Nashua Sued in Federal Court for Viewpoint Discrimination

Regular readers will know that the Donchess regime in Nashua is very selective about the flags it allows on the citizen’s pole—almost, dare I say, partisan in its rejection. Most recently, Stephen and Beth Scaer (who both write for GraniteGrok) asked the city to fly the de-trans flag. It was rejected, and an appeal to the mayor was denied.

Jim Donchess said no.

The story didn’t end with the mayor’s rejection. Beth and Stephen Scaer are suing the city in Federal court.

This is a clear case of viewpoint discrimination, one in a series of many such partisan rejections, so I’m excited to see this case take shape.

From the opening of the complaint.

The City of Nashua reserves a “Citizen Flag Pole” in front of city hall for people “to fly a flag in support of cultural heritage, [to] observe an anniversary, honor a special accomplishment, or support a worthy cause.”

Unless city leaders dislike the message. According to the city’s written flag policy, only speech which Nashua “wishes to express and endorse”—speech that is “in harmony with city policies and message” and in “the City’s best interest”—is allowed. Thus, while officials have allowed Nashua residents to fly flags celebrating causes such as Indian Independence Day, Lutheranism, Pride Month, organ donation, and women’s suffrage on the “Citizen Flag Pole,” they have forbidden Bethany Scaer from commemorating the 249th anniversary of the Battle of Bunker Hill by raising the Pine Tree Flag, a traditional patriotic flag flown by New England troops during the American Revolution.

Likewise, officials have denied Beth’s husband, Stephen Scaer, permission to raise a Detransitioner Awareness Flag to observe Detrans Awareness Day (March 12). Stephen1 wishes to support gender detransitioners and call attention to the threats, ridicule, discrimination, and medical expenses that they often suffer, but city officials apparently do not want him to be allowed to express support for detransitioners. Nashua’s flag policy is unconstitutionally vague and overbroad, and it imposes an arbitrary prior restraint on use of the Citizen Flag Pole. The First Amendment does not allow municipalities to turn the government speech doctrine into a cover for favoring some private speakers and censoring others. Such viewpoint discrimination is anathema to the constitution. Plaintiffs Beth and Stephen Scaer are entitled to relief securing their fundamental right of free speech.

As we’ve written repeatedly, Hal Shurtleffs’ 9-0 free speech victory at the US Supreme Court in the Boston City flagpole case made it clear that Nashua would get sued for the same reason sooner or later. Despite that ruling, Mayor Donchess and company responded as they do to any challenge by assuming no one would ever invest the time and treasure to challenge them—and besides, it’s not their money if they lose.

And here we are.

You can follow the case history here and check back on the ‘Grok for updates.