By DAMIEN FISHER, InDepthNH.org
Nashua resident Beth Scaer says the city violated her First Amendment rights when it denied her permission to fly a Pine Tree Flag at City Hall.
Beth Scaer is now represented by the Institute for Free Speech in a federal lawsuit filed in the United States District Court in Concord. The lawsuit alleges Nashua’s policy on its public-use flagpole is vague and gives officials the ability to censor speech.
“It’s disturbing that Nashua officials can arbitrarily silence voices they disagree with,” Scaer said. “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.”
The Pine Tree Flag depicts a green pine tree on a white background with the words “Appeal to Heaven.” The flag was a popular patriot symbol during the American Revolution. Scaer wanted to fly the flag at Nashua’s City Hall to honor Nashua soldiers who fought in the Battle of Bunker Hill.
But the city denied her permit application to use the flagpole designated for members of the public, stating the flag is “not in harmony with the message that the City wishes to express and endorse.”
Institute for Free Speech Attorney Nathan Ristuccia said the city’s flag policy allows officials unchecked power to censor citizens.
“Nashua’s flag policy gives city officials unbridled discretion to censor speech they dislike,” said 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.”
The 1772 Pine Tree Riot in Weare saw colonists form a violent mob to run a sheriff and his deputy out of town after the officials arrested the owner of a sawmill. The miller had been taking in large pine trees, a violation of the British law that designated all large pine trees as property of George III. The trees were used to make masts for the Royal Navy.
The flag’s connection to a more recent violent mob is perhaps behind the denial. The Pine Tree flag was carried by a relatively few people taking part in the Jan. 6 attack on the U.S. Capitol. Jan. 6 rioters carried a variety of symbols, both patriotic and ridiculous.
Nashua allows residents to use a flagpole at City Hall to fly various flags celebrating religious and ethnic heritage, sexual identity, and other points of pride for people in Nashua.
Past City Hall displays include flags for Pride Month, Indian Independence Day, Brazilian Independence Day, Greek Independence Day, International Francophonie Day, and the anniversary of the foundation of Nashua’s Lions Club, according to court records.
Scaer herself used the flagpole to fly flags celebrating Martin Luther, Women’s Suffrage, and Christianity. But the ability to fly flags has always come with limits. In 2020 the city took down Scaer’s flag with the message “Save Women’s Sports” after City Councilor Jan Schmidt complained, according to the lawsuit.
Nashua did not have a formal policy until 2022, however. That was the year the United States Supreme Court ruled the City of Boston violated the rights of a group that wanted to display a pro-Christian flag.
Nashua’s new policy states, “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 city policies and messages that the city wishes to express and endorse.”
Scaer wants to fly the Pine Tree Flag this summer to mark the Bunker Hill anniversary and hopes the courts will side with her in the lawsuit.
Boston ended up paying out $2.1 million in its flag flap to Mat Staver, founder and chairman of the nonprofit, pro-faith legal group Liberty Counsel.
