Flags displayed on the City of Nashua Citizen Flag Pole were government speech not regulated by the First Amendment
Bethany and Stephen Scaer were denied permission to fly certain flags on the “Citizen Flag Pole” based on a City of Nashua policy reserving the right to deny permission to fly any flag that was not in harmony with City policies. Starting in 2017 the City established a program to allow members of the public to apply for approval to fly flags on the Citizen Flagpole. The City established some limitations by reserving the Citizen Flag Pole “for the citizens of Nashua to fly a flag in support of their cultural heritage, observe an anniversary or honor a special accomplishment.” This approach to managing the Citizen Flag Pole changed in 2022 due the decision of the U.S. Supreme Court in Shurtleff v. City of Boston, 596 U.S. 243 (2022). During the period between the establishment of the flag program in 2017 and the adoption of the 2022 Flagpole Policy, Nashua refused to fly a citizen’s flag on only two occasions.
In May 2022, Nashua adopted a written flagpole policy where the City expressly reserved the right to deny permission to fly any flag on the Citizen Flag Pole that was not in harmony with City policies or was contrary to the City’s best interest. That 2022 Flagpole Policy remained in force until October 7, 2024, when Nashua eliminated the Citizen Flag Pole program altogether with the adoption of the 2024 Flagpole Policy which declared that all flagpoles on city hall grounds shall henceforth be exclusively controlled by city government, and that the City alone would determine what flags will be flown.
The Scaer’s sought a preliminary injunction enjoining the City of Nashua from denying their flag display applications under the City Hall Plaza Events policy, seeking to restore the 2022 Flagpole Policy, or from closing the Citizen Flag Pole as a forum entirely. The Court concluded that the Scaer’s could not demonstrate the requisite likelihood of success on the merits because the management by the City of the display of flags on the Citizen Flag pole constituted government speech as opposed to a restriction on private speech.
Applying factors provided by the U.S. Supreme Court in Shurtleff the District Court considered the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression. The Court concluded that “the three factors, taken together, support the conclusion that the flags displayed on the Citizen Flag Pole under the 2022 Flagpole Policy constituted government speech, the Scaers failed to establish a strong likelihood that they will ultimately prevail on their claims against defendants and there is no need to address the parties’ arguments regarding the merits of plaintiffs’ constitutional claims.”
READ MORE IN COURT DECISION!
Practice Pointer: Municipalities can adopt policies that controls the content of signs and flags that are displayed at government venues. A written policy should be developed that makes clear that the government venue is not intended to serve as a forum of free expression by the public, rather any sign or flag displayed is an expression of the sentiments of local government. Judicial review of a municipal ordinance that permits the
display of flags or signs will focus on the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.