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The City of Nashua did not violate the First Amendment when it rejected resident Beth Scaer’s application to fly the Pine Tree “Appeal to Heaven” flag at city hall, a federal judge ruled this week. But a free speech organization representing Scaer says the fight is far from over.

Magistrate Judge Talesha Saint-Marc issued a report on Monday to Chief District Judge Landya McCafferty recommending the court deny Scaer’s request for an injunction against the city. Scaer was seeking the preliminary injunction to prevent Nashua officials from denying their flag permit applications, or closing down the public flag program.

After being slapped with a lawsuit over free speech violations for refusing to allow Scaer to fly the historic Pine Tree Flag, Nashua Mayor Jim Donchess quietly pulled down the city’s flagpole policy entirely.

Nathan Ristuccia, an attorney with the Free Speech Institute representing Scaer, called Saint-Marc’s report disappointing, but added it’s not the final word in the case. He plans to file objections to Saint-Marc’s report in the coming days.

“Although we are disappointed with the magistrate judge’s recommendation against the preliminary injunction, this is just one early step in the legal process for defending our client’s First Amendment rights,” Ristuccia said. 

Saint-Marc found that since Nashua’s original flag display policy explicitly states the venue is not a place for absolute free expression, city officials are not violating anyone’s rights when they choose to reject some flags. 

“During the time period relevant to the Scaers’ claims, Nashua maintained a written flagpole policy with identifiable guidelines of what it wished to communicate through the flags displayed on the Citizen Flag Pole,” Saint-Marc wrote. “The 2022 Flagpole Policy stated that the ‘potential use of a City flag pole is not intended to serve as a forum for free expression by the public.’”

Scaer’s attorneys argue having a policy doesn’t free the city from illegally practicing viewpoint discrimination.

Scaer filed her lawsuit against Nashua in September, claiming she was denied the ability to fly the historic Pine Tree flag at City Hall’s “Citizen’s Flag Pole.” According to Scaer’s lawsuit, the city used its vague policy to deny her request. The flag’s origins are linked to events in 1772 in the town of Weare, N.H. Colonists staged a pre-Revolution act of defiance against British rule. Scaer planned to fly the flag to commemorate the anniversary of the Battle of Bunker Hill.

But Saint-Marc again sided with Nashua when she noted that different symbols, like the Pine Tree flag, can have multiple meanings. In this case, the Pine Tree flag could be considered a symbol of the far right as much as a symbol of the Revolutionary War, she wrote.

“The record also indicates that the flag was used during the Jan. 6, 2020 attack on the United States Capitol Building in Washington, D.C.”

Scaer’s supporters are quick to note that far more U.S. flags were flown by rioters that day, and the American flag currently flies outside Nashua City Hall.

Representing the City of Nashua before Saint-Marc last month, attorney Jonathan Barnes compared flying the Pine Tree flag to displaying a Nazi symbol on Hitler’s birthday.

“I mean, [Ristuccia] would have you believe that we can raise the Nazi flag to commemorate Hitler’s birthday. I think that’s totally unreasonable, and it certainly wouldn’t be in the city’s best interests to do that,” Barnes said.

According to the transcript from the Nov. 5 hearing, Ristuccia did not advocate for the display of Nazi symbols.

Barnes also admitted to Saint-Marc that, under its policy, Nashua would ban the national flag of Israel at City Hall as well. The City has previously banned the Palestinian flag, a pro-life flag, and flags supporting people who detransition after sex change procedures.

Saint-Marc’s report will now go to McCafferty for a final decision on the injunction. Even if McCafferty agrees with Saint-Marc on the injunction, the case is far from over.

“The final decision about the preliminary injunction rests with the district judge, who may accept, reject, or modify the magistrate’s recommendation. As the case proceeds, we will continue fighting to protect the rights of every citizen to express their views freely, without government censorship,” Ristuccia said.

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