulate speech.
It is unlikely the flagpole would be considered a private forum if the City invites public participation in its flag policy program. This is because the flagpole would have been expressly opened to permit third parties to speak through their flags. However, if it were to be considered a private forum, the City could impose regulations that are viewpoint neutral and reasonable in the light of the flagpole, impose time, place, and manner restrictions, and prohibit unprotected speech.
The City should consider the implications of whether it wants to create a forum for speech, and if so, think about how it would regulate flags to stay consistent with the City's values and the First Amendment.
D. Considerations To Keep In Mind
When deciding whether to go the government speech or public participation route, here are concerns to keep in mind:
- First Amendment Challenges: If the City unintentionally creates a public forum, it may lose the ability to restrict offensive or divisive flags.
- Community Relations: Decisions about which commemorative flags to display may generate strong community reactions and potential division.
- Administrative Burden: Reviewing applications and managing disputes could consume significant staff and legal resources.
- Consistency: Without a clear written policy, ad hoc decisions could create legal vulnerability and perceptions of unfair treatment.
The City must decide whether its flagpoles will be used exclusively for government speech or made available as a forum for community expression.
II. Who Decides What Flags Are Flown?
After the City has decided whether to take the government speech or public participation route, the City must also decide who is to make the decision. Currently, the City's flag policy designates sole authority to the City Manager regarding what commemorative flags are flown.
A. Nobody
The City could choose to amend its flag policy to remove all mention of commemorative flags. This would mean the only flags to be flown on City property would be the U.S. Flag, the State of California Flag, and the City of Manteca flag. Thus, the City absolves itself of all decision making by restricting flags flown on City property to only the previously mentioned flags. The only further action needed would be to make amendments to the policy, which lies within the authority of the City Council.
B. City Council
The City Council can decide that it wants to make the decision on what flags are flown. This approach will vary depending on whether the City has taken the government speech or public participation route.
If the City Council has decided to take the government speech route, the City should limit all flag suggestions to those suggested by a Councilmember. The City could choose to approve flags via resolution flag-by-flag, or the City could choose to approve a yearly schedule of flags via resolution. The City Council can also choose whether to make the vote required a simple majority (3/5), a super majority vote (4/5), or a unanimous vote (5/5).
If the City Council has decided to take the public participation route, the City will need to implement some sort of system for third parties to suggest flags. This could look like an application managed through the City Manager that is ultimately approved or denied by the City Council. In amending its policy, the City can still decide what the vote requirement is. The City can also decide whether to approve or deny flags on a case-by-case basis, or could establish a program with deadlines to establish a yearly schedule.
C. City Manager
The City could keep the authority of choosing commemorative flags with the City Manager. If the City takes the government speech route, staff does not recommend keeping the authority with the City Manager. Control is a factor of government speech, and keeping the authority to approve commemorative flags within City Council helps establish control. If the City takes the public participation route, staff recommend the City Manager create a clear process where third parties can apply for what flags are flown.
III. Leased Property
There was discussion during the June 17, 2025, meeting about what to do with flags flown on City property that is being leased, for example, the VFW hall. There are three options the Council could consider:
A. No Exception/Most Restrictive
The City could fully restrict the flag-flying ability of leased City property by not carving out an exception for leased property. This would limit the flags to be flown on leased City property to flags consistent with the City policy.
B. Limited Restrictions/Middle Option:
The City could allow leased City property to fly flags, but the flags but be consistent with and in furtherance of the purposes, activities, and operations authorized under the Lease Amendment between the City and the Lessee. For example, the VFW would be able to fly a VFW flag as it furthers the purpose of the VFW, as well as a POW/MIA flag as it is an approved flag by the federal government and is consistent with its lease. This still has City control, but it is a little flexible for businesses, so there is a less-strong argument for government speech. However, that does not necessarily mean it is a losing argument. To counter, this could be seen as creating a forum of speech for leased flag poles. The analysis would depend on how the policy was amended and carried out.
C. Anything Lawful/Least Restrictive
The City could allow leased City property to fly any flag that is lawful and that complies with the City's sign ordinance. This could be seen as the City creating a forum of speech for leased flag poles, even if the City takes the government speech approach.
IV. Other Considerations
Whatever flag policy amendments are made, it is important to remember the policy only affects City owned property, not private property.
There was discussion during the June 17, 2025, meeting, about proclamations. When considering amendments to the flag policy, it is helpful to think of the differences between flags and proclamations. A flag is on public display for all to see, whereas a proclamation is recognized during a meeting for a specific individual/group. The City is permitted to have different policies on flags and proclamations.
Staff have examined other flag policies (attached) when preparing this report and provide them for the Council's reference. In Stockton, the policy takes a government speech approach with an express statement not to create a forum of free expression. For commemorative flags on City Flagpoles, the specific flagpoles are identified in the policy. Commemorative flags are chosen via resolution of the City Council; requests are only taken from City Council members and the policy specifies requests will not be taken from third parties. Flag flying is limited to 7 days.
The City of Merced amended their policy in April of this year. Merced also takes the government speech approach with an express statement not to create a forum of free expression. The policy permits the City Manager to fly certain flags, such as the U.S., state, city, POW/MIA, and sister city flags. For commemorative flags, requests are not taken from third parties, and commemorative flags must be approved by the Council. Merced's process takes two meetings. At the first meeting, the Council votes for what flags should be displayed the following calendar year. Each flag is to be voted on. At a second meeting, a resolution is adopted establishing what flags will be flown the following year. The vote for resolution must be by a simple majority.
There will inevitably be a situation that does not currently exist that may exist in the future that will spark controversy. The goal of amending the flag policy is to ensure the policy reflects the values and goals of the City so when a future controversial condition does occur, the City's policy is in place and reflects the values and goals of the City. The City puts itself in a better position to think about the goals now and be proactive rather than being reactive to a specific situation.
Fiscal Impact:
There is no fiscal impact, aside from staff time, associated with this item.
Documents Attached:
Attachment 1 - Presentation
Attachment 2 - Existing Flag Policy
Attachment 3 - City of Fremont calendar
Attachment 4 - City of Signal Hill calendar