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The Israeli flag, the white and blue banner with the Star of David, is the official symbol of the state of Israel, one of America’s closest allies. And yet the City of Nashua told a federal judge Israel’s flag is too controversial to fly at City Hall Plaza.

The Pride flag, on the other hand, is more than welcome on Nashua city property, despite being an entirely political symbol of the LGBT movement.

Nashua’s Assistant Corporation Counsel Jonathan Barnes said flying Israel’s flag would spark a flood of angry phone calls and threats, while “reasonable citizens” wouldn’t be bothered by the Pride flag.

Those revelations came last month in federal court as part of the city’s legal defense against a lawsuit filed by resident Beth Scaer. The city rejected her requests to fly the Pine Tree Riot flag and a banner promoting girls-only sports on Nashua’s public flagpole. Scaer claims she’s the victim of viewpoint discrimination by the Democrat-controlled city. She is represented by the Institute for Free Speech and local counsel Roy McCandless.

In the wake of the lawsuit, Nashua Mayor Jim Donchess quietly ended the city’s community flag pole tradition.

During the Nov. 5 hearing before Judge Talesha Saint-Marc, Nashua’s Assistant Corporation Counsel Jonathan Barnes compared the Pine Tree Riot flag to a Nazi flag and a flag for the Soviet Union.

Barnes also brought up the city’s decision to reject a request by Nashua resident Nick Scalera to fly the Palestinian flag on a day set to remember the anti-apartheid movement in South Africa. He says that proves the city was not discriminating based on a particular viewpoint.

And, Barnes added, “If someone applied to fly the Israel flag, I would say you would probably reject that, too, because it’s just — you don’t want to wade into those waters. You want to be able to conduct your city business without getting inundated with angry phones, e-mails, and people threatening you on Twitter, or X, whatever it’s called now.”

Saint-Marc noted that “at one point the city accepted the Pride flag. That’s still a controversial position.”

Barnes responded by invoking American Freedom Defense Initiative v. King County (2016) In that case, ads featuring the images of Islamist terrorists were rejected by the transit system, which argued they weren’t suitable. AFDI sued, lost in the lower courts and the U.S. Supreme Court declined to take up the case. The district court ruled the space was a “limited public forum” and that the system’s restrictions were “reasonable and viewpoint neutral.” 

“In American Freedom Defense Initiative the ban on less controversial advertising was upheld. It wasn’t all controversial advertising,” Barnes argued.

“So, in the grand scheme of things, you know, there are Pride flags flown all over the country. The White House lights up with the colors in June. There are parades all over the country. There might be some people that are upset by that, but there are some people that are upset by the American flag. They would sooner (fly) the Soviet flag fly. Most reasonable citizens don’t find that subject matter to be controversial,” Barnes said.

“The Pride flag?” the judge asked.

“Correct,” Barnes replied.

“I think some reasonable citizens may disagree,” Saint-Marc said, to which Barnes replied, “Some might, but it’s less controversial than, say, a swastika.”

The city’s argument that the official flag of the nation of Israel is too controversial to fly, and suggesting that “reasonable citizens” would object, raised eyebrows.

“The City of Nashua’s terrifying argument demonstrates why free speech is so important,” said Institute for Free Speech attorney Nathan Ristuccia. “We cannot trust the government to decide whose views are too controversial to be permitted.”

Steve Bolton, Nashua’s long-time lead corporation counsel, tried to clean up the city’s position. He told NHJournal Barnes’ comments about Israel were part of a speculative argument that does not reflect the views of Mayor Jim Donchess or the Board of Aldermen.

“It was hypothetical, but that’s certainly not the position of the City of Nashua,” Bolton said.

Barnes was not in the office Wednesday and did not respond to requests for comment.

Israel is a United States ally and the only democracy in the Middle East. It’s also fighting a war against antisemitic terrorist organizations backed by Iran following the brutal Oct. 7, 2023, Hamas attack in which 1,300 people were murdered. 

For his part, Scalera does not understand how Nashua is deciding which flag to fly. He said he was told the city would not fly the Palestinian flag due to the ongoing war.

“The City of Nashua has not shied away from flying the flags of foreign nations, especially foreign nations involved in active conflict. For example, in the wake of Russia’s illegal and brutal invasion of Ukraine, the City proudly raised the Ukrainian flag in solidarity with the people of Ukraine, as well as the Ukrainian population here in Nashua,” Scalera told NHJournal.

Scalera was also told by members of the Board of Alderman that Nashua would not allow a flag from a territory, like Palestine, that is not officially recognized as a nation.

“However, Nashua has also raised the flag of Kurdistan, which is at this point in time an autonomous region, and hopefully one day a nation-state, but nevertheless was not one at the time of the flag raising,” Scalera said.

Documents filed in the case show the city recently approved a day celebrating the Dominican Republic, which is currently accused of ethnic cleansing for its handling of Haitian refugees. The city also flew a Pride flag last year on orders from Donchess. However, a request for a pro-life flag to celebrate the overturning of the Roe vs. Wade decision was rejected.  

“Censorship,” said state Sen. Kevin Avard (R-Nashua) when asked about the case.

“It all boils down to whom the mayor and alderman of Nashua are comfortable offending and who they would rather not. The Pine Tree ‘Appeal to Heaven’ folks, or the Rainbow Flag-LBTQ community. It doesn’t sound like they want to hear from people of faith.”

And Rep. Judy Aron (R-Acworth), a Jewish member of the New Hampshire House and an outspoken defender of Israel, called the city’s actions “sad.”

“If the leaders of the City of Nashua can’t handle free speech, then perhaps the decision to end the traditional program is sad and disappointing but probably a good decision.”

Aron offered her own solution. “They should just fly a white flag of surrender.”

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.”

The New Hampshire Attorney General’s Office issued a cease and desist order to Nashua Mayor Jim Donchess and three fellow Democrats on the city’s board of aldermen over their use of public property to promote their side of a 2021 political debate.

The issue was Proposition 2, which would make substantial changes to the way the city’s police commission is composed.

The government property used was the city’s PEG, or public access TV channels and equipment, which the Attorney General’s Office ruled Donchess and the aldermen used to campaign for their political views.

“Following an investigation, this Office determined that each of your messages constituted electioneering because your messages were specifically designed to influence the votes of voters on Ballot Question 2,” Assistant Attorney General Brendan O’Donnell wrote in the order dated Jan. 11. 

“The Mayor of Nashua and its alderman… remain subject to the prohibition against using government property or equipment to electioneer. Accordingly, this Office orders each of you to cease and desist from using city property, including but not limited to the City’s PEG channels and cable television equipment, to electioneer.”

O’Donnell’s order is directed at Donchess and Aldermen Ben Clemmons, Michael O’Brien, and Lori Wilshire. But Donchess told NHJournal he and his fellow Democrats had every right to take to the airwaves.

“I think (the letter) ignores First Amendment issues,” Donchess said.

Laura Colquhoun, the Nashua resident who filed the complaint, said Donchess and the others clearly broke the law.

“Please understand that political people should not be using public TV stations to sell their message to residents. If it was a debate with both parties showing up, that would not be a problem. However, when you only have one side going on the TV station, that is electioneering, and that is against the law,” Colquhoun told NHJournal.

In 2021, Nashua voters were set to vote on Proposition 2, which would make substantial changes to the way the city’s police commission is composed. Nashua is one of a handful of New Hampshire municipalities where an independent commission oversees the police department.

Nashua is unique in that the three civilian members of its commission are appointed by the Governor’s Office and confirmed by the Executive Council, not by local representatives like the mayor or board of aldermen. Donchess backed Proposition 2 to take back local control of commission appointments.

Under Proposition 2, the commission would be expanded to five members, with three appointed by the mayor, and two appointed by the board. All of the appointments would require board confirmation.

Donchess used Nashua’s local cable access station to make his case for the changes, recording a 15-minute presentation that aired 25 times before the municipal election. Clemmons, Wilshire, and O’Brien recorded their own separate presentation opposing Proposition 2.

“We never intended to do anything wrong,” O’Brien told the news site InDepth NH.

Proposition 2 ended up losing at the ballot box. Colquhoun later used the presentations for her complaint. O’Donnell’s cease and desist letter acknowledges that state law includes an exemption for public officials appearing in a news or information program. It states that while the separate presentations produced and aired by the politicians were a violation, if Donchess and the aldermen participated in a debate about Proposition 2 and had that broadcast on the station, they would not be violating the law.

O’Donnell’s cease and desist letter makes no sense, Donchess said. Both he and the three aldermen have an absolute free speech right to speak on political issues of concern to Nashua citizens.

“Both I and members of the Board of Aldermen were attempting to inform the voters about what the issues were pertaining to the ballot questions,” Donchess said.

Why two separate, competing presentations are against the law, but a debate on a particular issue is OK also makes no sense, Donchess said. It would still see elected officials making their arguments for an election issue on public cable. 

“I do not see a distinction between (a debate) and the two presentations on the police commission,” Donchess said. 

As with the rest of the country, it appears New Hampshire is pretty divided on the Paris Climate Agreement. At the state level, Republicans are applauding President Donald Trump’s decision to pull the United States out of the global climate pact, while Democrats are hoping to use the issue as political ammo in next year’s elections. At the local level, a couple cities, colleges, and universities are figuring out how they can commit themselves to reducing carbon emissions to show the rest of the world that not everyone agrees with Trump.

That division was very apparent Thursday during one of the last full House sessions of the year. Several House Republicans staged a walkout after Rep. Lee Walker Oxenham, D-Plainfield, was granted the right to speak on the House floor about Republican Gov. Chris Sununu’s decision not to join the U.S. Climate Alliance, a group of 12 states and Puerto Rico that are committed to upholding the Paris climate deal.

NH Reps narrowly ok member to speak on Climate Change. GOP choose to walk out. Forced to return. pic.twitter.com/uhO10aNfX7

— Raymond Gagnon (@gagnon03743) June 8, 2017

The representatives that walked out were forced to return to their seats because House Speaker Shawn Jasper needed quorum in order finish the day’s business. In her speech, Oxenham mentioned Trump’s withdrawal from the Paris climate accord and Republicans let out a cheer. The New Hampshire Democratic Party was quick to criticize Republican members for their actions.

“Rather than hear their colleague on a key issue, Republicans decided to continue to plug their ears in ignorance on climate change,” said Ray Buckley, NHDP chairman, in a statement. “In doing so, they are standing with Governor Sununu and President Trump against the rest of the world. This Republican walkout is symbolic of their willful ignorance on basic science.”

Sununu stated last week that he “stands by” Trump’s decision to leave the Paris Climate Agreement and he said Monday that New Hampshire would not join the U.S. Climate Alliance.

“Not at this time, especially when we do not yet know its impact on our economy and environment,” he told the Concord Monitor.

That drew criticism from U.S. Sens. Maggie Hassan and Jeanne Shaheen, and U.S. Reps. Carol Shea-Porter and Annie Kuster — all four members of New Hampshire’s Democratic congressional delegation — who wrote a Wednesday letter to Sununu encouraging him to change his mind.

“Governor, we write in support of New Hampshire joining the U.S. Climate Alliance. It is vital that the Granite State continues to be a leader on climate change and clean energy,” they wrote. “Just as the United States’ withdrawal from the Paris Climate Accord cedes American global leadership, New Hampshire’s refusal to acknowledge the clear consensus on climate science will similarly damage our state’s reputation.”

New Hampshire already participates in a regional cap-and-trade pact with nine other states in the Northeast that works to reduce carbon emissions. Under the Regional Greenhouse Gas Initiative, fossil fuel power plants have to buy allowances for every ton of carbon dioxide they emit. Sununu has previously indicated he would be support withdrawing from RGGI, but only if other states also did it.

While lawmakers battle it out at the State House on climate change, several cities and universities in New Hampshire are reaffirming their commitment to reducing greenhouse gas emissions.

A national movement called “We Are Still In” has gained steam since Trump made his announcement last week. As of Monday, a total of 1,219 governors, mayors, businesses, investors, and colleges and universities across the country declared their intent to ensure the United States remains a global leader in the effort to combat climate change.

“In the absence of leadership from Washington, states, cities, colleges and universities, businesses and investors, representing a sizable percentage of the U.S. economy will pursue ambitious climate goals, working together to take forceful action and to ensure that the U.S. remains a global leader in reducing emissions,” the statement reads.

While no Granite State cities have signed on to that specific statement, two colleges have joined the cause — the University of New Hampshire and Southern New Hampshire University.

In a separate statement from the Mayors National Climate Action Agenda, 274 mayors committed to adopt, honor, and uphold the Paris Climate Agreement goals.

“We will continue to lead. We are increasing investments in renewable energy and energy efficiency. We will buy and create more demand for electric cars and trucks,” the statement reads. “We will increase our efforts to cut greenhouse gas emissions, create a clean energy economy, and stand for environmental justice

Nashua Mayor Jim Donchess and Portsmouth Mayor Jack Blalock have signed on to that statement, but not the one from “We Are Still In.”

In other communities in the Granite State, Durham officials held a Tuesday forum about the feasibility of scaling down the targets of the Paris agreement to a municipal level. The town of Hanover also voted in May to establish a goal of transitioning to 100 percent clean and renewable energy by 2050.

Dartmouth College President Phil Hanlon didn’t sign on to the “We Are Still In” statement, but he signed onto a similar letter with the presidents of 11 other leading research universities. That letter commits the universities to transition to low-carbon energy and enhance sustainability practices on their campuses.

In the letter released Monday, the presidents “reaffirm that commitment, which is consistent with the Paris Agreement and recognizes the concerted action that is needed at every level to slow, and ultimately prevent, the rise in the global average temperature and to facilitate the transition to a clean energy economy. Universities have a critical role to play in reducing our own greenhouse gas emissions, continuing to advance evidence-based understanding of the causes and effects of climate change on the environment, the economy and public health, and developing solutions.”

The other signatories include all the Ivy League institutions, except Princeton University, and also Duke University, Johns Hopkins University, Massachusetts Institute of Technology, and Stanford University.

Earlier this year, Dartmouth announced it would reduce greenhouse gas emissions from campus operations by 50 percent by 2025 and by 80 percent by 2050. They also pledged to transition their campus to renewable resources by 2025.

In its announcement, Dartmouth admitted that it had fallen behind some of its peer institutions on a number of sustainability fronts.

“Although Dartmouth has substantially reduced campus energy use and made other significant advances over the last decade, we lag our peer institutions with respect to commitments, actions, and reporting in the sustainability domain,” the college released in its sustainability report. “Our report recommends principles, standards, and commitments in the areas of energy, waste and materials, water, food, transportation, and landscape and ecology.”

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