Nashua, NH — Should a city be able to pick and choose whose messages are “worthy” to appear on its public “Citizen Flag Pole?”

The City of Nashua thinks so. A new federal lawsuit aims to change that.

Attorneys from the Institute for Free Speech and local counsel Roy S. McCandless filed the lawsuit in the U.S. District Court for the District of New Hampshire on behalf of Bethany and Stephen Scaer (pronounced “scare”), two Nashua residents whose flag requests have been denied.

The suit challenges the constitutionality of Nashua’s policy governing the use of its Citizen Flag Pole, alleging that the city engages in unconstitutional viewpoint discrimination in deciding what messages are permissible for citizens to display. The lawsuit seeks to enjoin Nashua city officials from denying flag applications based on viewpoint and from enforcing parts of its flag policy that limit acceptable flags.

Nashua residents have long used the Citizen Flag Pole to fly flags representing various causes and heritages. However, after a 2022 Supreme Court decision protecting speech in such forums, Nashua officials hastily implemented a new policy to take control over the messages expressed.

Under the policy, residents can apply to fly flags on the Citizen Flag Pole in front of City Hall. However, the policy states that any message “will be allowed only if it is in harmony with city policies and messages that the city wishes to express and endorse.”

The Scaers have had multiple flag requests denied, including most recently the Pine Tree Flag to commemorate the Battle of Bunker Hill. The city provided no explanation beyond stating their flags were “not in harmony” with the city’s message.

The lawsuit argues that Nashua’s policy violates the First Amendment by imposing viewpoint-based restrictions on speech, creating an unconstitutional prior restraint, and being impermissibly vague and overbroad.

“Nashua’s flag policy gives city officials unbridled discretion to censor speech they dislike,” said Institute for Free Speech Attorney Nathan Ristuccia. “The First Amendment doesn’t permit the government to turn a longstanding public forum into a personal billboard for city officials’ preferred views. The Supreme Court has warned against exactly this abuse.”

“It’s disturbing that Nashua officials can arbitrarily silence voices they disagree with,” explained Beth Scaer. “The Pine Tree Flag represents an important part of our local history, yet the city wouldn’t allow it to fly because it’s somehow not ‘in harmony’ with their message. But this isn’t about one flag—it’s about protecting everyone’s right to free speech.”

To read the full complaint in the lawsuit, Scaer, et al. v. City of Nashua, et al., click here.

About the Institute for Free Speech

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment.