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Nashua (N.H.) Exclusion of "Save Women's Sports" and "Detransitioner Awareness" Flags from City-Owned "Citizen Flag Pole" Violated First Amendment
Eugene Volokh | 12.23.2025 9:57 AM
From Scaer v. City of Nashua, decided today by First Circuit Judge Sandra Lynch, joined by Judges Gustavo Gelpí and Jeffrey Howard:
On City Hall Plaza, the government property outside of [Nashua] City Hall that is open to the public, there are four flagpoles of varying heights. Until 2017, Nashua exercised exclusive control over the flags flown on the poles, choosing to display only government flags such as the American flag and the New Hampshire state flag. The City continues to exercise such control over three of the flagpoles. In 2017, after the election of Mayor James W. Donchess, who has since been reelected to that position, Nashua created what it called the "Citizen Flag Pole" as to one of the poles. The City's website, under the headings "Citizen Flag Pole" and "Fly a Flag," provided a statement, which in total read:
A pole in front of City Hall is reserved for the citizens of Nashua to fly a flag in support of their cultural heritage, observe an anniversary or honor a special accomplishment. Any group wishing to fly a flag must provide the flag….
Appellants Stephen and Bethany Scaer have resided in Nashua for three decades. Beginning in 2017, Bethany submitted and received approval for several applications to use the Citizen Flag Pole, including for flying the Luther Rose flag in honor of the 500th anniversary of the Protestant Reformation, the Lutheran flag, and a flag commemorating the ratification of the Nineteenth Amendment. For each approved request, Bethany supplied and raised the flag herself and organized a small flag raising ceremony not attended by any City officials.
Nashua initially approved Bethany's application to fly a "Save Women's Sports" flag, which the Scaers raised on October 10, 2020. The Scaers explain that the flag expresses their belief "that women have inalienable rights based on their biological sex that governments have a duty to protect and that allowing biological males to compete against women in sports denies women their rights and the equality due them under both the U.S. Constitution and Title........
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