The Pine Tree flag has created quite an uproar as Nashua residents Stephen and Bethany Scaer are suing the city claiming that their civil rights have been violated. Courtesy photo

NASHUA – Stephen and Bethany Scaer of Nashua recently filed a lawsuit against the city, Mayor James Donchess and Risk Manager Jennifer Deshaies claiming that their civil rights, under the First and 14th Amendments, have been violated.

In his Complaint, Attorney Roy McCandless, counsel for the Scaers, said there are four flag poles in front of City Hall. Since 2017, one of them has been designated as the Citizen Flag Pole for the purpose of flying flags “in support of cultural heritage, to observe an anniversary, honor a special accomplishment, or support a worthy cause.”

McCandless said that in prior years, the city allowed flags representing Indian Independence Day, Lutheranism, Pride Month, organ donation and the ratification of the 19th Amendment, which gave women the right to vote.

In May 2022, the city adopted a policy for the Citizen Flag Pole which states: “A flag pole in front of City Hall may be provided for use by persons to fly a flag in support of cultural heritage, observe an anniversary, honor a special accomplishment, or support a worthy cause. Any group wishing to fly a flag must provide the flag. This potential use of a city flag pole is not intended to serve as a forum for free expression by the public. Any message sought to be permitted will be allowed only if it is in harmony with city policies and messages that the city wishes to express and endorse. This policy recognizes that a flag flown in front of City Hall will be deemed by many as city support for the sentiment thereby expressed, city administration reserves the right to deny permission or remove any flag it considers contrary to the city’s best interest.”

“The policy, however, contains no objective criteria for evaluating what speech is in harmony with the city’s messages or what is in the city’s interest,” said McCandless.

Since the policy was adopted, 10 flags have been raised on the Citizen Flag Pole, each one flying for about one week.

McCandless said that in 2020, Bethany Scaer received permission to fly a Save Women’s Sports flag in October. However, the flag was taken down within 24 hours.

“The city removed this Save Women’s Sports flag the following day, well before the end of its allotted week on the pole,” said after McCandless.

He said the removal was in response to complaints from then-Ward 1 Alderwoman Janice Schmidt and others who claimed that the flag was “transphobic.”

“The city bowed to the heckler’s veto and censored Beth’s political speech,” he said.

Scaer appealed to the Mayor’s Office and was told that “the previously granted permission was revoked” and that the flag “was outside of the parameters established for use of the Citizen Flag Pole.”

In May 2022, Scaer again applied to fly the Save Women’s Sports flag only to be met with another denial letter from Deshaies.

“Since issuing the May 2022 flag policy, Nashua has refused to fly several other flags proposed by Nashua residents,” said McCandless. “Including the Palestinian flag, a version of the Save Women’s Sports flag that differed iconographically from Beth’s and the Pro-Life flag.”

On Feb. 7 of this year, Scaer’s husband Stephen requested to fly the Detransitioner Awareness flag to commemorate Detrans Awareness Day on March 12.

“The flag celebrates the bravery that gender detransitioners demonstrate, by enduring threats, ridicule, discrimination and often painful and expensive medical care in order to live according to their biological sex,” said McCandless.

One week later, Deshaies denied Stephen’s request stating that the Detransitioner Awareness Flag was “not in harmony with the message that the city wishes to express and endorse.” Stephen appealed to the Mayor’s Office; however, Donchess upheld Deshaies’ decision.

The situation came to a head when Scaer applied to fly the Pine Tree flag on June 15 to remember the Nashuans who fought and died during the Battle of Bunker Hill 249 years earlier.

Two days after filing the application, Scaer received a denial letter from Deshaies saying: “The flag is not in harmony with the message that the city wishes to express and endorse. Therefore, we must deny your request as the flag poles are not intended to serve as a forum for free expression by the public.”

“This explanation is an almost direct quote of Nashua’s written flag policy,” said McCandless.

In response, Scaer sent an appeal to Donchess stating in part: “Nashua’s brave soldiers fought and died at the Battle of Bunker Hill on June 17, 1775. I applied to raise the Pine Tree flag, which our soldiers carried into battle that day, on the Nashua City Hall Plaza to commemorate this solemn anniversary. My request was rejected because the ‘flag is not in harmony with the message that the city wishes to express or endorse.’ The citizens of Nashua would be quite alarmed and ashamed to know that the city does not endorse the message of commemorating our soldiers fighting and dying at the Battle of Bunker Hill.”

However, Donchess still upheld Deshaies’ decision.

“The plaintiffs find it frustrating and degrading to have their flag requests denied by the city, especially as other residents are allowed to promote viewpoints through flags,” said McCandless, adding that specific explanations were never given in the denial letters.

Therefore, McCandless maintained that his clients have suffered damages under U.S. Code Title 42, Sec. 1983.

“By these actions, the defendants, under color of law, deprived and continue to deprive the plaintiffs of their right to free speech in violation of the First and 14th Amendments to the United States Constitution,” he said.

McCandless also said his clients are entitled to “permanent injunctive relief against continued enforcement and maintenance of the defendants’ unconstitutional customs, policies and practices.”

In response, Donchess said that in addition to its original purpose, the Pine Tree flag has come to represent the Jan. 6, 2021 attack on the U.S. Capitol. He said the city, in no way, condones the events of that day nor does it support the notion that the 2020 presidential election was conducted in a fraudulent manner.

Corporation Counsel Steven Bolton said although there are four flag poles in front of City Hall, “not one of them is called the Citizen Flag Pole.”

He also maintained that the city, Donchess and Deshaies have done nothing that violates the Scaers’ civil rights.