The sponsors of a historical marker about the life of Concord native Elizabeth Gurley Flynn said today they will not appeal a judge’s ruling that they do not have legal standing to sue the State for the marker’s removal. But they say that even in the marker’s absence, they have achieved their major goal, educating the public about Flynn’s history-making life.
By Arnie Alpert
Arnie Alpert spent decades as a community organizer/educator in NH movements for social justice and peace. Officially retired since 2020, he keeps his hands (and feet) in the activist world while writing about past and present social movements. He writes the “Active with the Activists” column for InDepthNH.org.
“Elizabeth Gurley Flynn is a well-known historic figure who contributed greatly to struggles for workers’ rights, women’s equality, and civil liberties, generating considerable controversy along the way. Her life and historic significance are well documented by her biographers, in her own memoirs, and with references in many books about the period in which she lived. She even has a major role in a recent historic novel.”
That was the beginning of a letter I sent on July 8, 2021, to the NH Division of Historical Resources (DHR). “Less well known,” the letter continued, “is that she was born in Concord, not far from the State House.”
The letter proposed that the DHR, an agency within the New Hampshire Department of Natural and Cultural Resources (DNCR), put up one of its Historical Highway Markers – made of green metal with white lettering — near Flynn’s birthplace on Montgomery Street. Along with the letter, and in compliance with the public rules and statutes governing the marker program, Mary Lee Sargent and I collected 40 petition signatures supporting the proposal.
Also in the packet, we submitted draft language for what the marker would say, with footnotes to document all the facts, again in compliance with the program’s strict and specific standards, e.g. “a title line and up to 12 lines of text, at a maximum of 14 lines with no more than 45 spaces per line.”
It’s not a lot of space to capture the story of a person whose life was significant enough to merit historical recognition, but with the DHR staff we agreed on the following wording for the marker.
“Born in Concord in 1890, Elizabeth Gurley Flynn was a nationally known labor leader, civil libertarian and feminist organizer. She joined the Industrial Workers of the World at age 17 where her fiery speeches earned her the nickname ‘The Rebel Girl.’ As a founder of the American Civil Liberties Union, Flynn advocated for women’s rights, including supporting their right to vote and access to birth control. She joined the Communist Party in 1936 and was sent to prison in 1951 under the notorious Smith Act.”
At the top, the marker would say, “Elizabeth Gurley Flynn: The Rebel Girl.”
Working in conjunction with the NH Department of Transportation, which shares responsibility for the marker program, the DHR placed an order for the marker honoring “the Rebel Girl.” After COVID-related production delays, the marker arrived in New Hampshire in early September 2022. With DHR staff, Mary Lee and I began making plans for its official unveiling and dedication the following spring.
A lot more could be, and has been, said about Flynn, who was born into an Irish immigrant family on August 7, 1890. The family shortly left Concord for Manchester, then Ohio and Massachusetts before settling in the Bronx. At the age of 15, Flynn delivered her first public speech, to the Harlem Socialist Club, on “What Socialism will do for Women.” Her first arrest came several months later when police broke up a street rally where she was speaking beneath a red banner.
Soon, she joined the Industrial Workers of the World (the IWW, also known as “The Wobblies”) a radical labor union which sought to organize workers without regard to race, sex, or national origin. As an IWW organizer, Flynn crisscrossed the country lifting the spirits of striking workers, raising funds for their defense, and helping to organize textile, mining, timber, and other workers to win better pay and working conditions.
A staunch advocate of women’s equality, Flynn also became a fierce defender of civil liberties during the “Red Scare” which followed World War One and the Russian Revolution. Her prominence as a defender of jailed unionists and advocate for free speech positioned her among the founders of the American Civil Liberties Union and later as a member of their board.
At the age of 46, after decades of protest and action, Flynn joined the Communist Party while the group was campaigning against fascism and promoting a “popular front” in support of President Franklin Roosevelt’s New Deal. She soon rose to prominence within the party and during the second Red Scare was indicted under the Smith Act, tried, convicted, and in 1955 sent to prison.
Flynn wrote two memoirs, The Rebel Girl, which chronicled her upbringing and life in the IWW, and My Life as a Political Prisoner, about her incarceration at Alderson Prison. She gave hundreds, perhaps thousands of speeches and was an equally prolific writer, penning several articles a week in the Communist press for years on end. Hoping to find time to write and relax, she traveled in 1964 to Moscow, where she died of a sudden illness before making any progress on her next memoir. The Soviet government gave her a funeral in Red Square before shipping her remains to Chicago, where she was buried alongside other notable radicals. The New York Times published an extensive front-page obituary.
In later years, Flynn was featured in two full-length biographies, Iron in Her Soul, by Helen Camp, and Elizabeth Gurley Flynn: Modern American Revolutionary by Lara Vapnek. Another scholar, Rosalyn Fraad Baxandall, scoured Flynn’s papers at NYU’s Tamiment Library and produced Words on Fire: the Life and Writing of Elizabeth Gurley Flynn, with a 70-page biographical essay and annotated reprints of dozens of Flynn speeches, articles, and poems. Flynn can also be found somewhere in dozens of books about 20th century American labor history, the American Left, and the mid-twentieth century Red Scare. Joe Hill’s song, “The Rebel Girl,” which he said was inspired by Flynn, has been recorded by artists including John McCutcheon, Magpie, Joe Glazer, and Hazel Dickens. There’s even a “Ballad of Elizabeth Gurley Flynn,” recorded by Tom Neilson.
In short, Flynn’s life had an impact on her times and beyond. Although nearly anonymous in her hometown, her place in history was already secure when Mary Lee and I led the dedication ceremony for New Hampshire’s 178th Historical Highway Marker on May 1, 2023, at the corner of Court and Montgomery Streets, around the corner from the former site of an apartment house where Flynn was born.
With irony that would be revealed later, the site was adjacent to a lot where judges working at the Superior Court parked their cars each day.
The path the marker took after its installation is a bit tortuous and like Flynn’s life has been well documented. It was Flynn’s communist affiliation which attracted the ire first of Executive Councilor Joe Kenney, who two days after the marker’s dedication made much of the fact that Flynn had been honored with a Red Square funeral. Terming the marker, “Anti-American,” Governor Chris Sununu agreed with Kenney, later commenting, “An avowed Communist who benefited from a state funeral in Moscow’s Red Square should not be celebrated in New Hampshire.” How Flynn benefited from her own funeral was never made clear, but in any case, two weeks after the marker’s dedication, the governor had it taken away by the Department of Transportation.
While the marker’s installation and Councilor Kenney’s dissent received a bit of attention in local news, it was its removal that promoted an explosion of interest. The controversy was covered by the local mainstream media, notably the Concord Monitor, which over the ensuing months put more than a dozen articles about the Flynn marker on its front page. Other consistent coverage came from NHPR and the NH Union Leader, but also the right-wing NH Journal, which tried to hang all of Joseph Stalin’s crimes around the neck of Ms. Flynn. The NY Times and Washington Post joined in, and AP stories on the Flynn marker were published as far away as Taiwan. Photos of the marker, sometimes with Mary Lee and me, were featured in many of the articles.
Locally, marker supporters printed replicas and put them up in their yards. Handmade road signs with slogans like, “You can’t cancel the Rebel Girl” and “Learn Free or Die” appeared at the corner of Court and Montgomery. Mary Lee ordered Flynn marker t-shirts (union-made, of course) and sold several dozen. Letters to the editor, almost all pro-marker, proliferated. For about 8 weeks, Flynn marker supporters held Saturday “sit outs” at the corner from where the marker had been removed, each week chatting with neighbors, pedestrians, and people driving by.
It was not only the marker and its removal that garnered attention; so, too, did Elizabeth Gurley Flynn herself. I was invited to give a lecture about her to the local historical society. Flynn’s biographer, Lara Vapnek, was interviewed by NHPR and presented a webinar for the NH Humanities Council (which sadly, did not record it). The owner of a local independent bookstore told me he sold “a ton” of copies of The Cold Millions, a historical novel about the IWW free speech fights in which Flynn appears as a major character. Joe Hill’s song, “The Rebel Girl,” received airplay on NHPR’s weekly folk music show.
In addition to the political objections to right-wing cancel culture, the marker’s removal appeared to us to be illegitimate and probably illegal. So, Mary Lee and I went to court, with representation from Andru Volinsky, a former Executive Council member. The lawsuit generated yet more attention.
Our complaint was based on two aspects of the rules governing the marker program. For starters, the DHR changed rules for the marker program twice between the time the Flynn marker was approved and when it was removed. The first change, which the DHR posted publicly on January 30, 2023, took a relatively simple process for proposing a marker and added details: a statement of the program’s purpose, criteria for approval of proposed markers, and a policy under which markers could be revised or “retired” with approval of a separate agency, the State Historical Resources Council (SHRC). Nothing in the new rules conflicted with the installation or dedication of the Flynn marker.
After the Flynn marker controversy erupted on May 3, DHR and DNCR officials scrambled to revise the rules once more under pressure and direction from the governor’s office. On May 12, DHR posted a new version, keeping most of the January 30 rules intact but in several places making it explicit that final decisions about markers, including their removal, could be made by the department’s commissioner, a political appointee. It was that authority, they claimed 3 days later, under which the commissioner ordered the Flynn marker taken down.
There was at least one problem: even after the May 12 revision, the marker rules still stated that any proposal to revise or retire an existing marker had to be reviewed by the SHRC, a panel of experts on history, architecture, archaeology, and other specialized fields. No such review had taken place.
The other problem with the rules—all of the versions–was that they had never been formally adopted and therefore, we argued, served only as informal guidelines for the program. Instead, the only legally binding authority for the marker program was to be found in state law. And nowhere in the several statutes creating and governing the program was there any reference to the commissioner having authority to remove approved markers based on ideological grounds. To the contrary, DHR’s own description of the program says, “New Hampshire’s historical highway markers illustrate the depth and complexity of the state’s history and the people who made it.”
But we had a problem, too. Shortly after we filed our lawsuit (on Flynn’s 123rd birthday), the Attorney General’s office filed a motion to toss it out on the grounds that neither Mary Lee nor I had a legal right to sue. From the State’s perspective, the marker had been ordered by the State, paid for by the State, installed by the State on State-owned property, and removed by State workers. Although Mary Lee and I were treated by the DHR as its “sponsors,” it wasn’t our marker. We experienced no legal harm from its removal, they contended, and despite our role had no more standing than any other member of the public who might be upset by an executive branch decision. It was within the commissioner’s discretion, they claimed, for the marker to be removed.
When months later oral agreements in the case took place in a Merrimack County Superior Courtroom, across the parking lot from where the Flynn marker once stood, Andy Volinsky argued forcefully for our position. Since DNCR never established formal rules for the marker program and there is no statute governing removal, the government’s action was illegal and can’t be allowed to stand. “We’re a rule-of-law country and for the government to violate its own laws is wrong,” he told the judge.
Moreover, it was actually the governor, not the commissioner, who ordered the marker to be removed, he pointed out, submitting the text of DHR internal messages as evidence. The fact that we had followed the rules for proposing markers, expending considerable time on research, gathering petition signatures, and organizing the dedication ceremony gave us standing distinct from other taxpayers or citizens.
Inside the courtroom, it appeared that the judge had gotten the point. If the governor had the authority to order our marker removed, the judge asked the assistant A.G. who was arguing the State’s case, could he just wake up one morning and order state workers to remove all of them? Is there any check on the governor’s authority? The State’s representative hemmed and hawed a bit, but responded that yes, the governor could just order the Department of Transportation to take down all of the historical markers if he felt like it.
It took the judge another two months to issue his ruling, in which he agreed with the State that we had no standing to sue. Having agreed that our goal of educating the public about Elizabeth Gurley Flynn’s historic significance has been reached many times over, Mary Lee and I decided to forego an appeal to the NH Supreme Court. That means controversy of the Flynn marker has reached a resting point.
Or has it?
Remember the rules of the marker program, which established the conditions under which markers can be retired? The rules also allow for retired markers to be adopted by museums, municipalities, educational institutions, or other entities which can safely store them in an indoor facility. Adopted markers can be displayed outdoors on a temporary basis, according to the policy.
“While on display (either indoors or outdoors),” the policy reads, “the marker display must be accompanied by interpretive text that explains why the sign was retired from the New Hampshire Historical Highway Marker program. NHDHR must approve the interpretive text.”
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