Citizen Flagpoles, Government Speech, and Viewpoint Discrimination: The First Circuit’s Application of Shurtleff in Scaer v. City of Nashua

Introduction

In Scaer v. City of Nashua, No. 25‑1356 (1st Cir. Dec. 22, 2025), the First Circuit confronted a now‑familiar question in modern First Amendment law: when a city lets private parties fly flags on a municipal flagpole at city hall, is it speaking for itself, or has it created a forum for private expression that must remain viewpoint‑neutral?

Nashua, New Hampshire, created a so‑called “Citizen Flag Pole” on City Hall Plaza in 2017. For several years, private groups applied to raise their own flags for short periods, often accompanied by private ceremonies. The controversy arose after the City revoked approval for a “Save Women’s Sports” flag, and later denied several other applications—including flags relating to transgender issues, abortion, and Palestine—under a policy asserting that use of the pole was government speech.

The plaintiffs, Stephen and Bethany Scaer, long‑time Nashua residents who had previously used the pole to fly other flags, claimed that the City’s denials were unconstitutional viewpoint discrimination. The City countered that, after adopting a 2022 written policy describing flag displays as “not intended to serve as a forum for free expression” and reserving the right to deny flags inconsistent with City “policies and messages,” it was merely choosing its own governmental messages.

On appeal from the denial of a preliminary injunction, the First Circuit:

Held that, under the Supreme Court’s recent framework in Shurtleff v. City of Boston, Nashua’s “Citizen Flag Pole” program was not government speech, but rather a forum for private expression; and
Concluded that, by its own concession, the City had engaged in impermissible viewpoint discrimination in violation of the First Amendment.

The court reversed and remanded with instructions to enter an interim declaratory judgment—rather than an injunction—recognizing the constitutional violation. The opinion offers a significant clarification of how Shurtleff applies to municipal flag programs and sets out practical constraints on cities’ ability to re‑characterize previously open forums as government speech simply by policy declaration.

Summary of the Opinion

The First Circuit’s core holdings can be summarized succinctly:

Government speech vs. private forum: Applying the holistic test from Shurtleff v. City of Boston, 596 U.S. 243 (2022), the court held that Nashua’s “Citizen Flag Pole” program, as operated from 2017 through the adoption and implementation of the 2022 flag policy, did not constitute government speech. Instead, it functioned as a forum for private expression.
Viewpoint discrimination: The City had conceded that if the flagpole program was not government speech, then its selective approval and denial of flags—based on whether their messages were “in harmony with City policies” or messages the City wished “to express and endorse”—amounted to unconstitutional viewpoint discrimination. By determining that the program was not government speech, the court effectively held that the City had violated the First Amendment.
Policy labels are not dispositive: The court rejected Nashua’s attempt to rely on the bare language of its 2022 policy (declaring the pole “not intended to serve as a forum for free expression by the public”) as sufficient to transform the program into government speech. Practice, structure, and actual control—not labels—govern the analysis.
Comparison with other models: The court distinguished Nashua’s approach from the City of San José’s more tightly controlled, closed‑list flag policy that Shurtleff had favorably cited as a valid government‑speech model. Nashua invited private applications, allowed private ownership and raising of flags, and did not truly curate or craft the messages.
Remedy—declaratory relief, not injunction: Although the plaintiffs initially sought a preliminary injunction, they agreed at oral argument that interim declaratory relief would suffice. The First Circuit held that a declaratory judgment is an appropriate, less coercive remedy against the government and instructed the district court to enter one consistent with its opinion.

The court left undisturbed Nashua’s later 2024 policy closing the flagpoles to private use and asserting “exclusive[] control” by the City; the plaintiffs expressly stated that they did not seek to force the City to keep the pole open to private expression.

Analysis

A. Precedents Cited and Their Role

1. Shurtleff v. City of Boston (2022)

Shurtleff is the centerpiece of the First Circuit’s analysis. In that case, Boston allowed private groups to apply to raise flags on one of three city hall flagpoles. After nearly 300 approvals with no denials, Boston rejected one application to fly a Christian flag, asserting that doing so would violate the Establishment Clause and that the flagpole program was government speech.

The Supreme Court unanimously rejected that argument, holding that the city had created a forum for private speech. It articulated a three‑factor, holistic test for distinguishing government speech from private speech in a government‑run program, looking to:

History: How has the form of expression historically been used?
Public perception: Would a reasonable observer see the message as the government’s, or a private party’s?
Government control: To what extent does the government actively shape, curate, or control the message?

The First Circuit imports and applies this exact framework, emphasizing, as Shurtleff did, that the government‑speech doctrine is “susceptible to dangerous misuse” if governments can simply label private speech as their own to silence disfavored viewpoints.

2. Pleasant Grove City v. Summum (2009)

In Summum, the Supreme Court held that permanent monuments in a public park, even when donated by private parties, were government speech because the City selectively accepted or rejected them, owned and maintained them, and treated them as part of its own display. The government must be free to choose which monuments to display without being required to host all.

Scaer invokes Summum to contrast that situation—where the government undeniably curated and owned the messages—with Nashua’s relatively hands‑off approach to the “Citizen Flag Pole.” Nashua did not adopt or own the flags, did not craft their content, and largely rubber‑stamped applications until complaints arose about particular viewpoints.

3. Walker v. Texas Division, Sons of Confederate Veterans (2015)

In Walker, specialty license plates were held to be government speech. Texas maintained direct control over plate designs, actively reviewed proposals, and rejected numerous designs. Plates bear the state’s name and are widely understood as state‑issued government identifiers.

The First Circuit notes that Nashua’s control over its citizen flag program fell far short of the intensive review and ownership seen in Walker. There was no rigorous content review, no state‑crafted designs, and no clear adoption of the messages as the City’s own.

4. Matal v. Tam (2017)

Matal held that federal trademark registration is not government speech, even though registration arguably imbues a mark with the imprimatur of the federal government. The Court warned that allowing the government to claim private speech as its own merely by “approving” it would permit the state to suppress disfavored viewpoints under the guise of government speech.

Scaer draws on this warning. Nashua’s 2022 policy did little more than assert that messages had to be “in harmony with City policies” and that a flag’s presence would “be deemed by many as City support.” The First Circuit, echoing Matal, rejects the idea that such a thin layer of governmental approval suffices to convert private messages into government speech.

5. Justice Alito’s concurrence in Shurtleff

The First Circuit also engages with Justice Alito’s concurring opinion in Shurtleff, which offers a more formalistic test: government speech exists only when the government:

purposefully expresses its own message,
through persons authorized to speak on its behalf,
using means that do not abridge private speech.

The concurrence further identifies two ways a government can legitimately use private assistance to speak:

By deputizing private persons as its agents to convey its message; or
By adopting a privately created medium of expression where control has been turned over to the government, which then uses that medium to express its own message.

The First Circuit concludes that Nashua’s program fits neither path. The City did not deputize private groups as its agents, nor did it adopt privately created flags as its own, controlling and using them to communicate government policies. Instead, it created a space for private discourse and then selectively excluded disfavored viewpoints.

6. Other cited authorities

Sutliffe v. Epping School District, 584 F.3d 314 (1st Cir. 2009) – The First Circuit had previously held that a town’s decision about which organizations to link to from its website was government speech, because the town itself curated and controlled those links as part of its own governmental communication. The court in Scaer uses Sutliffe as a contrast: Nashua’s flag program lacked that level of direct tailoring and editorial control.
United States v. Trump, 88 F.4th 990 (D.C. Cir. 2023) – Cited for the concept of a heckler’s veto, where government restricts speech to appease a hostile audience. The First Circuit analogizes Nashua’s removal of the “Save Women’s Sports” flag after complaints to a classic heckler’s veto scenario, underscoring that such conduct is constitutionally suspect in a forum for private speech.
Ashcroft v. ACLU, 542 U.S. 656 (2004) – Cited for the standard of review of preliminary injunctions.
Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81 (2014) – Cited for the rule that legal conclusions are reviewed de novo on appeal.
Brito v. Garland, 22 F.4th 240 (1st Cir. 2021), Ulstein Mar., Ltd. v. United States, 833 F.2d 1052 (1st Cir. 1987), and related First Circuit precedents – Used to articulate the distinction between injunctive and declaratory relief, and explain why declaratory relief is particularly suitable as an interim remedy against the government.

B. The Court’s Legal Reasoning

1. The threshold question: Government speech or private forum?

Everything in the case turns on a single classification: Is the flag display on the “Citizen Flag Pole” government speech, or is it private speech in a government‑created forum?

If it is government speech, the City is largely free to choose what to say and what not to say. The First Amendment does not require the government to provide “airtime for all views” when it is speaking in its own voice. If it is a private forum, however—especially one that is open to a variety of viewpoints—the City may not favor or disfavor speakers based on their viewpoints, even if the topic itself is allowable.

Nashua conceded that:

If the City’s decision not to allow these two citizens’ requests to fly flags on a “Citizen Flag Pole” on City Hall Plaza was not government speech, then the City has engaged in impermissible viewpoint discrimination under the First Amendment.

The court therefore focused its analysis entirely on whether the flagpole program was government speech under Shurtleff.

2. Applying the Shurtleff three‑factor test

a. History of the expression

The First Circuit acknowledges that, historically, flags at the seat of government have often been used to express governmental messages. Before 2017, Nashua used all four City Hall flagpoles only for government flags, such as the American and New Hampshire flags.

However, in 2017, the City deliberately re‑purposed one of the poles as the “Citizen Flag Pole,” open to private parties. That program was a clear departure from prior practice and:

Involved private groups supplying and owning their flags;
Allowed those groups to select the dates and often raise the flags themselves; and
Resulted in a variety of flags representing different cultural, political, and advocacy messages.

The court notes that this departure is “short‑lived” compared to the longer historical use of the flagpoles for official flags, but stresses that history is only the starting point. The decisive weight lies in how this new program actually functioned, not merely in how flags traditionally function near government buildings.

b. Public perception

The second factor asks whether an ordinary observer would perceive flags on this pole as the City’s own speech or as the expression of private groups.

Several points convinced the court that the public would not reasonably think of these flags as city messages:

The pole was explicitly branded as the “Citizen Flag Pole,” not as a purely municipal flagpole. That label was used by both City officials and the public, and distinguished this pole from the other three, which flew only government flags.
Private flag raisings were often accompanied by privately organized ceremonies on City Hall Plaza, frequently without any City official present. As Shurtleff observed in a similar context, a pedestrian could analogize the flag with the nearby group, not the City.
The City allowed a rotating array of dissonant messages—religious flags, cultural flags, cause‑related flags, and more. Under Matal, if all such diverse messages were governmental, the City would be “messaging incoherently,” and the public could reasonably doubt what, if anything, the City actually believed.
The City’s reactive conduct—initially approving the “Save Women’s Sports” flag, then removing it the next day in response to public complaints—looked like classic speech regulation to appease a hostile audience. That pattern is characteristic of a heckler’s veto, not of a government simply adjusting its own policy messages.

Taken together, these features suggest that members of the public would more likely understand the Citizen Flag Pole as a space where individuals or groups speak for themselves using a city‑owned structure, rather than as a curated platform for the City’s own messages.

c. Degree of government control over content and message

The third factor—degree of control—is decisive in the court’s analysis. The question is whether Nashua actively shaped and controlled the messages conveyed by the flags, as in Summum or Walker, or whether it simply facilitated private expression.

Key facts:

From 2017 to 2020, the City did not reject a single request to use the Citizen Flag Pole. Applications were processed primarily to avoid scheduling conflicts and ensure compliance with technical event requirements.
The City did not design, own, or maintain the flags. Applicants provided their own flags, retained ownership, and typically raised them themselves with City equipment.
The City required indemnification from applicants, underscoring that the activity was treated as the applicants’ own event, not a governmental campaign.
Only in 2020 did the City start making viewpoint‑based denials—the “Save Women’s Sports” flag and the “Porcupine” flag—after complaints or concerns about the underlying viewpoints.
Crucially, the City conceded that its pre‑2022 practices treated the pole as a forum for private speech. The 2022 policy was adopted only after Shurtleff was decided and appears to have been an effort to retroactively reclassify the program as government speech.

The court also gives weight to the City’s own wording in the 2024 policy, which states that the flagpoles “shall henceforth be exclusively controlled by City government” (emphasis added). This implies that, before 2024, the flagpoles—at least the Citizen Flag Pole—were not exclusively under government control.

Comparisons to other cases make this clear:

In Summum, the City owned the monuments, independently decided which to accept, and made them part of the park’s permanent layout.
In Walker, the state board thoroughly vetted license plate designs and maintained strict control over their content.
In Sutliffe, the town carefully selected which links appeared on its website, clearly acting as editor and speaker.

By contrast, Nashua:

Accepted unsolicited private requests;
Placed minimal substantive conditions on access;
Did not create a closed, predetermined set of “official” flags; and
Only engaged in content control to exclude disfavored viewpoints, not to craft a coherent governmental message.

The court concludes that Nashua was “doing no more than simply approving that private speech with which it agreed” in a forum that, functionally, had been opened to private expression. This is precisely the scenario Matal warned against: the attempt to pass off private speech as government speech in order to silence or dilute unwanted viewpoints.

3. The failed analogy to the San José policy

Nashua argued that its 2022 policy mirrored the City of San José’s policy that Shurtleff had referenced as an example of valid government speech. The First Circuit firmly rejects this comparison.

San José’s policy:

Expressly stated that flagpoles were not forums for public expression and backed that statement up with a closed, detailed list of approved flags: U.S., state, city, and a narrow set of ceremonial flags (e.g., flags of recognized foreign governments, sister cities, and professional sports teams in very circumscribed circumstances).
Limited display of ceremonial flags to official city actions or events, at the direction of specific city officials.
Did not invite private proposals, did not allow private ownership, and did not permit private parties to conduct independent ceremonies using city flagpoles.

By contrast, Nashua’s 2022 policy:

Continued to reserve a pole “for use by persons to fly a flag in support of cultural heritage, observe an anniversary, honor a special accomplishment, or support a worthy cause.”
Accepted unsolicited applications from private parties, who selected dates, supplied flags, retained ownership, and often organized ceremonies.
Added only a boilerplate statement that the pole was “not intended to serve as a forum for free expression” and reserved the right to deny flags not “in harmony with City policies.”

The First Circuit treats this as a stark illustration of the difference between:

A genuinely government‑controlled flag program (San José) that speaks in the government’s voice; and
A forum for private expression that a city is attempting to retroactively re‑label to gain censorship discretion (Nashua).

Put simply, labels and disclaimers are not enough. Structural reality and actual practice control the constitutional analysis.

4. Even under Justice Alito’s test, Nashua loses

The court reinforces its conclusion by applying Justice Alito’s stricter test from his Shurtleff concurrence. As noted above, that test asks whether the government:

Is actually expressing its own views through authorized agents; and
Is not using methods that suppress private speech.

Under this approach, government speech can occur through private assistance only if:

The government deputizes private parties as its own messengers; or
The government adopts privately created content over which the private party has ceded control, then uses that content to convey an intentional governmental message.

The First Circuit finds that:

Nashua did not deputize applicants as city representatives; they spoke as themselves.
Applicants retained control and ownership of their flags; there was no transfer to the City followed by deliberate municipal use.
The City’s only meaningful exercise of discretion was to accept or reject private messages, not to formulate its own coherent policy message.

Thus, even on a more government‑deferential view, Nashua’s flag program is not government speech. It is a city‑managed forum for private expression.

5. Consequence: Unconstitutional viewpoint discrimination

Once the court concludes that the program is a forum for private speech, Nashua’s actions become constitutionally suspect. The City:

Allowed numerous flags espousing various cultural, religious, and civic themes (e.g., Pride flags, organ donation, Kurdistan, Christian and Lutheran flags).
Denied or removed flags whose messages were controversial in contemporary political and social debates: “Save Women’s Sports,” “Detransitioner Awareness,” a “Pro‑Life” flag, and the Palestinian flag.
Justified these denials by stating the flags were not “in harmony with City policies” or messages the City wished to “express and endorse.”

That rationale is classic viewpoint discrimination: the City disfavored specific perspectives on otherwise permissible subject matters (gender identity and sports, abortion, foreign policy/Palestine, etc.). In any type of forum that allows speech on those topics, the First Amendment bars singling out particular viewpoints—whether progressive, conservative, religious, or secular—for exclusion.

Because Nashua had conceded that a non‑government‑speech classification would amount to a First Amendment violation, the court does not undertake a separate, extended viewpoint‑discrimination analysis. The concession and the record suffice.

6. Remedy: Why declaratory relief instead of an injunction?

The case arrived at the First Circuit on appeal from the denial of a preliminary injunction. Traditionally, a plaintiff must show a likelihood of success on the merits, irreparable harm, a favorable balance of equities, and that an injunction serves the public interest.

Here, however, the plaintiffs’ counsel told the court at oral argument that an interim declaratory judgment would suffice as relief at this stage. The First Circuit agreed, explaining:

A declaratory judgment can have “much the same practical effect” as an injunction by clarifying the parties’ legal rights and obligations.
It is a “milder” remedy, in that it does not itself compel action or expose the government to contempt sanctions.
Particularly when the government is a defendant, declaratory relief may be more appropriate as an initial remedy, reserving the possibility of injunctions if the government later refuses to conform its conduct to the court’s declaration.

The plaintiffs also explicitly disclaimed any desire to:

Prevent Nashua from closing the Citizen Flag Pole to all private expression; or
Require the City to maintain a private‑speaker flag program going forward.

They sought only recognition that, while the City did operate such a program, it was bound to respect viewpoint neutrality. Given this limited, declaratory goal, the court reversed the district court’s order and remanded with instructions to enter an interim declaratory judgment consistent with its holding.

C. Impact: Implications for Future Cases and Municipal Practice

1. Clarifying the reach of Shurtleff in the First Circuit

Scaer is an important post‑Shurtleff decision because it:

Shows that merely invoking the phrase “government speech” and adding a disclaimer to a policy are insufficient to escape First Amendment constraints when actual practice reveals a forum for private expression.
Emphasizes that courts must look at real‑world structure and operation—branding, application procedures, ownership, ceremonies, and the pattern of approvals and denials—rather than rely solely on official policy text.
Underscores the Supreme Court’s caution that the government‑speech doctrine should not be extended lightly, as it carries the danger of legitimizing censorship of unpopular viewpoints.

2. Practical guidance for municipalities

For cities and towns seeking to manage flags (or similar symbolic displays) at public buildings, Scaer provides a de facto checklist:

If a municipality wants a purely governmental flag program:
- Limit flags to a closed, predetermined set of official or ceremonial flags (e.g., national, state, city, sister cities, or other officially endorsed flags).
- Have flags owned, supplied, and raised by the government, not by private groups.
- Restrict displays to official city actions, events, or proclamations, under the direction of designated city officials.
- Do not accept open, unsolicited applications from the public for new flag types.
If a municipality opens a pole as a “citizen” or “community” flagpole:
- Be prepared for that pole to be treated as a forum for private expression.
- Ensure that decisions are not based on viewpoint. Some content‑based rules (e.g., size, safety, time limits) are acceptable, but selective exclusion of certain perspectives is not.
- Understand that last‑minute policy changes following litigation, especially if they appear designed to avoid a controversial flag or speaker, may be scrutinized under doctrines like voluntary cessation and may not moot the case.

3. Broader implications for controversial political and social expression

The specific flags at issue in Scaer—“Save Women’s Sports,” “Detransitioner Awareness,” Pro‑Life flags, and the Palestinian flag—reflect some of the most contentious contemporary debates: transgender participation in sports, gender transition and detransition, abortion, and global conflicts. The court’s opinion deliberately refrains from opining on the substance or legality of these underlying issues (which are being litigated elsewhere, e.g., in Tirrell v. Edelblut regarding New Hampshire’s HB 1205).

Instead, the case reinforces a core First Amendment principle: when the government opens a space for private expression and allows speech on those topics, it cannot shield itself from hosting controversial viewpoints simply by declaring that it now wishes to “endorse” only certain messages. This applies across the ideological spectrum—protecting pro‑LGBTQ+ and pro‑transgender advocacy as much as it protects the converse.

4. Doctrinal ripple effects

While Scaer concerns flags, its reasoning has potential applications to:

Other symbolic displays (murals, banners, art installations) at government buildings;
Digital spaces operated by municipalities (social media pages, online “community boards,” or featured links on official websites) where cities might try to curate content while avoiding responsibility for viewpoint discrimination;
Special event policies (e.g., access to public stages at festivals, lighting of public buildings in specific colors for particular causes); and
Emerging disputes involving expressions related to current social controversies (Palestinian flags, Pride flags, Back‑the‑Blue flags, and so forth).

The key takeaway is that when a government invites and facilitates diverse private expression, it must abide by standard First Amendment norms—especially the absolute ban on viewpoint discrimination in any type of forum.

Complex Concepts Simplified

Government speech doctrine: When the government is speaking in its own voice (for example, a state‑run advertising campaign or an official city press release), it may choose its own messages and is not required to give equal time to opposing viewpoints. The First Amendment generally limits the government’s power to regulate private speech, not its ability to speak for itself.
Public forum / forum for private speech: A “forum” is government property opened to expressive activity (e.g., a park, meeting room, or, here, a flagpole). Different types of forums impose different rules, but in all of them the government is forbidden from favoring or disfavoring speech based on viewpoint.
Viewpoint discrimination: Treating speech differently because of the specific perspective it expresses on an otherwise permissible subject. For example, allowing flags about environmental issues generally but rejecting a pro‑fossil‑fuel flag is viewpoint discrimination. It is almost always unconstitutional.
Content discrimination vs. viewpoint discrimination:
- Content‑based distinctions regulate topics (e.g., “no political flags, only cultural flags”). These are often subject to heightened scrutiny.
- Viewpoint‑based distinctions regulate which side of a topic can speak (e.g., “Pro‑LGBTQ+ flags are allowed; anti‑LGBTQ+ flags are not”). These are presumptively unconstitutional in any speech forum.
Heckler’s veto: When the government suppresses a speaker’s expression because the audience reacts (or is expected to react) with hostility or complaints. The First Amendment generally requires the government to protect the speaker’s right to express their viewpoint, rather than rewarding objectors by silencing the speech.
Preliminary injunction: A court order issued before a final judgment, temporarily requiring or preventing certain actions. To get one, a party usually must show a likelihood of success on the merits, irreparable harm, and favorable balancing of equities and public interest. It is a coercive remedy: violating it may lead to contempt sanctions.
Declaratory judgment: A judicial declaration of the parties’ rights and legal status, without directly ordering anyone to act or refrain. While non‑coercive, it clarifies the law and often shapes future behavior. It can be especially appropriate when a government entity is involved.
Voluntary cessation and mootness (in the background): When a government changes its policy after being sued (as Nashua did in 2024), courts are wary of declaring the case “moot” (i.e., no longer live). The party claiming mootness must show it is “absolutely clear” the challenged conduct will not recur. The magistrate judge correctly held that Nashua’s policy change did not moot the case because the City could revert to its old practices or adopt similar ones.

Conclusion

Scaer v. City of Nashua is a significant First Circuit decision on the scope of the government‑speech doctrine in the wake of Shurtleff. It confirms that:

Governments cannot transform a practically open forum for private expression into government speech simply by adding a disclaimer that the forum is “not intended” as a public forum or by reserving the right to reject messages they dislike.
Where a “citizen” or “community” flagpole functions as a platform for private groups to display their own messages, the City must apply standard First Amendment rules, including the categorical prohibition on viewpoint discrimination.
A carefully crafted, tightly controlled flag policy—like that of San José—can legitimately be government speech, but only where practice matches policy, and where the government truly curates and owns the message.
Declaratory relief is an effective and appropriate interim remedy against governmental defendants, particularly when plaintiffs seek clarification of constitutional principles rather than ongoing operational control over government property.

By ordering an interim declaratory judgment, the First Circuit ensures that Nashua’s past conduct is recognized as unconstitutional viewpoint discrimination, while leaving the City free to adopt a genuinely government‑controlled flag policy going forward, or to close the forum entirely. The decision thus both protects private speech in open forums and preserves governmental prerogatives when the government truly speaks for itself.