For decades, the City of Nashua, New Hampshire, maintained exclusive control over four flagpoles on City Hall Plaza, flying only government flags like the American and state flags. In 2017, the city created a 'Citizen Flag Pole' program allowing private citizens to fly their own flags to honor cultural heritage or special accomplishments. Initially, the city approved every request without substantive review, often without city officials present at the flag raisings. However, in 2020, the city revoked permission for a 'Save Women's Sports' flag and later denied applications for flags associated with the Libertarian Party, detransitioners, and the Pine Tree flag, citing that their messages were not in harmony with city policies. Following the Supreme Court's 2022 decision in Shurtleff v. City of Boston, the city adopted a written policy in 2022 explicitly stating that the pole was not a forum for free expression and that the city reserved the right to deny flags it did not endorse. When the Scaers sued under 42 U.S.C. § 1983 seeking a preliminary injunction, the district court denied the motion, agreeing with the city that the program constituted government speech. The Scaers appealed, and the city conceded that if the program was not government speech, its denials constituted impermissible viewpoint discrimination.
Writing for the panel, Circuit Judge Lynch applied the holistic test established in Shurtleff v. City of Boston to determine whether the Citizen Flag Pole program was government speech or a forum for private expression. The court emphasized that the government speech doctrine is susceptible to dangerous misuse and must be applied with caution to prevent the government from silencing disfavored viewpoints by passing off private speech as its own. The analysis focused on three factors: the history of the expression, the public's likely perception, and the extent of government control. First, the court noted that until 2017, the flagpoles were used exclusively for government flags, and the Citizen Flag Pole was a relatively recent departure from that history. Second, the public likely perceived the flags as private speech because the program was named the 'Citizen Flag Pole,' private citizens supplied and raised the flags, and ceremonies were often conducted without city officials present. Third, and most critically, the city exercised very little control over the content or meaning of the flags. Unlike the government speech precedents where the government actively selected, funded, or designed the expression, Nashua allowed private parties to choose the dates, supply the flags, and retain ownership. The city's 2022 policy, which attempted to claim government speech status, was insufficient because it merely copied a disclaimer without adopting the tightly controlled, closed-list system of flag selection seen in Shurtleff's favorable example. The court concluded that the city was simply providing a forum for private parties to submit their own productions, meaning usual First Amendment principles applied. Since the city had conceded that denying flags based on their messages constituted viewpoint discrimination in a non-government speech forum, the court found the city's actions unconstitutional.
The decision reverses the district court's denial of relief and remands the case with instructions to enter an interim declaratory judgment confirming that the Citizen Flag Pole program is not government speech and that the city's viewpoint-based denials were unconstitutional. This ruling clarifies that cities cannot claim government speech status for programs that invite private expression without exercising significant control over the content, thereby protecting private speakers from viewpoint discrimination. The court noted that the Scaers do not seek to close the pole entirely, and the interim declaratory relief serves as a sufficient remedy without the need for a coercive injunction. The city must now allow private citizens to fly flags on the Citizen Flag Pole without discriminating based on the messages they convey.
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