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Nashua has taken its flag-ban fight inside.

For years, the city has attempted to block citizens from flying flags it disapproves of on public flagpoles outside City Hall. Now, officials are considering a ban on signs, banners, and flags inside the aldermanic chambers as well. Some aldermen are unhappy about what members of the public are saying with their signs.

Like calling them “asshats.”

Alderman Rick Dowd is leading the push for an ordinance that would prohibit any display items in the chambers during public meetings.

“There’s no need for debate. This ordinance is going to make it a rule we can enforce,” Dowd said Monday night during a meeting of the Personnel/Administrative Affairs Committee.

According to Dowd, the signs, banners, and flags displayed at public meetings have gotten out of hand. He claims some attendees are blocking cameras and obstructing others’ views with large signs, and that the displays could potentially block emergency exits. While Nashua previously operated under an unwritten “gentlemen’s agreement” against such displays, Dowd said too many members of the public now ignore that tradition and bring their signs anyway.

“We need to embrace this ordinance to be fair to everyone who comes to our meetings,” Dowd said.

But before the meeting, the New England First Amendment Coalition (NEFAC) raised concerns. NEFAC President Gregory Sullivan and Executive Director Justin Silverman sent aldermen a letter warning that the ordinance, as written, may violate the First Amendment.

“While there may be circumstances that would allow reasonable restrictions on these types of expression, a general prohibition based on a ‘security concern’ without any additional guidance as to what would constitute such a concern is ripe for impermissible viewpoint discrimination. The current language of O-25-060 does not include such guidance. It also allows for these forms of expression to be prohibited without any explanation provided by the Board,” Sullivan and Silverman wrote.

“Worse, the analysis accompanying the ordinance provides that the rule on banners, flags, and signs can be waived at any time, which encourages viewpoint discrimination and favoritism—both prohibited by the New Hampshire state constitution and the First Amendment of the U.S. Constitution.”

Aldermen Ben Clemons and Tim Sennott expressed concern that Dowd’s ordinance goes too far to address a problem they say has already been resolved. Aldermen already have the authority to ban vulgar or disruptive displays and speech during meetings. They can also remove individuals who attempt to electioneer during public sessions.

“That’s one of the shortcomings of the First Amendment—someone’s always going to push the envelope,” Sennott said.

Clemons argued that any new ordinance should make room for legitimate visual aids or other valid forms of political speech during public comment.

“There has to be a middle ground somewhere,” Clemons said.

Committee Chair Alderman Shoshanna Kelly demonstrated that middle ground at the start of Monday’s meeting. Resident Paula Johnson brought a pasteboard to illustrate the types of displays the public has used in the past to make points about city government policy. The next speaker, resident Laurie Ortolano, brought pieces of paper with slogans like “Derek T. is an Asshat” printed on them. Kelly cut her off and took away the remainder of Ortolano’s speaking time.

“We have the authority to make rules about what we allow or don’t allow. This is our meeting, and we need to make sure it is expedient and that we can get done what we need to get done,” Kelly said later.

Ortolano’s sign appeared to refer to Alderman Derek Thibeault, one of several board members she has publicly sparred with in recent years.

The presence of a male player in a girls’ soccer game was all the justification Bow School District officials needed to crack down on protesting parents, according to a legal brief filed last week with the First Circuit Court of Appeals in Boston.

“While Plaintiffs cast their conduct at the Sept. 17 game as a ‘silent protest,’ the District reasonably viewed it as intimidation aimed at [biological male] 15-year-old Parker Tirrell,” wrote Bryan Cullen, attorney for the Bow School District, in the brief filed Friday.

SAU 67 is pushing back on an appeal filed by four Bow parents—Anthony Foote, Kyle Fellers, Nicole Foote, and Eldon Rash—who argue they have a First Amendment right to protest at school events. The group was disciplined last year after engaging in a silent protest against biological males participating in girls’ sports. Anthony Foote and Fellers were temporarily banned from all after-school events.

At the game between Bow High School and Plymouth High School—where Tirrell plays for the girls’ soccer team—the parents wore pink “XX” wristbands to express their opposition.

In April, U.S. District Judge Steven McAuliffe denied the parents’ request for an injunction, ruling that the school had the legal authority to restrict protest activity.

“Because gender identities are characteristics of personal identity that are ‘unalterable or otherwise deeply rooted,’ the demeaning of which ‘strikes a person at the core of his being,’ and because Bow school authorities reasonably interpreted the symbols used by plaintiffs, in context, as conveying a demeaning and harassing message, they properly interceded to protect students from injuries likely to be suffered,” McAuliffe wrote.

McAuliffe’s assertion that gender is “unalterable”—in a case involving a biological male altering his public identity to female—struck some observers as contradictory. Many political analysts believe the ruling could ultimately be overturned by the U.S. Supreme Court, which is set to hear related cases next year.

The Institute for Free Speech, representing the protesting parents, filed an appeal in June, arguing that Bow officials are engaging in viewpoint discrimination by banning their protest while allowing pro-LGBTQ+ displays.

“Bow school officials violate this rule by banning adult spectators from silently protesting against biological males competing in girls’ sports by wearing XX wristbands on the sidelines or displaying signs in a parking lot, while allowing other spectators to display Pride flags or ‘inclusionary’ sociopolitical messages at those same events and in the same places,” wrote Del Kolde, senior attorney at the Institute. “In a limited public forum like a school sporting event, such restrictions amount to textbook viewpoint discrimination.”

Tirrell is central to both Cullen’s argument and McAuliffe’s ruling. The transgender student made headlines before the Sept. 17 game due to a high-profile lawsuit against the state of New Hampshire challenging its law barring biological boys from participating in girls’ sports. With support from GLAD and the ACLU of New Hampshire, Tirrell and fellow transgender student Iris Turmelle won the right to try out and compete on their respective girls’ teams with a favorable court ruling on Sept. 10.

Bow officials anticipated potential disruption at the Sept. 17 game after Foote and Fellers voiced objections to biological boys playing against their daughters. Cullen argued that because Tirrell would be playing, the district had a duty to protect the player from any perceived harassment, including the wristbands.

Cullen went further, asserting that because school officials may not know in advance whether transgender students are attending a given event, they are justified in restricting the free speech rights of Foote, Fellers, and Rash at all future games and after-school activities.

“As the District explained at the preliminary injunction hearing, it is not always known to school officials who may identify as transgender or whether transgender students will or will not be attending a given event,” Cullen wrote. “The District needs the leeway to restrict Plaintiffs’ message from all school events because school officials are unable to know which students will be attending which events.”

He concluded: “Plaintiffs have no constitutional right to ‘silently protest’ school-sponsored events, whether it is the girls’ varsity soccer games or other events throughout the academic year.”

The case has already drawn national attention. U.S. Attorney General Pam Bondi criticized McAuliffe’s ruling earlier this year.

“I have asked my Civil Rights Division to examine this matter,” Biondi posted on Twitter/X. “This DOJ stands with women and their supportive parents.”

NHJournal has not confirmed what, if any, action the Civil Rights Division has taken since McAuliffe’s ruling was issued in April.

The fight over Nashua’s City Hall Plaza flagpole isn’t over as residents Beth and Stephen Scaer filed an appeal with the First Circuit Court of Appeals in Boston this week, arguing the city is abusing the law to get away with First Amendment violations.

The Scaers, represented by the Institute for Free Speech, took Nashua to court last year after city officials denied them permission to fly an ‘Appeal to Heaven’ Pine Tree flag on City Hall’s “Citizens’ Flag Pole.” According to the lawsuit, the city used vague language in its 2022 flagpole policy to deny the request.

In March, United States District Court Judge Landya McCafferty ruled against the couple. In her ruling, McCafferty agreed with Magistrate Judge Talesha Saint-Marc’s December report on the case which argued the city is exempt from First Amendment considerations thanks to the flagpole policy that defined the pole as government property. 

“[Saint-Marc] correctly found that the undisputed facts indicate that the flags displayed on the Citizen Flag Pole pursuant to Nashua’s 2022 Flagpole Policy constituted government speech not regulated by the First Amendment,” McCafferty wrote.

But Nathan Ristuccia and Endel Kolde, the attorneys representing the Scaers, say in their appeal that Nashua is simply using government speech rules to engage in viewpoint discrimination.

“Nashua officials believe that they can manipulate government speech doctrine to subsidize viewpoints that they like and discriminate against citizens whose views they disfavor, Ristuccia and Kolde write. “The City has sought to maintain a Citizen Flag Pole in front of City Hall as a forum for favored constituents, while using its written policies to create a superficial appearance of compliance with controlling precedent. But the city discriminates against minority and dissenting views—exactly those views that need First Amendment protection.”

From 2017 through to 2022, Nashua allowed residents to fly flags at the City Hall Plaza with no written policy for oversight or content restriction. After the city of Boston lost a United States Supreme Court case for banning a Christian group’s flag from its citizens’ City Hall flag pole, Nashua created a written policy to give officials veto power over citizens’ flags. In so doing, according to McCafferty’s ruling, Nashua transformed the flagpole from being a free speech zone, into a government speech zone.

But Ristuccia and Kolde point out that Nashua rejected flags it did not like before the 2022 policy was written.

“Both before and after the formation of the 2022 policy, Nashua officials rejected flags whose messages they disfavored,” Ristuccia and Kolde write.

According to the AmericanFlags.com website, the Appeal to Heaven flag was designed by Colonel Joseph Reed, who served as the personal secretary to George Washington. Originally commissioned for use on six military cruiser ships, the flag was adopted on October 21, 1775. It became the official Massachusetts Navy flag in 1776.”

The pine tree was a symbol of New England and its wealth of natural resources in colonial America. The “Appeal to Heaven” message is a reference to British philosopher John Locke, whose writings on self government greatly influenced the founders.

The Scaers wanted to fly the Appeal to Heaven flag to commemorate Granite Staters who fought in the Battle of Bunker Hill in the opening days of the Revolutionary War. But the city rejected their application on the grounds that the Pine Tree flag “is not in harmony with the message that the City wishes to express and endorse.”

Nashua has allowed residents to fly flags celebrating different religious sects, nationalities, and sexual identities for years. However, Nashua began to take a dim view of some flags, especially those proposed by the Scaers.

Beth Scaer got permission to fly a “Save Women’s Sports flag” for one week in 2020, but it was removed after 24 hours and city staff told her it was “transphobic.”

Stephen Scaer applied to fly a “Detransitioner Awareness Flag” in 2024 to commemorate people who reverse their sex change procedures. He was also told that the symbol “is not in harmony with the message that the City wishes to express and endorse.”

City Attorney Jonathan Barnes argued in court that flying the Pine Tree flag was akin 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 in court.

The Pine Tree flag is a patriotic symbol with a history with links to the 1772 Pine Tree Riot in Weare, N.H. It was one of the earliest acts of rebellion against British authority in the American colonies, and predates the Boston Tea Party. The dispute, over enforcement of British laws restricting the use of valuable white pine trees, resulted in a group of local men storming the inn in Weare where representatives of the British government were staying and driving them out of town.

The flag was a popular symbol of resistance among New England colonists and its use spread through the Continental Army. George Washington had the flag flown from schooners commissioned for the war.

But, recently, the flag has also been adopted by some right-wing extremists. The flag is used by some in the Christian Dominionist sphere who advocate overthrowing democracy in order to create a Christian theocratic form of government.

The Bow School District was acting within its authority to kick two soccer dads out of a girls game for wearing pink “XX” wristbands as a silent protest against biological males playing on girls’ teams, a federal judge ruled Monday.

But one of the dads, Anthony Foote, told NHJournal he plans to keep fighting for what he sees as the rights of women and girls.

“What was our offense? Supporting girls’ sports and defending biological reality?” Foote said. “This ruling is a slap in the face to every parent who believes schools should be a place of fairness, not political indoctrination. The judge openly admitted that Pride flags are allowed because they promote ‘inclusion,’ but wristbands defending women’s sports are banned because they might ‘offend’ someone. That’s viewpoint discrimination, plain and simple — and it’s unconstitutional.”

United States District Court Judge Steven McAuliffe ruled against Foote, Kyle Fellers, Eldon Rash, and Nicole Foote in a 45-page order denying their preliminary injunction against SAU 67. The parents are being represented by the Institute for Free Speech, a legal nonprofit that promotes parents’ rights. Del Kolde, the senior attorney, said he is still considering his next steps in this case.

“We strongly disagree with the Court’s opinion issued today denying our request for a preliminary injunction. This was adult speech in a limited public forum, which enjoys greater First Amendment protection than student speech in the classroom. Bow School District officials were obviously discriminating based on viewpoint because they perceived the XX wristbands to be ‘trans-exclusionary.’ We are still evaluating our options for next steps,” Kolde said.

The crux of McAuliffe’s ruling is that while Fellers, Foote, and the others acted within their First Amendment rights to protest, venues like school athletic events are considered “limited public forums” and school officials acted within their legal authority to restrict what the parents said and did.

“The question then becomes whether the School District can manage its athletic events and its athletic fields and facilities — that is, its limited public forum — in a manner that protects its students from adult speech that can reasonably be seen to target a specific student participating in the event (as well as other similar gender-identifying students) by invited adult spectators, when that speech demeans, harasses, intimidates, and bullies. The answer is straightforward: Of course it can. Indeed, school authorities are obligated to do so,” McAuliffe wrote.

For days before the Sept. 10, 2024, game, Anthony Foote and Fellers made it known to school officials that they were unhappy Bow High School was going to play a game against a girls’ team with a biological male player, Parker Tirrell. 

Days before the game, Tirrell made national news with a court victory against the state of New Hampshire’s law barring biological males from girls’ sports.

The dads went on social media to discuss various protest ideas, according to the evidence in the case. McAuliffe wrote that it is reasonable, given the context of the game, for SAU 67 administrators to be concerned that the potential protests would be interpreted by Tirrell as bullying and harassing.

And as such, the judge ruled, the school had the right to limit the dads’ speech.

“The message generally ascribed to the XX symbol, in a context such as that presented here, can reasonably be understood as directly assaulting those who identify as transgender women,” McAuliffe wrote. “Because gender identities are characteristics of personal identity that are ‘unalterable or otherwise deeply rooted,’ the demeaning of which ‘strikes a person at the core of his being,’ and because Bow school authorities reasonably interpreted the symbols used by plaintiffs, in context, as conveying a demeaning and harassing message, they properly interceded to protect students from injuries likely to be suffered.”

Fellers and Foote have maintained they were not targeting or harassing any particular student with their wristbands. McAuliffe ruled that, even accepting their stated intent not to harass Tirrell, the broader context for the game made the SAU’s actions reasonable and justified.

“While plaintiffs may very well have never intended to communicate a demeaning or harassing message directed at Parker Tirrell or any other transgender students, the symbols and posters they displayed were fully capable of conveying such a message. And, that broader messaging is what the school authorities reasonably understood and appropriately tried to prevent,” McAuliffe said.

Critics of the judge’s ruling say that it is clearly viewpoint discrimination and the judge’s view that “gender identity” is “inalterable” isn’t based on biological fact or in law.

McAuliffe has yet to rule on the permanent injunction. Fellers, Foote, and the other parents are seeking to allow them to protest at school games and other events. 

It’s not an Appeal to Heaven, but to the First Circuit Court of Appeals for Nashua residents Beth and Stephen Scaer in their Pine Tree flag fight with the city.

The Scaers filed a lawsuit seeking an injunction against Nashua after they were denied an application to fly the Revolutionary War-era banner, which includes the slogan “An Appeal to Heaven,” by Nashua officials. On Friday, lawyers for the Scaers’ filed notice in the federal court of their intention to go to the appeals court in Boston.

Last Month, United States District Court Judge Landya McCafferty denied their motion for a preliminary injunction, ruling the couple was likely to lose their case on the merits. McCafferty relied on Magistrate Judge Talesha Saint-Marc’s review and report of the case in her ruling. 

According to McCafferty and Saint-Marc, the city did not violate the Scaers’ free speech rights when it denied their flag application. They argue the city’s application process for requests to fly flags on the city’s Citizen’s Flag Pole is an example of an allowable government speech restriction that does not infringe on the First Amendment.

Nathan Ristuccia, an attorney with the legal nonprofit The Institute for Free Speech, insists the court is wrong and that the treatment of the Scaers, who are outspoken political conservatives, is viewpoint discrimination.

“The City of Nashua cannot manipulate government speech doctrine into a ruse for subsidizing viewpoints they like and discriminating against those they disfavor,” Ristuccia wrote in a motion arguing against Saint-Marc’s report. “The City has sought to maintain the Citizen Flag Pole as a forum for favored constituents while using its written policy to create a superficial appearance of compliance with (prior free speech ruling) Shurtleff v. City of Boston.”

In the past, the Nashua city government has allowed flags celebrating Pride Month, transgender rights, as well as ethnic heritage with the national flags of Greece and the Dominican Republic. However, the city has also rejected previous requests to fly symbols advocating pro-life politics, libertarianism, and protecting women’s sports from biological males. 

The city adopted a flag pole policy in 2022, after several rejected applications, that states in part, “[the] flag pole is not intended to serve as a forum for free expression by the public.”

Ristuccia calls the policy an attempt at invoking “magic words” to get around the First Amendment claims of people whose applications were rejected. The Scaers had their Pine Tree Riot flag rejected in 2024 when the city informed them the Revolutionary War banner is not “in harmony with city policies and messages that the city wishes to express and endorse.”

The city’s rejection of the Pine Tree Riot flags is not about Nashua officials harboring royalist sentiment. Instead, officials are being swayed by current political prejudices seemingly shared by Saint-Marc. In her report, Saint-Marc determined the flag the Scaers wanted to fly is a symbol that’s been coopted by the “far right.”

“The record also indicates that the flag was used during the Jan. 6, 2021 attack on the United States Capitol Building in Washington, D.C.,” Saint-Marc wrote.

City Attorney Jonathan Barnes likened the Scaer’s request to fly the Pine Tree Riot flag at city hall to flying a Nazi flag during his arguments in front of Saint-Marc.

“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 in court.

The 1772 Pine Tree Riot took place in Weare and is considered a pivotal event that led to the American Revolution. The flag has long been associated with patriotic movements. The Scaers wanted to fly the flag on the anniversary of the Battle of Bunker Hill to honor New Hampshire Minutemen.

A federal judge ruled Friday the City of Nashua did not violate resident Beth Scaer’s First Amendment rights when it denied her permission to fly the “Appeal to Heaven” Pine Tree flag on the citizen’s flag pole.

“The Magistrate Judge correctly found that the undisputed facts indicate that the flags displayed on the Citizen Flag Pole pursuant to Nashua’s 2022 Flagpole Policy constituted government speech not regulated by the First Amendment,” ruled United States District Court Judge Landya McCafferty.

For years, the City of Nashua had a policy of making a flagpole at City Hall available, upon request, to citizens who wanted to celebrate or demonstrate on behalf of an idea or group. In the past, that included the flags of Ireland, India, and Ukraine, along with the “Suffrage” flag, the “Children of the American Revolution” flag, and the Lion’s Club flag. Recently, city officials took down the New Hampshire state flag to make room for a “Progress Pride” banner.

What the city would not allow was the flying of a flag promoting women’s rights/girls-only sports or the historic “Appeal to Heaven” Pine Tree Flag. Nashua resident Beth Scaer told the city she wanted to fly the flag to commemorate the anniversary of the Bunker Hill battle, in which several New Hampshire residents took part.

The city refused.

“The flag is not in harmony with the message that the city wishes to express and endorse. Therefore, we must deny your request,” wrote Jennifer L. Deshaies, whose job title in city government is “risk manager.”

Scaer sued, and her cause was taken up by the Institute for Free Speech (IFS). The case went before Magistrate Judge Talesha Saint-Marc last year.

During testimony before Saint-Marc, City Attorney Jonathan Barnes compared flying the Pine Tree flag at City Hall to flying a Nazi flag.

“(The plaintiffs) 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.

In her report rejecting Scaer’s complaints, Saint-Marc called the flag a “far-right” symbol and noted it was flown by some participants in the Jan. 6, 2021 U.S. Capitol riot.

In fact, the pine tree was a common symbol of New England during the Revolutionary War era. The Pine Tree Flag was adopted as Massachusetts’ state flag for a brief period.

The symbol is also tied to the historic Pine Tree Riot in Weare, N.H., one of the first acts of rebellion leading up to the American Revolution.

As for Jan. 6, free speech advocates note the most commonly flown flag by the rioters was the U.S. flag, which currently flies in front of Nashua City Hall.

McCafferty was unmoved.

The legal issue in dispute is the city’s claim that the so-called Citizen’s Flagpole was never, in fact, a free speech forum, despite the many flags flown by many residents to promote various causes. The city insists every flag was a form of “government speech not regulated by the First Amendment,” as McCafferty ruled.

The Greek national flag flies outside Nashua City Hall on the city flagpole usually reserved for the POW-MIA flag.
(CREDIT: Beth Scaer)

The IFS points out that Nashua Mayor Jim Donchess suddenly (and quietly) ended the city’s flagpole policy soon after the lawsuit was filed. ‘The flagpoles on city hall grounds shall henceforth be exclusively controlled by city government,” Donchess declared.

“The abrupt repeal of Nashua’s flag policy is a tacit admission that the old policy was unconstitutional,” IFS attorney Nathan Ristuccia told NHJournal at the time.

On Monday, Ristuccia told NHJournal there will be an appeal.

“We fully intend to appeal this decision to the First Circuit, where we’ll continue arguing that Nashua’s vague and subjective flag policy created exactly the kind of viewpoint discrimination the Supreme Court has repeatedly found unconstitutional.”

Meanwhile, the city’s flag policy continues to raise questions. Just days before McCafferty’s ruling, the city pulled down the POW-MIA flag that traditionally flies outside City Hall and replaced it with the national flag of Greece. It was, according to a statement from the city, to commemorate Greek Independence Day on March 25.

“I don’t know why they ditched the POW-MIA flag, but I think it is disrespectful,” Scaer told NHJournal.

With spring sports starting soon, the parents suing the Bow School District over their silent protest want a ruling before players hit the field.

On Wednesday, attorneys representing the parents filed a request for an expedited decision on their request for a preliminary injunction keeping the school district from banning future protests. And, their lawyers told the court, if a ruling is delayed so long it keeps these parents sidelined, they will consider that a denial of their request for relief and pursue an appeal.

Anthony Foote, Kyle Fellers, Nicole Foote, and Eldon Rash were forced to end a silent protest — the wearing of pink wristbands marked with “XX” on the sidelines of the high school soccer field — by angry school administrators last September. They were protesting the fact that their girls team was being forced to compete against a biological male. 

After Foote and Kyle Fellers were slapped with “no trespass” orders from the school, orders enforced by the local police, the parents filed a lawsuit against the Bow school district.

The parents are being represented in court by legal nonprofit organization the Institute for Free Speech.

The lawsuit was filed in September, and United States District Court Judge Stephen McAuliffe has already conducted two days of evidentiary hearings and been fully briefed by both sides in the lawsuit, attorneys for the parent’s said.

But the court has yet to act on their request for a preliminary injunction protecting their First Amendment right to bring their wristbands to games during the upcoming spring sports season. In their view, it’s literally a case of justice delayed being justice denied.

“Spring sports season is the last chance for Plaintiffs to silently express their sociopolitical views at a Bow event this school year, and—because one of Plaintiffs’ children is a high-school senior—the last chance to ever express their views at one child’s events,” the motion states.

“Parties completed their post-hearing briefing on Dec. 17. No decision on the injunction has yet been issued. The winter sports season has now ended, and the Bow schools’ spring sports season begins March 24, with games commencing April 14.”

Two biological males who have been playing on girls sports teams are currently suing in federal court to block a New Hampshire state law protecting girls sports. When President Donald Trump issued an executive order doing the same thing, they added the president to their lawsuit.

One of those players, Plymouth High School’s Parker Tirrell, was on the team Bow was competing against during the previous silent protest.

McAuliffe previously overturned the Bow School District ban against the parents attending games and after-school activities. But he has not yet lifted the ban on wristbands or other forms of silent protest.

As the calendar progresses toward the new sports season and the final season for at least one of the girls, Feller, Foote, and the others want a decision now.

“Plaintiffs have been prevented from silently protesting at Bow School District extracurricular events during both the fall and winter sports seasons. Everyday that passes magnifies Plaintiffs’ injury. Unless they receive injunctive relief from this Court, they will not be able to express their viewpoint during the spring sports season as well, including all of one daughter’s remaining games as a high-school student,” the motion states.

“If no ruling occurs by April 14, Plaintiffs will understand this Court to have constructively denied the injunction, and pursue interlocutory appeal of that denial.”

McAuliffe has acknowledged there is nothing bigoted in the parent’s beliefs that biological males who identify as female should not play full-contact sports with biological girls.

“You’re entitled to your viewpoint, a lot of people hold it,” McAuliffe said.

In fact, polls show a solid majority of Americans support protecting girls sports from biological males. But Bow Superintendent Marcy Kelly doesn’t agree, and she told the court that expressing that view is offensive speech that should be banned.

“XX is a pretty well-known anti-trans symbol,” Kelly said on the stand.

Other controversial symbols, such as the LGBTQ “rainbow flag,” would be welcome, however.

“It’s inclusionary, it’s not targeting or harassing anyone,” Kelly said.

Forget St. Nick; someone in Concord may end up on Satan’s naughty list after The Satanic Temple’s Baphomet statue was destroyed Monday night in an act of yuletide mayhem.

Concord Deputy Police Chief John Thomas told NHJournal that while the investigation into the vandalism is active and ongoing, he can rule out at least one possible suspect.

“Santa wouldn’t do this,” Thomas said. “Santa loves everybody.”

The statue of the hooded demon was found broken in half around 7 p.m. Monday night, a few hours after the marble slab showing The Satanic Temple’s seven principles was cracked. 

State Rep. Ellen Read (D-Newmarket), who helped organize The Satanic Temple’s display, was spotted gathering up the broken shards of the goat-headed figure Tuesday morning after getting a call about the destruction. She’s not sure if members of The Satanic Temple plan to put their monster mannequin back together.

Rep. Ellen Read (D-Newmarket) puts Baphomet’s legs in her car.

Representatives of the Vermont and New Hampshire-based temple did not respond to a request for comment.

City officials were not thrilled about the addition to the public space when the Baphomet display went up this weekend on the Concord City Square in front of the State House. The square typically plays host to a traditional nativity scene depicting the birth of Jesus.

A statement issued by the City of Concord indicates the permission for the sulphuric statue’s inclusion came under threat of a lawsuit. 

“Under the First Amendment and to avoid litigation, the City needed to choose whether to ban all holiday displays installed by other groups, or otherwise, to allow it,” the statement reads. “After reviewing its legal options, the City ultimately decided to continue the policy of allowing unattended displays at City Plaza during this holiday season and to allow the statue. It is anticipated that the City Council will review next year whether permits for unattended holiday displays should be allowed at City Plaza.”

Cornerstone, a New Hampshire Christian advocacy organization, has mocked the display as a childish and insincere attempt to promote an anti-religious agenda, not an expression of actual spiritual beliefs.

“The Satanic Temple are not Satanists. They have no religious belief in any Satan figure. They are normal, atheist feminists who use Satanic imagery as a legal tactic, to fundraise through media exposure, and because offending Christian grandmothers brings a sense of meaning to their sad lives,” it said in a statement.

Cornerstone acknowledges there are people with pagan or even Satan-centric religious beliefs, but said those behind the State House display aren’t among them.

“If you remember the 1990s, you might have the wrong idea about who put up the ‘Satanic’ statue in Concord, New Hampshire this weekend,” the group posted on social media, “‘The Satanic Temple’ is not Charles Manson: it’s just your liberal feminist aunt trying to trigger you by mocking your faith.”

Rep. Joe Sweeney (R-Salem) sent out a fundraising email from the state GOP Committee to Select House Republicans, arguing Republicans can defend against devils real and, like Baphomet, imagined. 

“We know this is another step in a growing push to undermine the values that make our state special, and to make you feel offended and turned off from getting involved. From offensive displays to legislation that challenges our way of life, New Hampshire Democrats have aligned themselves with the extremism that threatens Granite Staters’ families and freedoms,” Sweeney wrote.

Members of The Satanic Temple, much like members of the Church of Satan, profess an atheistic creed that uses the dark cloak of Satan to shock mainstream society while preaching self-actualization. The Satanic Temple is known for its liberal advocacy in favor of abortion rights, transgender rights, and free speech, not entirely dissimilar to Unitarians.

Though Santa is not a suspect, Rudolph’s whereabouts on Monday are still unknown.

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