Email from The Institute for Free Speech Federal appeals court finds city unconstitutionally censored citizens’ requests for use of “Citizen Flag Pole” under guise of “government speech” For Immediate Release: December 22, 2025   Media Contact: Name: Tom Garrett Phone: 202-301-9200 Email: [email protected] First Circuit: Nashua Violated First Amendment by Censoring Citizens’ Flag Requests Federal appeals court finds city unconstitutionally censored citizens’ requests for use of “Citizen Flag Pole” under guise of “government speech” Boston, MA — Can a city invite residents to fly flags on a “Citizen Flag Pole,” then censor the messages it doesn't like by claiming those flags represent government speech? The First Circuit has answered that question with a clear “no.” In a major victory for free speech, a three-judge panel of the U.S. Court of Appeals for the First Circuit unanimously reversed a lower court decision earlier today, holding that the City of Nashua, New Hampshire violated the First Amendment when it engaged in viewpoint discrimination by denying Bethany and Stephen Scaer’s requests to fly flags on the city’s Citizen Flag Pole. Attorneys from the Institute for Free Speech and local counsel Roy S. McCandless represent the Scaers in the litigation. In a decision authored by Judge Sandra Lynch, the First Circuit panel rejected Nashua’s attempt to characterize its censorship as “government speech.” The court found that, between 2017 and 2024, Nashua’s Citizen Flag Pole operated as a forum for private speech, not government expression—making the city’s viewpoint-based denials unconstitutional. “As the First Circuit recognized, governments cannot get away with censorship by labeling that censorship ‘government speech,’” said Institute for Free Speech Attorney Nathan Ristuccia, who argued the case before the First Circuit. “We are delighted that the First Circuit intervened to prevent Nashua from doing exactly that.” The Scaers had multiple flag requests denied by Nashua, most recently a request to fly the historic Pine Tree Flag that commemorates the Battle of Bunker Hill. The city provided no explanation beyond stating that the Scaers’ flags were “not in harmony” with the city’s message. The court’s analysis revealed the fundamental flaw in Nashua's position: From 2017 to 2020, the city approved every single flag application without exercising meaningful control over content. Private citizens supplied their own flags, raised them themselves using a borrowed tool, organized ceremonies typically without any city officials present, and retained ownership of their flags throughout. The city even required applicants to indemnify it for damages—hardly the hallmark of government speech. Only after the Supreme Court's 2022 decision in Shurtleff v. City of Boston protected speech in such forums did Nashua hastily adopt a new policy claiming the flagpole constituted “government speech”—while continuing to invite and accept citizen applications. The First Circuit correctly assessed the purpose of this maneuver. As the court noted, Nashua initially approved Bethany Scaer’s “Save Women’s Sports” flag in 2020, then revoked permission just one day later—not because of any change in government policy or perspective, but, rather, after receiving complaints. The court observed that this sequence resembled “a classic heckler’s veto”—the government silencing speech because others found it offensive. The lawsuit challenged the constitutionality of Nashua's policy, arguing that the city imposed viewpoint-based restrictions on speech, created an unconstitutional prior restraint, and enforced impermissibly vague standards. “Nashua’s flag policy gives city officials unbridled discretion to censor speech they dislike,” Ristuccia explained when the Institute for Free Speech originally filed the suit. “The First Amendment doesn’t permit the government to turn a longstanding public forum into a personal billboard for city officials’ preferred views.” The court’s decision sends an important message about free speech to municipalities throughout the First Circuit, which includes Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico. While Nashua has since closed the Citizen Flag Pole to all private expression—a choice the city remains free to make—today’s ruling prevents cities from creating forums that invite citizen participation, only to discriminate based on viewpoint under a pretense of “government speech.”  The court remanded the case with instructions for the district court to enter declaratory relief in the Scaers’ favor, formally declaring that Nashua’s actions violated the First Amendment. This declaratory judgment should prevent Nashua and cities throughout the First Circuit from adopting or reinstating similar citizen flag poles that discriminate on the basis of viewpoint and violate citizens’ free speech rights. To read the First Circuit’s decision in Scaer, et al. v. City of Nashua, et al., click here. To visit our case page, which includes all filings and other case resources, including client photos, click here. About the Institute for Free Speech  The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. Visit us at www.ifs.org Follow the Institute for Free Speech: The Institute for Free Speech | 1150 Connecticut Ave., NW Suite 801 | Washington, DC 20036 US Unsubscribe | Update Profile | Constant Contact Data Notice