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Nashua (N.H.) Exclusion of "Save Women's Sports" and "Detransitioner Awareness" Flags from City-Owned "Citizen Flag Pole" Violated First Amendment
From Scaer v. City of Nashua, decided today by First Circuit Judge Sandra Lynch, joined by Judges Gustavo Gelpí and Jeffrey Howard:
On City Hall Plaza, the government property outside of [Nashua] City Hall that is open to the public, there are four flagpoles of varying heights. Until 2017, Nashua exercised exclusive control over the flags flown on the poles, choosing to display only government flags such as the American flag and the New Hampshire state flag. The City continues to exercise such control over three of the flagpoles. In 2017, after the election of Mayor James W. Donchess, who has since been reelected to that position, Nashua created what it called the "Citizen Flag Pole" as to one of the poles. The City's website, under the headings "Citizen Flag Pole" and "Fly a Flag," provided a statement, which in total read:
A pole in front of City Hall is reserved for the citizens of Nashua to fly a flag in support of their cultural heritage, observe an anniversary or honor a special accomplishment. Any group wishing to fly a flag must provide the flag….
Appellants Stephen and Bethany Scaer have resided in Nashua for three decades. Beginning in 2017, Bethany submitted and received approval for several applications to use the Citizen Flag Pole, including for flying the Luther Rose flag in honor of the 500th anniversary of the Protestant Reformation, the Lutheran flag, and a flag commemorating the ratification of the Nineteenth Amendment. For each approved request, Bethany supplied and raised the flag herself and organized a small flag raising ceremony not attended by any City officials.
Nashua initially approved Bethany's application to fly a "Save Women's Sports" flag, which the Scaers raised on October 10, 2020. The Scaers explain that the flag expresses their belief "that women have inalienable rights based on their biological sex that governments have a duty to protect and that allowing biological males to compete against women in sports denies women their rights and the equality due them under both the U.S. Constitution and Title IX." One day after the flag's raising, and after the City received complaints that the flag was transphobic, Nashua reversed its approval, revoked permission, and removed the flag from the Citizen Flag Pole.
Bethany appealed the decision to Mayor Donchess, who denied the appeal. He explained in a public statement on October 14, 2020, that Bethany's flag "contain[ed] a discriminatory message toward the transgender community" and that "Nashua is a welcoming community, in which we embrace all people and the contributions of all are celebrated and valued." Nashua's Corporation Counsel sent a letter to Bethany's attorney on November 11, 2020, stating that the Save Women's Sports flag "was outside of the parameters established for use of the citizen flag pole" and that use of that pole was "government speech."
Nashua's records reveal that from the Citizen Flag Pole program's launch in 2017 through 2020, the City did not reject a single request to fly a flag. That changed in 2020 when the City revoked permission for Bethany's Save Women's Sports flag and soon afterward denied an application to fly the "Porcupine" flag associated with the Free State Project and the Libertarian Party….
In May 2022, the Supreme Court decided City of Boston v. Shurtleff, holding that Boston's refusal to allow a private group to raise a religious flag on a flagpole outside City Hall violated the First Amendment's Free Speech Clause. Nine days later, saying it was responding to Shurtleff, Nashua adopted and posted to its website a written policy governing the use of what had previously been referred to as the Citizen Flag Pole and stating the City's position that use of that pole constituted government speech. The 2022 policy, which was signed by the Mayor and the Risk Manager on behalf of the City and captioned "Flag Pole Policy," provided in its entirety:
A flag pole in front of City Hall may be provided for use by persons to fly a flag in support of cultural heritage, observe an anniversary, honor a special accomplishment, or support a worthy cause. Any group wishing to fly a flag must provide the flag. This potential use of a City flag pole is not intended to serve as a forum for free expression by the public. Any message sought to be permitted will be allowed only if it is in harmony with [C]ity policies and messages that the [C]ity wishes to express and endorse. This policy recognizes that a flag flown in front of City Hall will be deemed by many as City support for the sentiment thereby expressed, [C]ity administration reserves the right to deny permission or remove any flag it considers contrary to the City's best interest.
Around the same time, Nashua also revised its "Special Events Procedures" on its website to include a section entitled "Request for Use of the City Flag Pole." That section required applicants to submit a photograph of their proposed flag and an explanation of the message intended to be conveyed. It did not provide details about which flags were permissible or impermissible. It noted that requests would be evaluated by the Risk Manager in accordance with the new policy. While the 2022 policy did not use the name Citizen Flag Pole, it did not disclaim use of that name, and both citizens and City officials have continued to use that name.
Since implementing the 2022 policy, Nashua has denied several of the Scaers' applications and others' applications to use the Citizen Flag Pole. In May 2022, Bethany applied to fly the Save Women's Sports flag in honor of the fiftieth anniversary of Title IX. In February 2024, Stephen applied to fly the "Detransitioner Awareness" flag and to host a small flag raising ceremony. {The Detransitioner Awareness flag depicts a blue-green lizard against a black background with the words "De-Trans Awareness" along the bottom. According to Stephen, the lizard was chosen for its ability to survive the loss of certain body parts and grow them back. He says the flag is meant to raise awareness about gender transitioners and the difficulties they face.} And in May 2024, Bethany applied to fly the "Pine Tree" flag to commemorate the anniversary of the Battle of Bunker Hill. That Pine Tree flag was also used during the January 6, 2021, attack on the U.S. Capitol. Nashua denied each request on the ground that the proposed message was not "in harmony with [C]ity policies" or one "that the [C]ity wishe[d] to express and endorse," and on administrative appeal the Mayor upheld each denial. For the same stated reason, Nashua also denied requests by other applicants to fly the "Pro-Life" flag and the Palestinian flag.
The key question before us is whether Nashua's Citizen Flag Pole program constituted government speech. If it did not, and instead operated effectively as a forum for private speech, Nashua violated the First Amendment in picking and choosing among viewpoints….
It is hard to see why the public would view flags on the Citizen Flag Pole as "government speech" when, for example, the government first approves the flying of a flag and later rescinds approval and removes the flag, not as a result of any change in government policy, but in response to criticism received from other members of the public; this sequence resembles a classic heckler's veto.
We also note that the City regularly permitted a rotating array of private flags, which conveyed different and sometimes dissonant messages. This evidences that the flag flying program was not primarily a vehicle for government expression. As the Court observed in Tam, if those various and dissimilar messages were government speech, then the citizens of Nashua could easily wonder whether Nashua was messaging "incoherently," and indeed what message the City "ha[d] in mind." …
Comparing the extent of Nashua's control over the flags flown on this pole with the degree of government involvement in the Supreme Court's most relevant precedents supports our conclusion. In Pleasant Grove City v. Summum (2009), the Court emphasized that the city "always selected which monuments it would place in its park (whether or not the government funded those monuments), and it typically took ownership over them." Nashua also never exercised the types and degree of control present in Walker v. Sons of Confederate Veterans (2015), where "a state board 'maintain[ed] direct control' over license plate designs by 'actively' reviewing every proposal and rejecting at least a dozen." Nor is the nature and degree of government control on these facts at all comparable to the town website and its hyperlink to a state-sponsored event website that we found to be government speech in Sutliffe v. Epping School District (1st Cir. 2009).
Nashua's lack of engagement in crafting the content or manner of expression on the Citizen Flag Pole under the 2022 policy supports our view that Nashua was doing no more than simply approving that private speech with which it agreed, despite operating the flagpole as what we conclude was a forum for such private speech. As the Supreme Court has cautioned, "[i]f private speech could be passed off as government speech by simply affixing a government seal of approval" without more significant government involvement, the "government could silence or muffle the expression of disfavored viewpoints." …
Nathan J. Ristuccia and Endel Kolde (Institute for Free Speech) and Roy S. McCandless represent plaintiffs.
