When conservative activist Hal Shurtleff got the idea of flying the Christian flag, with its white banner and red cross on a blue field, at Boston City Hall in 2017, he couldn’t imagine the controversy that would follow. After all, Boston had approved the previous 284 applications to fly celebratory banners on that same spot.
Five years, a unanimous U.S. Supreme Court ruling (and millions of taxpayer dollars) later, Shurtleff and his Camp Constitution organization finally unfurled their banner in Boston on August 3, 2022.
And now Shurtleff has a message for Nashua taxpayers: Be prepared to pay up.
“What the city of Boston did to us cost them well over $2.1 million in legal fees. Let’s hope for taxpayers’ sake that the city of Nashua is smarter than that,” Shurtleff told NHJournal Tuesday.
He was talking about Mayor Jim Donchess and his administration’s decision to ban the flying of the historic Pine Tree Flag and its “Appeal to Heaven” motto on city hall property. Local resident Beth Scaer applied to fly the flag to commemorate the anniversary of the Batter of Bunker Hill, when the flag flew over the battlefield.
Donchess said no.
“The reason we won’t fly this flag is that since the attack on the (U.S.) Capitol it has become a symbol of violence against local, state and national government,” Donchess said Tuesday. That statement prompted a response from the Liberty Counsel, the nonprofit legal organization that successfully represented Shurtleff before the U.S. Supreme Court.
“This is not a legally defensible position. It doesn’t matter the reason for their censoring viewpoints, the fact that they’re censoring viewpoints is unconstitutional. Their subjective determination does not satisfy the First Amendment requirement to avoid viewpoint discrimination, which is exactly what the city is doing,” said Liberty Counsel founder and chairman Mat Staver.
“The city needs to change its flag policy or they need to allow this flag to fly. They can’t have it both ways. They can’t choose which flags to fly and which ones to censor based upon their own subjective decision making without any objective criteria. They are unconstitutionally engaged in viewpoint discrimination.”
Donchess, his spokesperson and the city attorney all declined to respond to a request for comment.
Also silent: The New Hampshire ACLU, which has often opposed government restrictions on political speech and actions from Democrats and the political left. They also declined to comment.
New Hampshire attorney Rick Lehmann, who often deals with freedom of expression issues, concurred with Staver’s analysis, telling NHJournal, “That’s exactly right.”
Shurtleff also took issue with Donchess’ claim that the Pine Tree Flag, which has its roots in New Hampshire, is a hate symbol.
“It’s a display of history, not hate.”
The pine tree had long been a symbol of New England when George Washington’s secretary, Joseph Reed, suggested the Pine Tree Flag’s design in 1775. His idea was a “flag with a white ground and a tree in the middle, the motto AN APPEAL TO HEAVEN” be used for the ships Washington commissioned.
The pine tree is also a reference to the Pine Tree Riot, when colonists in Weare, N.H. protested the arrest of local men for violating a royal order banning them from cutting down trees more than one foot in diameter. Minor violence ensued, and the event is believed to be one of the first acts in the conflict that would become the Revolutionary War.
“I was at ceremony last year in Weare, I saw the flag there,” Shurtleff said. “Nobody objected. The real reason Nashua objects is because it’s a conservative symbol. There were a lot more American flags at the January 6 riot than these flags. Is Nashua going to ban the American flag?”
Shurtleff also praised the New Hampshire Libertarian Party supporters who protested Nashua’s flag ban on Monday.
“I’m not a big fan of the Libertarian Party, but I really appreciated their support on this issue.”
As for the price taxpayers may pay due to Donchess’ policy, several sources told NHJournal legal action is on the horizon. And that’s not good news for the city, says former New Hampshire House Speaker Bill O’Brien.
“Mat Staver’s assertion is not just an opinion, it’s a fact,” said O’Brien, who runs the Pine Tree Public Policy Institute. “The government’s act of viewpoint discrimination, particularly when it involves prohibiting access to political messages in a public forum, is a clear violation of our constitutional rights.
“Nashua is yet another instance of a leftwing government abusing political power,” O’Brien added.
