Nashua residents Stephen and Bethany Scaer with their Pine Tree flag. The U.S. Court of Appeals for the First Circuit rendered a unanimous decision that the city violated the Scaers' First Amendment rights by not allowing them to fly flags on the Citizen Flag Pole. Courtesy photo/Visuals by Mugsy

NASHUA – A three-judge panel of the U.S. Court of Appeals for the First Circuit recently rendered a unanimous decision that the city violated the First Amendment by not allowing Bethany and Stephen Scaer to fly flags on the Citizen Flag Pole.

Mayor James Donchess and Risk Manager Jennifer Deshaies were also listed as defendants.

In his Complaint, Attorney Roy McCandless, counsel for the Scaers, said there are four flag poles in front of City Hall. In 2017, one of them was designated as the Citizen Flag Pole for the purpose of flying flags “in support of cultural heritage, to observe an anniversary, honor a special accomplishment, or support a worthy cause.”

McCandless said that in October 2020, Bethany Scaer was given permission to fly a Save Women’s Sports flag. Yet, the flag was taken down within 24 hours.

“The city removed this Save Women’s Sports flag the following day, well before the end of its allotted week on the pole,” said McCandless.

He said the removal was in response to complaints from then-Ward 1 Alderwoman Janice Schmidt and others who claimed that the flag was “transphobic.”

“The city bowed to the heckler’s veto and censored Beth’s political speech,” said McCandless.

Scaer appealed to the Mayor’s Office and was told that “the previously granted permission was revoked” and that the flag “was outside of the parameters established for use of the Citizen Flag Pole.”

In May 2022, the city adopted a policy for the Citizen Flag Pole which states: “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 city policies and messages that the city 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, city administration reserves the right to deny permission or remove any flag it considers contrary to the city’s best interest.”

“The policy contains no objective criteria for evaluating what speech is in harmony with the city’s messages or what is in the city’s interest,” said McCandless.

After the policy was adopted, Bethany Scaer again applied to fly the Save Women’s Sports flag only to be met with another denial letter from Deshaies.

“Since issuing the May 2022 flag policy, Nashua has refused to fly several other flags proposed by Nashua residents,” said McCandless. “Including the Palestinian flag, a version of the Save Women’s Sports flag that differed iconographically from Beth’s and the Pro-Life flag.”

On Feb. 7, 2024, Bethany Scaer’s husband, Stephen Scaer, requested to fly the Detransitioner Awareness flag to commemorate Detrans Awareness Day on March 12, 2024.

One week later, Deshaies denied the request stating that the Detransitioner Awareness Flag was “not in harmony with the message that the city wishes to express and endorse.” Stephen Scaer appealed to the Mayor’s Office; however, Donchess upheld Deshaies’ decision.

The matter came to a head when Bethany Scaer applied to fly the Pine Tree flag on June 15, 2024 in memory of the Nashuans who fought and died during the Battle of Bunker Hill 249 years earlier.

Two days after filing the application, Scaer received a denial letter from Deshaies saying: “The flag is not in harmony with the message that the city wishes to express and endorse. Therefore, we must deny your request as the flag poles are not intended to serve as a forum for free expression by the public.”

In response, Bethany Scaer sent an appeal to Donchess stating in part: “Nashua’s brave soldiers fought and died at the Battle of Bunker Hill on June 17, 1775. I applied to raise the Pine Tree flag, which our soldiers carried into battle that day, on the Nashua City Hall Plaza to commemorate this solemn anniversary. My request was rejected because the ‘flag is not in harmony with the message that the city wishes to express or endorse.’ The citizens of Nashua would be quite alarmed and ashamed to know that the city does not endorse the message of commemorating our soldiers fighting and dying at the Battle of Bunker Hill.”

However, Donchess still upheld Deshaies’ decision. In an interview with The Telegraph, he said the Pine Tree flag had come to represent the Jan. 6, 2021 attack on the U.S. Capitol. Donchess also said the city, in no way, condones the events of that day nor does it support the notion that the 2020 presidential election was conducted in a fraudulent manner.

In March 2025, Judge Landya McCafferty of the U.S. District Court for the District of New Hampshire issued an Order upholding Nashua’s position that the city’s decisions were based on government speech.

“The undisputed facts indicate that the flags displayed on the Citizen Flag Pole pursuant to Nashua’s 2022 Flagpole Policy constituted government speech not regulated by the First Amendment,” said McCafferty.

In response, the Scaers took their case to the First Circuit Court.

In reviewing the lawsuit and the lower court’s ruling, Judge Sandra Lynch and her colleagues refused to accept government speech as a reason for censorship.

“We hold that the district court erred in concluding that the city had engaged in government speech,” Lynch said in the court’s Judgement dated Dec. 22, 2025, which reversed the district court’s ruling. The district court has also been ordered to enter declaratory relief in favor of the Scaers.

Lynch and her colleagues found that from 2017 to 2020, every flag application was approved without question. The court also determined that between 2017 and 2024, the Citizen Flag Pole was used as an avenue for private speech rather than government expression.

Regarding the Save Women’s Sports flag that was taken down after 24 hours, the court determined that the city’s decision was entirely based on “a classic heckler’s veto.”

“After years of being told our flags weren’t ‘in harmony’ with the city’s views, it’s vindicating to have the First Circuit confirm that was unconstitutional,” said Bethany Scaer. “No one should have to face government censorship for expressing their beliefs. We’re thrilled with this victory for free speech rights throughout New England.”

Attorney Nathan Ristuccia, a First Amendment fellow at the Institute for Free Speech, agreed that the government speech argument held no merit in the First Circuit courtroom.

“Governments cannot get away with censorship by labeling that censorship government speech,” he said. “We are delighted that the First Circuit intervened to prevent Nashua from doing exactly that.”