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Hit with a free speech lawsuit for denying residents the ability to fly a historical, patriotic flag at City Hall, Nashua Mayor Jim Donchess seemingly retreated by repealing the public flag pole policy.

The repeal isn’t a white flag, the city’s attorneys insist. But lawyers for the residents who’ve brought the lawsuit say it’s a bait and switch to avoid legal peril.

Nashua resident Beth Scaer filed her lawsuit last month after the city refused to allow her to fly a Pine Tree Riot flag on City Hall’s “Citizen’s Flag Pole.” In its rejection statement, the city said the Pine Tree Flag, and a “Protect Women’s Sports” flag she attempted to fly previously, were “not in harmony with the message that the city wishes to express and endorse.”

After the lawsuit was filed, Donchess quietly ended the city’s long tradition of having a public flagpole, declaring that in the future, Nashua’s government would decide what flags would and wouldn’t fly and do so without community involvement.

But that repeal, done without any public input or approval from the city’s Board of Alderman, isn’t enough to get out of legal trouble, insists Scaer’s attorney, Nathan Ristuccia, with the Institute for Free Speech.

“This abrupt change is a transparent attempt to avoid judicial scrutiny, but it cannot moot the Scaers’ claim for injunctive relief,” Ristuccia said in a court filing this week.

Ristuccia said the repeal was simply cover for Nashua to engage in censorship by silencing the views of residents who do not walk in lock-step with the administration. But repealing the policy doesn’t fix anything, he wrote. In fact, Nashua and Donchess have said they don’t plan to stop controlling speech through City Hall, according to Ristuccia.

“If this Court does not grant relief, Defendant Donchess could restore the old policy just as easily as he repealed it. Indeed, a spokesman for Nashua has publicly ‘denied that the mayor had made any change to the cityʼs flagpole policy’ and stated that Donchess was ‘merely clarifying the existing policy,’” Ristuccia states in his motion.

Those statements were made to NHJournal by Steven A. Bolton, the city’s corporation counsel.

The existing policy for City Hall Plaza Events uses the same language as the now-repealed flag policy in order to control the message people are allowed to express, according to Ristuccia.

“Defendants use a City Hall Plaza Events policy that is almost identical to the 2022 flag policy … Ceremonies at the City Hall Plaza are permitted only if the ceremony’s message is ‘in harmony with city policies and messages that the city wishes to express and endorse’ and in ‘the City’s best interest,’” Ristuccia wrote.

The lawsuit stems from Scaer’s request to fly what is known as the “Appeal to Heaven” flag, featuring that phrase (from philosopher John Locke) and a pine tree. The pine tree is also a reference to the 1772 Pine Tree Riot, which took place in Weare, N.H., and is widely viewed as one of the first skirmishes in the American Revolution.

City officials denied the request, but they did not explain why they found the flag objectionable.

The Citizen Flag Pole in Nashua allowed any resident to apply for a permit to fly a flag at City Hall. Past flags have celebrated Pride Month, Indian Independence Day, Brazilian Independence Day, Greek Independence Day, International Francophonie Day, and the anniversary of the founding of Nashua’s Lions Club.

But Scaer says the city started censoring her in 2020 when her flag with the message “Save Women’s Sports” was removed after flying for one day due to complaints from City Councilor Jan Schmidt. In February, she was again denied when she sought to fly a flag supporting people who detransition after a sex change procedure. The denial stated the message was “not in harmony with the message that the City wishes to express and endorse.”

United States District Court Judge Steven McAuliffe gave a partial win Tuesday to parents suing the Bow School District after being punished over holding a silent demonstration in support of protecting girl’s sports.

Bow High School parent Kyle Fellers can now go to his daughter’s soccer games, but he can’t wear the pink “XX” wrist band that got him and three other parents in trouble last month. Fellers and Anthony “Andy” Foote were slapped with no trespassing orders by Bow school officials for engaging in a silent protest at the Sept. 17 game.

McAuliffe said while there are complex nuances to the case that need to be sorted out, it’s clear the school was violating the First Amendment rights of the four adults at the game.

“You can’t suppress free speech based on whether you think it’s appropriate,” McAuliffe said.

Fellers, Andy Foote, Nicole Foote, and Eldon Rush are seeking the right to keep wearing pink “XX” armbands to games, but McAuliffe said both Bow’s attorney, Brian Cullen, and attorneys for the parents need to show more evidence and legal arguments to make the case. An evidentiary hearing will be set for November.

Cullen and the district argue the school can set limits on free speech in order to protect students from harassment and other harms. But given the facts before him, McAuliffe wasn’t sold that the school showed it was protecting anyone from any real harassment.

“How is wearing a pink wristband harassment?” McAuliffe asked.

Attorney for the parents Endel Kolde, with the nonprofit Institute for Free Speech, said school officials are punishing people who hold unpopular views.

“Everyone knows if they wore rainbow wristbands in support of trans students, or if they wore blue and gold wristbands in support of the war in Ukraine, nothing would have happened,” Kolde said.

The district was on high alert heading into the Sept. 17 game as Bow was set to host Plymouth High School where transgender student Parker Tirrell plays on the girl’s soccer team. Tirrell won an injunction on Sept. 10 against the state law that bans biological males from playing on girl’s teams.

Cullen said Bow had an obligation to keep Tirrell from being harassed by rowdy, crude protests or heckling. But according to Kodel, few people, including Tirrell, knew about the wristbands until school officials confronted the parents and ordered them to remove the offending accessories. The protest coincided with the Plymouth game, but it was in no way directed at Tirrell, Kodel said.

McAuliffe said while there is not enough evidence on the record to determine what, if any, harm was done by the protests, the pink wristbands on their own symbolize a non-bigoted viewpoint that is still open for debate, that girl’s sports is a space for biological girls. 

Even if Tirrell was aware of the wristbands during the Sept. 17 game, it does not automatically rise to the level of an offense that requires the school to step in and curb the constitutional rights of adults.

“Surely, it’s not harmful for a trans student playing on a girl’s team to know there are people who don’t think they should be playing on the girl’s team,” McAuliffe said

He’ll always have Noshua.

Indicted on 33 criminal counts for allegedly filing false tax returns, John Castro’s presidential campaign would be facing a serious roadblock if that campaign had a car. Or knew where the road was.

The law school graduate, who is not a licensed attorney, is in trouble for allegedly making up deductions for clients of his Texas tax law firm, according to the indictments. Castro allegedly used the fake deductions to collect big refunds for clients, and split the take with them, the indictment alleges.

Castro launched his presidential ambitions as part of his effort to boot former President Donald Trump from the GOP presidential primary ballot in 32 states, including New Hampshire. His latest New Hampshire lawsuit is pending while United States District Court Judge Samantha Elliott decides whether or not Castro’s $800 campaign with two volunteers, no offices, and no New Hampshire Republican supporters counts as a viable concern.

Castro was indicted in United States District Court in Fort Worth, Texas, on Jan. 3, the same day he was in Concord trying to convince Elliott that sending his brother-in-law and cousin to New Hampshire to plant 15 Castro for President lawn signs on vacant lots outside Nashua counts as a serious presidential campaign. 

The New Hampshire campaign swing was headed by volunteer campaign David Garza, who is also Castro’s personal assistant and brother-in-law. Garza brought his cousin and fellow Castro employee, Alexander Gomez. Garza testified they started the one day of fieldwork in a city south of Manchester called Noshua, though Gomez testified it was called Joshua.

If any New Hampshire Republican Castro voters exist, they may be dissuaded by indictments that lay out a years-long scheme to defraud the government and lie to clients.

According to the indictments, Castro’s tax law firm attracted clients by offering large refunds, larger than they could get filing themselves, or by employing an accountant, or by hiring an actual licensed tax attorney. One client was entitled to a legitimate refund of less than $400, but Castro promised to get back more than $6,000 from the government, the indictment states.

Castro did get the large refund by claiming almost $30,000 in deductions that the client did not have, the indictment states. 

“These were not expenses that the (client) had identified or discussed with Castro and were not based on information provided by the (client) to Castro or his employees and were not approved or verified by the (client). These false statements resulted in a claimed refund of $6,007.”

Castro allegedly split the big paycheck with the client, keeping $3,000 for himself. Unknown to Castro, that client happened to be an undercover informant for the government, according to court records.

Castro presents himself as a tax attorney qualified to represent clients in federal court, though he is not licensed to do so. He explained to Judge Joseph LaPlante in October that he can act as a “federal practitioner” thanks to a loophole he found in college.

Castro thinks he’s found another loophole to get Trump off the ballot, using the 14th Amendment and the GOP nominating process. Castro is on primary ballots in several states as a Republican presidential candidate under the theory that his candidacy will confer the necessary legal standing to force Trump’s name to be removed.

Castro’s lawsuits claim that Trump is unqualified to be president due to the 14th Amendment’s anti-insurrection clause. He’s suing by alleging Trump’s continued campaign is costing Castro, potential voters, and donors. Castro has yet to prove his campaign has any New Hampshire Republican supporters, and of the $800 he raised last year, none came from any Granite State resident. 

Less convoluted attempts to get Trump off the ballot have had limited success. Maine’s Secretary of State Shenna Bellows recently announced she was blocking Trump, as did the Colorado Supreme Court. Both of those decisions are pending review by the United States Supreme Court, and Trump’s name is on the ballots already printed for New Hampshire’s upcoming first-in-the-nation primary.

Granite State Republicans overwhelmingly oppose the move by Maine’s secretary of state to take Trump’s name off the ballot, according to the new CNN/UNH poll. The same poll found independent voters also oppose the action by 50 to 40 percent.

Castro is representing himself in the many so far unsuccessful lawsuits he’s filed to get Trump off the ballot based on his qualifications. He graduated from the University of New Mexico School of Law in 2013. However, The New York Times reports Castro is likely to hire a lawyer for the criminal case. 

Ballots for the First in the Nation presidential primary have been printed, so it’s all but certain Donald Trump’s name will be listed. But that’s not stopping one last, longshot attempt to dump Trump, a legal challenge that hinges on the brunch-loving brother-in-law of a Texas tax attorney.

The tax attorney is John Castro, whose name will also be on the GOP First in the Nation primary ballot. He’s also going to court to try to kick Trump off it.

Castro’s novel legal theory is that as a GOP challenger to Trump, he can show that he’s being harmed by the former president’s allegedly illegal appearance on the ballot. He says Trump is siphoning support and donations that could otherwise go to him. Castro says Trump can’t appear on the ballot because he’s guilty of “insurrection,” and it’s the duty of New Hampshire state officials to remove him under the 14th Amendment.

That’s the same argument used by Colorado’s Supreme Court and Maine’s Secretary of State when they declared Trump ineligible to appear on the ballot in their states. The U.S. Supreme Court is expected to review those decisions soon.

Castro first made his claim last October. His case was dismissed after U.S. District Judge Joseph LaPlante ruled, in part, that a presidential campaign that managed to raise just $670 was not a serious candidacy. Castro appealed to the First Circuit Court, which sided with LaPlante, but left a crack open for Castro to try again.

“We conclude that for Castro to show that he was a ‘direct and current competitor’ at the time he filed his complaint, he must show, at the very least, that at that time he was ‘competing’ with the former President and that he was doing so in the 2024 New Hampshire Republican presidential primary itself,” the First Circuit ruled in November.

Castro filed a new lawsuit last month, claiming he can now prove he’s a real candidate. With a little help from his family.

David Garza is Castro’s personal assistant and one of only two identified campaign volunteers supporting the Castro 2024 effort. He’s also Castro’s brother-in-law. 

Garza testified before U.S. District Court Judge Samantha Elliott on Wednesday that he and his cousin, Alexander Gomez, flew to New Hampshire the day after LaPlante’s ruling to get serious about the campaign. (Gomez is also an employee of Castro’s tax business.)

The pair flew to Manchester on Oct. 27, drove to Concord, checked into their hotel, got some dinner, watched some baseball, and planned out their big day to follow before turning out the lights. 

The next day, armed with about 30 Castro campaign yard signs, the pair drove south to a New Hampshire city Garza called “Noshua.” That conflicted with the testimony of Gomez, who testified he thought the city was called “Joshua.”

Whatever the city, they picked a residential street at random and got down to the hard work of campaigning for president. Garza and Gomez knocked on between 10 to 12 doors to ask if they could put up Castro signs. After getting 10 to 12 rejections, they decided to start putting the signs up on vacant lots somewhere between Joshua (or Noshua) and Manchester, Garza testified.

Elliott halted the proceedings and stopped Garza’s testimony when it became clear he may not have sought permission from the owners of the vacant lots, possibly violating New Hampshire election law.  

After posting between 12 to 15 lawn signs in legally dubious locations, the pair went to brunch, did some antiquing, and then headed back to their hotel to watch more baseball. That evening, the cousins went to a Halloween festival in Concord. Asked if they used the festival as an opportunity to campaign for Castro, Garza said they were off the clock.

“We were very tired at the time, and we just wanted to be ourselves,” Garza testified.

The pair claimed they also spent a day on the campaign trail in Arizona in early November but only managed to put up about five signs due to the hard desert ground, they testified.

As for the candidate himself, Castrol told the court that, while he cannot identify a single New Hampshire voter who is supporting him for president in the primary, he has spoken to some. And, he argued, because his social media campaign has reached thousands of people in the Granite State, the laws of statistical probability indicated he must have certainly reached at least one Republican voter at this point in his campaign.

Castro has dozens of lawsuits filed across the country trying to boot Trump from state ballots, and he’s repeatedly said his presidential campaign is simply part of his anti-Trump legal strategy. But on Wednesday, he told the court he should be treated as a viable candidate. Now that that former Vice President Mike Pence and South Carolina Sen. Tim Scott have dropped out of the race, Castro says he has a real chance.

Castro’s campaign raised nearly $800 in donations for all of 2023, though nothing from any New Hampshire resident.

Elliott is expected to rule on the case in the coming days.