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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.