The city denied my application to fly a flag expressing my political views on a flag pole when it lets other people and groups fly flags, do I have recourse under the law to challenge the decision and will I win?

14 January 2026

Answer: Yes, and probably yes, as it appears you are the victim of viewpoint discrimination prohibited under First Amendment jurisprudence.

In the case of Scaer et al. v. City of Nashua, New Hampshire, the citizens initially had their application to fly the “Save Women’s Sports” flag revoked and then soon later their application to fly the “Porcupine” flag symbolizing the Free State Project and the Libertarian Party was denied.  They appealed the City’s decision to the Mayor’s office and was also denied.  After taking the case to federal court, the district court initially ruled in favor of the City because it found the City was engaged in government speech and had a right to only approve flags consistent with its speech.  It was not until they appealed further to the United States Court of Appeals for the First Circuit did the plaintiffs prevail.  Scaer, et al v. City of Nashua, Docket No. 25-1356, (1st Cir. 2025))(Dec. 22, 2025).  At the appeals court, the issue came down to whether the City’s flying of different flags was governmental speech, which the court found it was not under the applicable test outlined in Shurtleffv. City of Boston.  596 U.S. 243 (2022).  If the speech was not governmental speech, than what the City did was engage in viewpoint discrimination in violation of the First Amendment.  The City had not denied an application since the program’s launch in 2017 through 2020 until it revoked the plaintiffs’ flag flying.  The reason given was that each flag was not “in harmony with City policies” or one that the City “wishe[d] to express and endorse.”

The City had also denied applications from other entities such as one to fly the “Pro-Life” flag and another to fly the Palestinian flag.

Since the appeals court found that the flag flying program was NOT governmental speech, it was determined that the City conducted viewpoint discrimination by picking and choosing among viewpoints in allowing some flags to fly and not others.  One would think that a City the size of Nashua would know better than to make such an apparently obvious violation of the First Amendment, but in reality there are fairly apparent constitutional violations more often than you may imagine.  The plaintiffs here were tenacious, they had to take their case up  three levels to finally prevail.

In the event you believe you are the victim of a first amendment viewpoint discrimination claim, feel free to give this office a call.