Episode 41: Scaer, et al. v. City of Nashua, et al.
Scaer, et al. v. City of Nashua, et al. argued before the U.S. Court of Appeals for the First Circuit on December 2, 2025. Argued by Institute for Free Speech Attorney Nathan Ristuccia (on behalf of Stephen and Bethany Scaer) and Steven A. Bolton (on behalf of the City of Nashua, NH).
Case Background, from the Institute for Free Speech case page:
Should a city be able to pick and choose whose messages are “worthy” to appear on its public “Citizen Flag Pole?” The City of Nashua thinks so—but a federal lawsuit aims to change that.
Attorneys from the Institute for Free Speech and local counsel Roy S. McCandless filed the lawsuit in the U.S. District Court for the District of New Hampshire on behalf of Bethany and Stephen Scaer (pronounced “scare”), two Nashua residents whose flag requests have been denied. The suit challenges the constitutionality of Nashua’s policy governing the use of its Citizen Flag Pole. The lawsuit seeks to enjoin Nashua city officials from denying flag applications based on viewpoint and from enforcing parts of its flag policy that limit acceptable flags.
Nashua residents have long used the Citizen Flag Pole to fly flags representing various causes and heritages. However, after a 2022 Supreme Court decision protecting speech in such forums, Nashua officials hastily implemented a new policy to take control over the messages expressed.
Under the policy, residents can apply to fly flags on the Citizen Flag Pole in front of City Hall. However, the policy states that any message “will be allowed only if it is in harmony with city policies and messages that the city wishes to express and endorse.”
The Scaers have had multiple flag requests denied, including most recently the Pine Tree Flag to commemorate the Battle of Bunker Hill. The city provided no explanation beyond stating their flags were “not in harmony” with the city’s message. The lawsuit argues that Nashua’s policy violates the First Amendment by imposing viewpoint-based restrictions on speech, creating an unconstitutional prior restraint, and being impermissibly vague and overbroad.
Statement of the Issues, from the Plaintiffs-Appellants Opening Brief:
- Whether governments may avoid First Amendment limits in regulating speech by adopting it as government speech, without acquiring any property interest or permanent possessory interest over that private speech?
- Whether a government speaks or merely regulates private speech when it uses its final approval authority to permit or to prohibit the display of certain messages on government property, without shaping or altering the content of those messages?
- Whether Plaintiffs are likely to succeed in their claim that the City of Nashua’s policies and practices regarding flags displayed on its Citizen Flag Pole and flag-raising ceremonies conducted on its City Hall Plaza constitute viewpoint discrimination, or are vague, overbroad, or effect a prior restraint on speech?
- Whether Plaintiffs are entitled to a preliminary injunction against those policies and practices?
Resources:
- Institute for Free Speech case page (includes all filings)
- Plaintiffs-Appellants Stephen and Bethany Scaer’s Opening Brief
- Brief For Defendants-Appellee, City Of Nashua, New Hampshire
Listen to the argument here:
The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform.
