Revoking the Nashua flag won’t work, says a free speech advocate

Nashua Mayor Jim Donchess has faced a free speech lawsuit for denying residents the opportunity to fly a historic, patriotic flag at City Hall. He appeared to be backing down and repealing the public flagpole policy.

The repeal is not a warning signal, the city’s lawyers insist. But lawyers for the residents who filed the lawsuit say it is a decoy to avoid legal jeopardy.

Nashua resident Beth Scaer filed her lawsuit last month after the city denied her permission to fly a Pine Tree Riot flag on City Hall’s “citizen flagpole.” In its statement of opposition, the city said the Pine Tree Flag and a “Protect Women’s Sports” flag it previously tried to fly were “not consistent with the message the city seeks to express and support.”

After the lawsuit was filed, Donchess quietly ended the city’s long tradition of having a public flagpole, stating that in the future the Nashua government would decide which flags would fly and which would not, and would do so without community input.

But this repeal, which came without any public input or approval from the city’s City Council, is not enough to get out of legal trouble, stresses Scaer’s attorney Nathan Ristuccia of the Institute for Free Speech.

“This abrupt change is a blatant attempt to avoid judicial scrutiny, but it cannot undermine the Scaers’ claim to injunctive relief,” Ristuccia said in a court filing this week.

Ristuccia said the repeal is simply an excuse for Nashua to engage in censorship by silencing the views of residents who are out of step with the administration. But repealing the policy doesn’t change anything, he wrote. In fact, according to Ristuccia, Nashua and Donchess have said they have no plans to stop City Hall’s control of speech.

“If this court does not grant relief, defendant Donchess could restore the old policy just as easily as he repealed it. In fact, a Nashua spokesperson has publicly “denied that the mayor has made any change to the city’s flagpole policy” and stated that Donchess “merely clarified existing policy,” Ristuccia states in his motion.

These statements were made to NHJournal by Steven A. Bolton, the city’s business consultant.

Ristuccia said the existing City Hall Plaza Events policy uses the same language as the now-repealed flag policy to control the message people are allowed to express.

“Defendants operate a City Hall Plaza events policy that is nearly identical to the 2022 Flag Policy…ceremonies at City Hall Plaza are permitted only if the message of the ceremony is “consistent with City policies and messages.” the city wants to express and support”. and in the ‘best interests of the city,'” Ristuccia wrote.

The lawsuit stems from Scaer’s request to fly the so-called “Appeal to Heaven” flag, which features this phrase (from philosopher John Locke) and a pine tree. The pine tree is also a reference to the Pine Tree Riot of 1772, which took place in Weare, New Hampshire and is generally considered one of the first skirmishes of the American Revolution.

City officials rejected the request but did not explain why they found the flag offensive.

The Citizen Flag Pole in Nashua allowed any resident to apply for a permit to fly a flag at City Hall. Previous flags celebrated Pride Month, Indian Independence Day, Brazilian Independence Day, Greek Independence Day, International Francophonie Day and the anniversary of the founding of the Nashua Lions Club.

But Scaer says the city began censoring her in 2020, when her flag reading “Save Women’s Sports” was removed after a day of complaints from Councilman Jan Schmidt. In February, she was rejected again when she tried to raise a flag to support people coming out of gender reassignment surgery. The rejection said the message was “not consistent with the message the city seeks to express and support.”