Lawyer calls Nashua mayor's repeal of flag policy an attempt to 'avoid judicial scrutiny'
Oct. 18—A lawyer representing a Nashua couple suing the city over their stymied efforts to display right-wing flags outside City Hall says the mayor's changes to rules for what flags can fly is a "transparent attempt to avoid judicial scrutiny," a court filing says.
Nashua Mayor Jim Donchess repealed the city's policy regarding what flags can fly on poles at City Hall Plaza after the Gate City was sued by Beth and Stephen Scaer.
The couple claims their free speech rights were violated after they applied to fly two different anti-transgender flags, a pro-life flag and a Pine Tree flag — the latter of which has been adopted by the Christian Nationalist movement and insurrectionists. The Scaers claimed the Pine Tree flag commemorated Nashua residents who fought at the Battle of Bunker Hill.
The Scaers filed the lawsuit last month in U.S. District Court in Concord. No date has been set.
Though city officials have said publicly they haven't violated the Scaers' First Amendment rights — Steven Bolton, city corporation counsel for Nashua, told a Union Leader reporter, "We're 100% in compliance with the law," calling the lawsuit "silly" — Donchess repealed the city's 2022 policy related to the flagpoles outside City Hall in a memorandum of law filed in U.S. District Court.
"On October 7, 2024, during the pendency of this action, Mayor Donchess repealed the 2022 Flagpole Policy and any other previous policies related to the flagpoles outside City Hall," court paperwork states. In place of these policies, Mayor Donchess signed a new City Hall Flagpole Policy stating that "The flagpoles on city hall grounds shall henceforth be exclusively controlled by city government. The city shall determine what flags will be flown and during what time periods and does not seek input from other sources. The flagpoles are not public fora open to others for expression but are solely for city government to convey messages it chooses."
In a court filing dated Oct. 16, the Scaers' attorney, Nathan Ristuccia with the Institute for Free Speech, argues the repeal shows the defendants "tacitly recognizing" their old policy was unconstitutional.
"This abrupt change is a transparent attempt to avoid judicial scrutiny, but it cannot moot the Scaers' claim for injunctive relief," Ristuccia writes. "A defendant seeking to escape judgment based on his voluntary cessation 'bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.' Here, defendants repealed their 2022 policy to avoid flying flags they dislike."
Ristuccia argues Mayor Donchess "evidently repealed the 2022 policy on his own authority as mayor, without needing approval from the Board of Aldermen."
"If this court does not grant relief, defendant Donchess could restore the old policy just as easily as he repealed it," Ristuccia writes in the filing. "Indeed, a spokesman for Nashua has publicly 'denied that the mayor had made any change to the city's flagpole policy' and stated that Donchess was 'merely clarifying the existing policy.'
"If the city itself admits that it has not changed its 2022 policy, which is still 'existing,' then plaintiffs' request for preliminary relief cannot be moot."
The Scaers' lawsuit 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 stop 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 used the Citizen Flag Pole to fly flags representing various causes and heritages, the lawsuit claims. But 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, the suit claims.
An attorney for the defendants argues that since issuing the May 2022 flag policy, Nashua has refused to fly several other flags proposed by Nashua residents, including "the Palestinian flag, a version of the Save Women's Sports flag that differed iconographically from Beth's, and the Pro-Life flag."
The Scaers had multiple flag requests denied, including most recently the Pine Tree flag commemorating 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 claims.
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.
