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Welcome to Nashua, where you can make any political statement you want — so long as city officials approve. Just as the Founding Fathers intended.

The Gate City’s attorney, Steve Bolton, stood before a three-judge panel of the 1st Circuit Court of Appeals in Boston on Tuesday and acknowledged that the city is discriminating against symbols it doesn’t like. That includes Steve and Beth Scaer’s Pine Tree flag.

Nashua found itself in federal court this week thanks to its 2024 rejection of the Scaers’ application to fly the Revolutionary War-era flag on the so-called citizens’ flagpole in front of City Hall.

“We agree that there is viewpoint discrimination,” Bolton told the court. “When a flag is raised under the new policy, 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?”

But Bolton’s argument is precisely the reason Nashua is in court, according to Judge Sandra Lynch, who sat on Tuesday’s panel. Lynch called Nashua’s flag policy the “essence of viewpoint discrimination.”

“Here’s the problem, counselor. Nashua has chosen to fly, on what are known as the citizens’ flagpoles, flags that are brought to it by private speakers who own the flags, who design the flags, and who come up with a message that the flags display. And then the government is using the force of government to choose among those viewpoints, and that is what government cannot do,” Lynch said to Bolton.

The Scaers, well-known conservative activists, wanted to fly the Pine Tree flag in the summer of 2024 to commemorate New Hampshire citizens who fought at the Battle of Bunker Hill. But the city rejected their application on the grounds that the banner — which has been embraced by some far-right activists — “is not in harmony with the message that the City wishes to express and endorse.”

Nashua’s government is under no legal obligation to allow speech it does not approve of on the citizens’ flagpole, Bolton said, since anything displayed at City Hall is considered government speech and not free speech.

“If this is government speech, which we say it is, the government is not required to give air time to opposing views,” Bolton said.

Nathan Ristuccia, the Institute for Free Speech attorney representing the Scaers, told the justices that Nashua is effectively killing a message it dislikes under the guise of government speech.

“A government cannot turn private speech into government speech simply by exercising final approval authority over that speech,” Ristuccia said.

Ristuccia and the Scaers want the 1st Circuit to overturn the March decision by U.S. District Court Judge Landya McCafferty that allowed Nashua to label any displays flown on the citizens’ flagpole as government speech subject to government control. McCafferty’s decision relied on the flagpole policy games Nashua played, Ristuccia argued.

“This demonstrates that Nashua’s attempt was to do exactly what the Supreme Court warned against — attempting to expand government speech in such a way as to cover all limited public forums,” Ristuccia said.

From 2017 through 2022, Nashua allowed residents to fly flags at the City Hall Plaza with no written policy for oversight or content restriction. Nashua created a written policy in 2022 to give officials veto power over the public flagpole in response to a U.S. Supreme Court ruling against the city of Boston for its refusal to fly a Christian flag. Nashua used that policy to reject the Pine Tree flag.

But when the Scaers challenged the rejection with their lawsuit last year, Nashua changed its policy yet again. The new 2024 policy states that flagpoles “shall henceforth be exclusively controlled by city government” and that Nashua “does not seek input from other sources” about what to fly. The 2024 policy still allows people to apply to fly their flags on city property — so long as the government approves of the message.

The 1772 Pine Tree Riot took place in Weare and is considered a preview of the conflict that led to the American Revolution. The flag was flown during the war by members of the Continental Army and has long been associated with patriotic movements and resistance to authoritarianism.

Free speech advocates are celebrating a win for religious expression after a judge threw out a criminal threatening case filed against a Somersworth man who posted a sign on a progressive church’s door.

The facts in the case were never in dispute.

A little before 4 a.m. on June 20 last year, Isaac Santiago, 50, posted a sign on the door of First Parish Church in Dover, a progressive congregation that prominently displays pro-LGBTQ images.

“Jesus is coming soon! The devil deceived you! God will never except [sic] LGBTQ. Be saved today, or you will perish in your sins! Repent and believe!” the sign read. Santiago didn’t attempt to enter the church, damage property, or confront any parishioners.

The dispute arose when prosecutors treated Santiago’s message as a criminal threat and attempted to have him convicted and jailed over what they said was a warning of spiritual consequences for pro-LGBTQ Christians.

On Tuesday, Strafford County Superior Court Judge Andrew Livernois granted a motion to dismiss the charges filed by Santiago’s attorneys.

“Assuming that the state were able to garner a conviction for criminal threatening in this case, it could not sustain a constitutional challenge under either the N.H. or United States Constitutions, because it would violate the defendant’s right to free speech,” Livernois wrote.

First Parish is a Congregational church that prides itself on its pro-LGBTQ community. Its ministers have performed same-sex marriage ceremonies for many years, and the church sign incorporates an LGBTQ rainbow. Santiago is a member of First Fruits Ministries in Manchester, which describes itself as a “first century Judeo-Christian Messianic congregation.”

“[Santiago] told the police that he viewed his actions as being part of his ‘ministry’; that God does not accept LGBTQ people, and that he was trying to spread that message, acknowledging that he may have gone about it in the wrong way,” Livernois wrote. “[Santiago] further told the investigators that he was not acting out of hate for anyone but did it ‘out of love’ and to share his religious convictions.”

While threatening speech can be prosecuted under the Constitution, Livernois ruled that Santiago’s short epistle, posted peacefully and late at night, did not rise to the level of an actual threat.

“The only portion of the sign which could arguably be viewed as threatening is the sentence that reads: ‘Be saved today or you will perish in your sins!’” Livernois wrote. “This could certainly suggest the idea of possible violence. But as [Santiago] points out, that language could also be interpreted as referring to the natural and inevitable death that every person will undergo.

“The ambiguity of the language undercuts the state’s position that the sign constituted a true threat. If it is a threat, it is quite vague and generalized.”

And, Liverois added, “except for certain narrow circumstances, the government cannot normally criminalize expressive conduct.”

Santiago was represented by Cornerstone Policy Research’s Ian Huyett, associate director and head of litigation, and attorney Rick Lehmann.

“It was a good day for free speech,” Lehmann said after the ruling.

Shannon McGinley, executive director of Cornerstone, said Livernois’s ruling protects all Christians who preach about sin and salvation.

“This case illustrates a serious risk: Because Santiago was charged solely for the content of his religious speech — and not for placing a sign on church property — allowing this prosecution to proceed would have left other Christians in New Hampshire vulnerable to criminal charges simply for warning others about hell and the judgment of God, even without any accompanying conduct,” McGinley said.

The case echoes the current legal dispute involving the Bow, N.H., school district, which banned parents from wearing pink wristbands with “XX” on them to protest a biological male playing on a high school girls’ soccer team. The district argued that it was the message, not the protest itself, that was “threatening,” and that parents were free to display pro-LGBT messages if they chose. U.S. District Court Judge Stephen McAuliffe affirmed that view in his ruling, which is being appealed.

Appeals court judges appeared dubious of that argument during a hearing in Boston earlier this month.

Andrew Manuse, lead pastor of First Fruits, hopes other Christians will take heart from Santiago’s court victory.

“I support Mr. Santiago’s message to First Parish Church in Dover, which was a loving call for errant leaders and members to turn away from their sins of affirming LGBTQ and repent to live in the righteousness and grace of Jesus Christ. More Christians need to stand firm in their faith as he has done.”

When a citizen criticized its progressive transgender policy at a public hearing, the Kearsarge Regional School Board put its foot down.

And stepped right into it.

The affluent district, which spends about $33,000 per student, has settled a lawsuit filed by activist Beth Scaer, agreeing to drop its “no derogatory comments” policy and commit to viewpoint-neutral treatment of all speakers. The district will also pay $33,000 in costs to Scaer’s legal team, as well as the non-profit Institute for Free Speech.

“Government by the people depends on the freedom of all citizens to dispute the most controversial issues of the day without censorship,” said Institute for Free Speech Attorney Nathan Ristuccia, the lead litigator in the case. “We are proud that we were able to help Beth Scaer protect the rights of all Americans to participate in political debate.”

The board used its constitutionally-suspect “no derogatory comments” policy during a 2024 public meeting to shut down Scaer’s comments after she referred to a biologically male athlete who competes on a girls’ soccer team as a “tall boy” and drew attention to the student’s physique. Board Chair Alison Mastin reportedly threatened to have police intervene against Scaer during the meeting because of her “derogatory” comments.

Scaer brought the lawsuit after she was silenced during the Kearsarge meeting that was called to discuss the Fairness in Women’s Sports Act. At the time the board silenced her, Scaer was attempting to discuss biological differences in athletic competition.

Other members of the public at the same meeting, however, were permitted to display signs with the student-athlete’s name and to use harsh and arguably offensive language to express their viewpoints — at odds with Scaer’s — without interruption. Those attendees were not found in violation of the school policy. Ristuccia said the settlement provides new protections against such unconstitutional enforcement.

The school district has also ended the practice of allowing biological males who identify as female to play on girls’ sports teams. And it’s writing a check to Scaer for $17.91, a symbolic evocation of the year the Bill of Rights was ratified.

All of the payouts will be covered by Primex, the district’s insurance company, and the agreement not involve any admission of wrongdoing. Instead, the settlement explicitly states it is to “buy peace” from further litigation or controversy.

“I’m pleased that the school board has agreed to important changes that will protect every citizen’s right to speak at public meetings,” Scaer said. “This settlement ensures that what happened to me won’t happen to others. Citizens can’t meaningfully participate in democracy when officials can silence them based on vague, unwritten rules.”

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.