Married Couple Sue New Hampshire City for Denying Request to Fly ‘Appeal to Heaven’ Flag outside City Hall

Two residents of Nashua, N.H., are suing the city for forbidding them from flying the colonial-era “Appeal to Heaven” flag, which government officials deemed to be “not in harmony” with the city’s message, presumably because of its association with the January 6 riot.

Bethany and Stephen Scaer claimed their First Amendment rights were violated after Nashua rejected Bethany’s request to raise the Appeal to Heaven flag on City Hall’s public-use “Citizen Flag Pole” in commemoration of the 249th anniversary of the Battle of Bunker Hill. The husband-and-wife duo alleged that the city’s flag policy is discriminatory and unconstitutional for arbitrarily preventing constituents from exercising free speech.

“Nashua’s flag policy is unconstitutionally vague and overbroad, and it imposes an arbitrary prior restraint on use of the Citizen Flag Pole,” the complaint states. “The First Amendment does not allow municipalities to turn the government speech doctrine into a cover for favoring some private speakers and censoring others. Such viewpoint discrimination is anathema to the constitution.”

The federal lawsuit was filed in New Hampshire on Friday and announced on Monday by the Institute for Free Speech, the group representing the Scaers in the case.

The flag in question features a green pine tree on a white background with the motto: “An Appeal to Heaven.” It was seen as a popular patriotic symbol in New England during the early years of the American Revolutionary War. It was also carried by some people taking part in the January 6 riot at the Capitol.

In May, Bethany Scaer requested to fly the Appeal to Heaven flag on June 15 to honor all Nashua soldiers who fought at the Battle of Bunker Hill on June 17, 1775. However, her permit application was denied without adequate explanation.

Nashua justified its decision by merely 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.” The denial response is nearly identical to the city’s written flag policy, the lawsuit notes.

The plaintiff’s request was submitted around the same time as the New York Times report that the Appeal to Heaven flag was spotted outside Supreme Court justice Samuel Alito’s beach house in New Jersey during summer 2023. Additionally, in January 2021, an upside-down American flag was flown outside Alito’s home in Alexandria, Va. Alito said that his wife raised both flags without his input.

Democrats used both incidents to bolster their arguments that Alito should have recused himself from the Supreme Court cases involving former president Donald Trump and January 6. In a letter dated May 29, the conservative-leaning justice refused to recuse himself and sternly told them to get lost.

The plaintiff’s request to raise the Appeal to Heaven flag in a public space was denied because the New Hampshire city did not want to display a symbol associated with January 6, a Nashua spokesman told National Review.

“They’re free to fly their flags at their own home, at other places with appropriate permission, but the city is not willing to adopt their message,” said city corporation counsel Steven Bolton. “That’s not in the city’s policy to deny the results of free and fair elections, to side with those who would attempt to overthrow the government of the United States, who barged into the Capitol that killed people.”

The Times reported that the flag was co-opted by the “Stop the Steal” movement, whose supporters believe the 2020 presidential election was stolen from Trump.

Bolton added that Nashua is “quite confident that the lawsuit has no merit” and will defend its case in court. He also noted that the Citizen Flag Pole is just a city flag pole. Nashua’s website previously labeled it the Citizen Flag Pole but has since said it’s a “flag pole in front of City Hall,” according to the complaint.

“It’s disturbing that Nashua officials can arbitrarily silence voices they disagree with,” Bethany Scaer said. “The Pine Tree Flag represents an important part of our local history, yet the city wouldn’t allow it to fly because it’s somehow not ‘in harmony’ with their message. But this isn’t about one flag — it’s about protecting everyone’s right to free speech.”

This wasn’t the only flag request made by the Scaers that was denied. Stephen sought permission to fly a detransitioner-awareness flag for Detrans Awareness Day on March 12 this year, but Nashua rejected that application as well. And despite giving the couple permission to fly a Save Women’s Sports flag for a week in October 2020, the city removed it from the Citizen Flag Pole after a councilmember and others complained that the banner was transphobic.

In the past, Bethany Scaer applied to fly flags celebrating Martin Luther, women’s suffrage, and Christianity with no problem. Since the flag program’s inception in 2017, Nashua had also allowed its residents to fly flags supporting various causes such as Pride Month and organ donation.

In 2022, however, Nashua took a tougher stance on what can be displayed outside City Hall. The city adopted a formal flag policy in response to a May 2022 Supreme Court ruling that decided that Boston had violated the free-speech rights of a group that wanted to display a pro-Christian flag. The policy was adopted nine days after the ruling.

The written policy specifies that any flag used to celebrate “cultural heritage, observe an anniversary, honor a special accomplishment, or support a worthy cause” is allowed. Nashua “reserves the right to deny permission or remove any flag it considers contrary to the City’s best interest,” it states.

The plaintiffs seek a preliminary injunction to prevent Nashua from denying flag requests on the basis of viewpoint. The lawsuit names the City of Nashua, Mayor James Donchess, and Risk Manager Jennifer Deshaies, who rejected the flag applications, as defendants.

“Nashua’s flag policy gives city officials unbridled discretion to censor speech they dislike,” Institute for Free Speech attorney Nathan Ristuccia said. “The First Amendment doesn’t permit the government to turn a longstanding public forum into a personal billboard for city officials’ preferred views. The Supreme Court has warned against exactly this abuse.”

Editor’s Note: This article was updated to reflect a statement from the City of Nashua.