First Circuit “Punches” That Nashole Jim Donhcess in the Face
You will be familiar with the numerous instances of the City of Nashua exercising unconstitutional viewpoint discrimination. A commoner with a basic understanding of free speech could see it. But the City of Nashua is suffering from the “leadership” of a Machiavellian Narcissistic Psychopath (just my opinion) whose arrogance just cost the city a hefty sum in legal fees to defend the indefensible.
It’s their own fault. They keep re-electing him. And he keeps behaving like a Nashole, and the city’s legal team plays along as if they are arrogant pricks like their dear leader or just afraid to give him good advice.
You can’t let just anyone fly a flag on a citizen’s pole and then pretend it’s not that when you don’t like the flag.
Beth and Stephen Scaer, both seasoned contributors to this website, pressed the issue, then finally sued. We thought they might need to go all the way to the US Supreme Court, but the First Circuit did Nashua taxpayers a favor and stopped the bleeding.
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.”
We’d like to congratulate them as the second and third ‘Grok Contributors’ to win major free speech cases, in this case, on the exact same grounds. Hal Shurtleff, who has been gracing our pages with his commentary for several years, won his case at the US Supreme Court (9-0) against the City of Boston over a citizen flag pole that would not raise his flag.
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.
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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.
As predicted, Nashua lost, though, again, I thought we’d be getting this news from SCOTUS, and maybe we will. Nashua is run by (IMO) an arrogant, self-important prick who couldn’t care less how many taxpayer dollars it costs you to get him what he wants.
The lawyers the city is paying to lose will keep cashing checks. They don’t care. So, someone needs to talk Donchess off this ledge before it gets any more expensive. The full Fifth Circuit is not going to go their way, nor would SCOTUS.
Congrats to the Scaers and The Institute for Free Speech.
