The U.S. Court of Appeals for the First Circuit ruled December 22 that the City of Nashua, New Hampshire violated the First Amendment when it denied two citizens' requests to fly flags on a designated "Citizen Flag Pole" at City Hall Plaza. The three-judge panel reversed a lower court's denial of a preliminary injunction sought by Stephen and Bethany Scaer.
Circuit Judge Lynch, writing for the panel that included Judges Gelpí and Howard, held that the district court erred in concluding that the city had engaged in government speech when it rejected the Scaers' flag display requests. The decision establishes that Nashua's actions constituted impermissible viewpoint discrimination under the First Amendment.
The case centered on whether the city's management of the "Citizen Flag Pole" at City Hall Plaza constituted government speech or created a public forum subject to First Amendment protections. The distinction is crucial because government entities have broad authority to control their own speech but cannot engage in viewpoint discrimination when operating public forums.
The City of Nashua had conceded during the proceedings that if its decision not to allow the citizens' flag requests was not government speech, then it had engaged in impermissible viewpoint discrimination under the First Amendment. This concession proved significant to the court's analysis.
The First Circuit applied the test for defining government speech outlined by the Supreme Court in *Shurtleff v. City of Boston*, 596 U.S. 243 (2022), a recent precedent involving flag displays at government buildings. The *Shurtleff* decision established a framework for determining when government entities are speaking for themselves versus when they have created forums for private expression.
Under the *Shurtleff* analysis, the court examined factors including the historical use of the flagpole, the public's perception of the messages conveyed, and the extent to which the city exercised control over the messages. The First Circuit determined that during the relevant time period, Nashua was not engaged in government speech regarding the Citizen Flag Pole.
The case arose when Stephen and Bethany Scaer sought to display flags on what the city specifically designated as a "Citizen Flag Pole" on City Hall Plaza. The city's rejection of their requests prompted the couple to file suit, arguing that the denial violated their First Amendment rights to free speech and expression.
The plaintiffs initially sought a preliminary injunction in the U.S. District Court for the District of New Hampshire before Judge Landya B. McCafferty. When the district court denied their motion, the Scaers appealed to the First Circuit.
Representing the appellants were attorneys Nathan J. Ristuccia, Roy S. McCandless of Roy S. McCandless, Esq., PLLC, Endel Kolde, and the Institute for Free Speech. The city was represented by Steven A. Bolton and Jonathan A. Barnes from the City of Nashua's Office of Corporation Counsel.
The First Circuit's decision noted that the appellants had conceded at oral argument that interim declaratory relief in their favor would suffice to remedy the constitutional violation. This concession simplified the remedy portion of the case, focusing the court's analysis primarily on the merits of the First Amendment claim.
The ruling adds to a growing body of jurisprudence examining the boundaries between government speech and public forums, particularly in the context of flag displays at government facilities. The *Shurtleff* precedent has been influential in similar cases nationwide, providing courts with clearer guidance on when government entities cross the line from controlling their own message to restricting private speech.
This decision reinforces the principle that when governments create designated spaces for citizen expression, they cannot then pick and choose which messages to allow based on viewpoint. The "Citizen Flag Pole" designation appears to have been particularly significant in the court's analysis, suggesting that the city had opened a forum for private expression rather than reserving the space for government messages.
The case also highlights the importance of the Institute for Free Speech's involvement, demonstrating how advocacy organizations continue to play roles in advancing First Amendment jurisprudence. The organization's participation alongside local counsel suggests the broader implications of the dispute beyond the specific facts in Nashua.
For the City of Nashua, the decision requires reconsideration of its policies governing the Citizen Flag Pole and potentially other public expression opportunities. The ruling establishes that the city cannot maintain a designated citizen forum while simultaneously exercising content-based restrictions that amount to viewpoint discrimination.
The First Circuit's decision comes at a time when courts nationwide are grappling with similar issues involving government property, public forums, and the scope of First Amendment protections. The ruling provides additional clarity for municipalities operating similar programs and reinforces constitutional limits on government authority to restrict private expression in designated public forums.