Appeals Court Rules Nashua Flag Pole Policy Violates First Amendment: Follow-Up

By Damien Fisher, NH Journal

In its fight against free speech, it may be time for the city of Nashua to fly the white flag.

The U.S. Court of Appeals for the First Circuit ruled Monday that Nashua’s Citizens Flagpole policy — used by city officials to block political messages they disliked — amounted to unconstitutional viewpoint discrimination.

In a unanimous ruling authored by Judge Sandra Lynch, the court held that Nashua could not claim the Citizens Flagpole constituted “government speech,” a designation that would have allowed officials to pick and choose which messages were permitted.

“Nashua’s attempt to characterize viewpoint-based decisions as to which flags are approved to fly on the Citizen Flag Pole within this short-lived program as government speech is unpersuasive,” Lynch wrote.

The case was brought by Nashua residents Beth and Stephen Scaer, represented by the Institute for Free Speech, after the city rejected their 2024 application to fly the Revolutionary War-era Pine Tree “Appeal to Heaven” flag at City Hall.

Nashua argued the flagpole program was not a public forum protected by the First Amendment. Monday’s ruling rejected that argument.

“As the First Circuit recognized, governments cannot get away with censorship by labeling that censorship ‘government speech,’” said Institute for Free Speech attorney Nathan Ristuccia. “We are delighted that the First Circuit intervened to prevent Nashua from doing exactly that.”

Nashua began allowing residents to fly flags of their choosing in front of City Hall in 2017, initially placing no restrictions on the messages displayed. Beginning in 2020, however, the city started rejecting flags it deemed controversial — a category that, according to court records, frequently included conservative viewpoints.

That year, Nashua removed a “Save Women’s Sports” flag flown by the Scaers and later rejected an application from a Libertarian group seeking to fly a porcupine flag.

The city subsequently adopted a formal policy giving officials authority to block any flag deemed not “in harmony with City policies and messages that the City wishes to express and endorse.”

Under that policy, Nashua rejected several proposed flags, including additional “Save Women’s Sports” and “Detransitioner Awareness” flags submitted by the Scaers, as well as a pro-life flag and a Palestinian flag sought by other residents.

After Nashua rejected the Scaers’ application to fly the Pine Tree flag, the couple filed a federal lawsuit. The city initially prevailed when Landya McCafferty ruled that flags flown on the Citizens Flagpole constituted government speech subject to government control.

The Scaers appealed, and the First Circuit heard arguments earlier this month in Boston.

During oral arguments, Nashua Corporate Counsel Steve Bolton said the city had the right to block what he described as “unsavory” messages.

“It’s right in front of City Hall. It’s right on Main Street,” Bolton said. “Passersby will say, ‘There’s City Hall — what kind of a place is Nashua if they’re flying this symbol, or that symbol?’”

The appeals court rejected that reasoning, concluding the city could not invite public participation and then selectively suppress speech based on viewpoint.

“Nashua’s flag policy gives city officials unbridled discretion to censor speech they dislike,” Ristuccia said. “The First Amendment doesn’t permit the government to turn a longstanding public forum into a personal billboard for officials’ preferred views.”

The Scaers say they’ve been vindicated.

“After years of being told our flags weren’t ‘in harmony’ with the city’s views, it’s vindicating to have the First Circuit confirm that was unconstitutional,” said Beth Scaer. “No one should have to face government censorship for expressing their beliefs. We’re thrilled with this victory for free speech rights throughout New England.”

This story was originally published by the NH Journal, an online news publication dedicated to providing fair, unbiased reporting on, and analysis of, political news of interest to New Hampshire. For more stories from the NH Journal, visit NHJournal.com.