One of their two rejected flags says “Save Women’s Sports” and promotes awareness of people who no longer identify as transgender. The other, which features a pine tree and the slogan “An Appeal to Heaven,” has historic roots in the American Revolution but recently has been co-opted by Christian nationalists.
Nashua’s risk manager, Jennifer L. Deshaies, rejected the applications, saying the flags were “not in harmony with the message that the City wishes to express and endorse.” The Scaers appealed to Mayor James W. Donchess, but he upheld the rejections.
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Earlier this month the Scaers sued the city in federal court, with backing from the Institute for Free Speech. One of their attorneys, Nathan Ristuccia, said Nashua’s policy had inappropriately given city officials “unbridled discretion to censor speech they dislike.”
The case is similar to one Boston lost in 2022, when the US Supreme Court ruled unanimously that the city had unconstitutionally rejected an application to fly a Christian flag. The facts here are a bit different, however, especially since Nashua crafted a policy in response to that precedent to state clearly that the flagpole isn’t a public forum.
“We read the case, and we did what the Supreme Court said to do,” said Steven A. Bolton, an attorney for Nashua.
People carried an “Appeal To Heaven” flag as they gathered at Independence Mall to support President Donald Trump during a visit to the National Constitution Center for an ABC News town hall on Sept. 15, 2020, in Philadelphia.Michael Perez/Associated Press
Two legal experts who have written about the Boston case said Nashua seems to have a stronger argument than the plaintiffs do in this new lawsuit, but both noted the outcome remains uncertain.
“I actually think this is sort of like a deliciously complicated case that is not a slam dunk for either side,” said Mark R. Satta, an associate professor of law and philosophy at Wayne State University in Detroit.
The crux of the legal question is whether the flags constitute speech by the public or by the government. On one hand, if the flagpole is a limited public forum, then “the Scaers have a really good case” because the city is arguably engaged in viewpoint discrimination, Satta said. On the other, if the flagpole is for the city to express its own perspective, then viewpoint discrimination is perfectly acceptable, he said.
“The government doesn’t have to accept everyone’s message when the government is speaking for itself,” he said.
Austin P. Anderson, a Boston-based litigation attorney with Anderson & Kreiger, said the First Amendment doesn’t prohibit governments from choosing which messages to endorse.
“Democratically elected governments are supposed to express support for some policies and not support for other policies, and the Supreme Court has said that your remedy for that is the ballot box,” Anderson said. “If you don’t like the message that your elected officials are choosing to send, vote them out.”
Nashua updated its policy in 2022 to specify that the flagpole is not “a forum for free expression by the public.” The policy says people can apply to have their flag featured, but only those conveying messages the city “wishes to express and endorse” will be approved.
“The government doesn’t have to accept everyone’s message when the government is speaking for itself.”
Anderson said Nashua’s policy addressed the major issues the Supreme Court had with Boston, but the court will still need to assess whether officials actually exercised enough editorial discretion to support the claim that these flags are government speech.
In their lawsuit, the Scaers acknowledge officials approved some of their flag-raising applications since the program began in 2017. They were permitted to raise flags celebrating Lutheranism, ratification of the 19th Amendment, and Christianity’s Holy Week.
Other groups have gotten approval to fly flags for special occasions, such as LGBTQ+ Pride Month and the independence days of other countries.
At the same time, Nashua has declined to fly several flags since the 2022 policy update, including a “pro-life” flag and a Palestinian flag, according to the Scaers’ lawsuit.
“That’s going to be a very key aspect of this dispute,” Anderson said. “The court is going to want to know exactly how much control the city is exercising.”
But Ristuccia, the plaintiffs’ attorney, said city officials can’t commandeer this flagpole.
“The First Amendment doesn’t permit the government to turn a longstanding public forum into a personal billboard for city officials’ preferred views,” he said in a statement.
Satta and Anderson said the lawsuit might offer an opportunity for the courts to provide more clarity.
Before the lawsuit was filed, Donchess, Nashua’s mayor, said the city declined to fly the “Save Women’s Sports” flag because officials interpreted it as implying transgender people should face discrimination.
The Scaers, who regularly demonstrate against gender-affirming medical interventions for minors and the inclusion of transgender athletes in women’s and girls’ sports, rejected the notion that their messaging is transphobic.
Stephen Scaer, the Republican nominee for New Hampshire Senate District 13, who has described himself as a “gender atheist,” said the “Save Women’s Sports” flag — which features the words “De-Trans Awareness” on the reverse — seeks to amplify voices of those who have desisted after identifying as transgender.
Stephen Scaer of Nashua spoke to the Kearsarge Regional School District board in New London, N.H., on Thursday, Aug. 29, 2024, about his views on barring transgender girls from girls’ school sports.Steven Porter/Globe Staff
As for the “Appeal to Heaven” flag, also known as the Pine Tree Flag, Donchess said the city has no interest in signaling even the slightest endorsement of the additional meaning it has taken on in recent years.
The banner emerged during the American Revolution, with a nod to the Pine Tree Riot in New Hampshire, an act of American resistance that preceded the Boston Tea Party. The phrase “Appeal to Heaven” came from philosopher John Locke.
More recently, the flag has been used by Christian nationalists, including some who carried it to the US Capitol on Jan. 6, 2021, when a violent mob delayed the certification of Donald J. Trump’s electoral defeat.
An “Appeal to Heaven” flag was seen as people gathered at Independence Mall to support President Donald Trump on Sept. 15, 2020, in Philadelphia.Michael Perez/Associated Press
In her application to raise the “Appeal to Heaven” flag, Beth Scaer said she wanted to honor the soldiers from Nashua who fought and died at the Battle of Bunker Hill in 1775. Her application was filed five days after The New York Times reported the flag had been spotted flying outside US Supreme Court Justice Samuel Alito’s beach house.
Nashua’s decision to reject the application drew a protest rally in Juneorganized by the Libertarian Party of New Hampshire. The party, which often makes incendiary comments on its official X account, posted Deshaies’s name and photograph and called on supporters to “spit on” people like her to drive them from New Hampshire.
“This shows exactly why we’re not flying the flag,” Donchess said, “because the people who want this are the people who threaten violence.”
Beth Scaer called threats of violence “despicable” andsaid the flag “represents an important part of our local history,” and Stephen Scaer said their request has nothing to do with the Capitol riot.
“I’ve never espoused any sort of an insurrection,” he said. “I just wanted to remember an important event.”
Steven Porter can be reached at steven.porter@globe.com. Follow him @reporterporter.
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Publish date : 2024-09-21 14:02:00
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