Federal Court Kills Nashua’s Flag Censorship Policy For Good

By Damien Fisher, NH Journal

Under a final judgment entered in federal court this week, the city of Nashua is permanently barred from reviving the flagpole policy that triggered a years-long First Amendment lawsuit over a Revolutionary War flag.

“Nashua’s flagpole policy was unconstitutional, and we’re grateful and happy that the city is permanently barred from going back to it,” said plaintiff Beth Scaer. “That matters not just for our First Amendment rights, but for the rights of anyone who might have faced the same treatment in the future.”

Beth and Stephen Scaer filed the federal lawsuit against Nashua after city officials rejected their application to fly a Pine Tree Riot flag from the City Hall flagpole. Nashua’s Citizen Flagpole program allowed just about anyone to fly a flag on government property, unless it was deemed out of “harmony” with Nashua values.

Represented by the Institute for Free Speech, the Scaers argued that Nashua’s flag approval policy amounted to viewpoint discrimination, a basic violation of free speech rights. The city disagreed, arguing the flagpole program wasn’t a free speech venue but fell into the realm of government speech, which allows censorship.

After initially losing their case in the United States District Court in Concord, the couple appealed to the First Circuit Court of Appeals in Boston. In a ruling released in February, the First Circuit found Nashua’s explanations didn’t fly.

“It’s right in front of City Hall. It’s right on Main Street. Passersby will say, ‘There’s City Hall, look. What kind of a place is Nashua if they’re flying this symbol, or that symbol, or some other symbol that is generally not regarded as savory,'” Nashua Corporate Counsel Steve Bolton said during the appeal last year.

“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,” First Circuit Judge Sandra Lynch wrote in the unanimous decision in favor of the Scaers.

Nashua got rid of the flagpole policy during the lawsuit, and it will now have to refrain from ever having another policy under the terms of the judgment entered in Concord this week. The city will pay the Scaers $17.91 under the judgment, a symbolic amount recalling the First Amendment’s ratification in 1791.

“The First Circuit made clear … that Nashua’s censorship was unconstitutional,” said Institute for Free Speech attorney Nathan Ristuccia, who argued the case before the First Circuit. “Today’s judgment ensures that such censorship cannot happen again.”

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.