New Hampshire
N.H. city’s refusal to fly ‘Save Women’s Sports’ and ‘An Appeal to Heaven’ flags is unconstitutional, appeals court rules – The Boston Globe
A federal appeals court has ruled officials in Nashua, N.H., engaged in unconstitutional viewpoint discrimination when they denied requests to fly certain politically charged flags, while allowing others, on the city’s “citizen flag pole.”
Bethany and Stephen Scaer, whose requests to hoist banners with the slogans “Save Women’s Sports” and “An Appeal to Heaven” were rejected, teamed up with the Institute for Free Speech and filed a lawsuit in 2024 alleging their First Amendment rights were violated.
The trial court in New Hampshire initially concluded the Scaers hadn’t demonstrated a likelihood that their case would succeed, since the flags approved for display at City Hall constitute government speech. But three judges on the First Circuit Court of Appeals reversed that decision Monday, finding that the flagpole in question had actually been a venue for private speech all along.
The case relates to one Boston lost in 2022, when the US Supreme Court ruled unanimously that the city had unconstitutionally rejected an application to fly a Christian flag.
Even though Nashua sought to clarify its policy in response to that 2022 precedent, the city’s process for deciding which flags from the general public would be allowed still didn’t convert private speech into government speech, according to the First Circuit ruling.
“Nashua was doing no more than simply approving that private speech with which it agreed,” Judge Sandra L. Lynch wrote in the ruling, joined by judges Gustavo A. Gelpí and Jeffrey R. Howard.
In a statement, Beth Scaer said the ruling offers a sense of vindication.
“No one should have to face government censorship for expressing their beliefs,” she said. “We’re thrilled with this victory for free speech rights throughout New England.”
Nathan Ristuccia, an attorney with the Institute for Free Speech who argued the case on appeal, said his team is delighted by the ruling.
“As the First Circuit recognized, governments cannot get away with censorship by labeling that censorship ‘government speech,’” Ristuccia said.
Before the lawsuit was filed, Nashua Mayor James W. Donchess said the city declined to fly the “Save Women’s Sports” flag because officials interpreted it as implying transgender people should face discrimination.
The Scaers, who regularly demonstrate against gender-affirming medical interventions for minors and against inclusion of transgender athletes in women’s and girls’ sports, rejected the notion that their messaging is transphobic.
As for the “Appeal to Heaven” flag, which features a pine tree, Donchess said city officials want to avoid endorsing the additional meaning it has taken on in recent years.
The banner emerged during the American Revolution, with a nod to the Pine Tree Riot in New Hampshire, an act of American resistance that preceded the Boston Tea Party. More recently, the flag has also been used by Christian nationalists, including some who carried it to the US Capitol on Jan. 6, 2021, when a violent mob delayed the certification of President Trump’s 2020 electoral defeat.
In her application to raise the “Appeal to Heaven” flag, Beth Scaer said she wanted to honor the soldiers from Nashua who fought and died at the Battle of Bunker Hill in 1775. She and her husband said their request has nothing to do with the Capitol riot.
Nashua has also declined to fly several other flags since the 2022 policy update, including a “pro-life” flag and a Palestinian flag, according to the lawsuit.
Nashua’s attorney, Steven A. Bolton, said on Tuesday that the city has not yet determined whether to file an appeal. He noted that the appellate ruling calls for the trial court to grant interim declaratory relief while the case proceeds.
Bolton said the city has stopped inviting community members to fly their own flags.
“A new policy was adopted more than a year ago, and we no longer use the term ‘citizen’s flag pole,’” he said. “We no longer accept applications from other parties to fly flags on any of the poles on the City Hall grounds.”
Steven Porter can be reached at steven.porter@globe.com. Follow him @reporterporter.
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