The City of Nashua did not violate the First Amendment when it rejected resident Beth Scaer’s application to fly the Pine Tree “Appeal to Heaven” flag at city hall, a federal judge ruled this week. But a free speech organization representing Scaer says the fight is far from over.
Magistrate Judge Talesha Saint-Marc issued a report on Monday to Chief District Judge Landya McCafferty recommending the court deny Scaer’s request for an injunction against the city. Scaer was seeking the preliminary injunction to prevent Nashua officials from denying their flag permit applications, or closing down the public flag program.
After being slapped with a lawsuit over free speech violations for refusing to allow Scaer to fly the historic Pine Tree Flag, Nashua Mayor Jim Donchess quietly pulled down the city’s flagpole policy entirely.
Nathan Ristuccia, an attorney with the Free Speech Institute representing Scaer, called Saint-Marc’s report disappointing, but added it’s not the final word in the case. He plans to file objections to Saint-Marc’s report in the coming days.
“Although we are disappointed with the magistrate judge’s recommendation against the preliminary injunction, this is just one early step in the legal process for defending our client’s First Amendment rights,” Ristuccia said.
Saint-Marc found that since Nashua’s original flag display policy explicitly states the venue is not a place for absolute free expression, city officials are not violating anyone’s rights when they choose to reject some flags.
“During the time period relevant to the Scaers’ claims, Nashua maintained a written flagpole policy with identifiable guidelines of what it wished to communicate through the flags displayed on the Citizen Flag Pole,” Saint-Marc wrote. “The 2022 Flagpole Policy stated that the ‘potential use of a City flag pole is not intended to serve as a forum for free expression by the public.’”
Scaer’s attorneys argue having a policy doesn’t free the city from illegally practicing viewpoint discrimination.
Scaer filed her lawsuit against Nashua in September, claiming she was denied the ability to fly the historic Pine Tree flag at City Hall’s “Citizen’s Flag Pole.” According to Scaer’s lawsuit, the city used its vague policy to deny her request. The flag’s origins are linked to events in 1772 in the town of Weare, N.H. Colonists staged a pre-Revolution act of defiance against British rule. Scaer planned to fly the flag to commemorate the anniversary of the Battle of Bunker Hill.
But Saint-Marc again sided with Nashua when she noted that different symbols, like the Pine Tree flag, can have multiple meanings. In this case, the Pine Tree flag could be considered a symbol of the far right as much as a symbol of the Revolutionary War, she wrote.
“The record also indicates that the flag was used during the Jan. 6, 2020 attack on the United States Capitol Building in Washington, D.C.”
Scaer’s supporters are quick to note that far more U.S. flags were flown by rioters that day, and the American flag currently flies outside Nashua City Hall.
Representing the City of Nashua before Saint-Marc last month, attorney Jonathan Barnes compared flying the Pine Tree flag to displaying a Nazi symbol on Hitler’s birthday.
“I mean, [Ristuccia] would have you believe that we can raise the Nazi flag to commemorate Hitler’s birthday. I think that’s totally unreasonable, and it certainly wouldn’t be in the city’s best interests to do that,” Barnes said.
According to the transcript from the Nov. 5 hearing, Ristuccia did not advocate for the display of Nazi symbols.
Barnes also admitted to Saint-Marc that, under its policy, Nashua would ban the national flag of Israel at City Hall as well. The City has previously banned the Palestinian flag, a pro-life flag, and flags supporting people who detransition after sex change procedures.
Saint-Marc’s report will now go to McCafferty for a final decision on the injunction. Even if McCafferty agrees with Saint-Marc on the injunction, the case is far from over.
“The final decision about the preliminary injunction rests with the district judge, who may accept, reject, or modify the magistrate’s recommendation. As the case proceeds, we will continue fighting to protect the rights of every citizen to express their views freely, without government censorship,” Ristuccia said.
