A federal court says a New Hampshire town violated residents’ First Amendment rights when it rejected their request to fly a flag that protested transgender athletes’ participation in women’s sports.

This week, a three-judge panel on the First Circuit Court of Appeals unanimously reversed a ruling by a lower court, finding that Nashua violated residents’ First Amendment rights by declining to fly their flags.

The case stems from a 2024 lawsuit brought by a New Hampshire couple, Bethany and Stephen Scaer, who asked Nashua to fly two flags on the “citizen flagpole.” One of the flags read, “Save Women’s Sports,” in protest of transgender athletes competing in women’s sports. The other flag read, “An Appeal to Heaven.” While some liberal commentators have linked the latter flag to the January 6 riot at the U.S. Capitol, Ms. Scaer said she wanted the flag — which originated during the American Revolution —to be flown to honor soldiers from Nashua who fought at the Battle of Bunker Hill. 

Residents of Nashua could apply to have the city fly a flag to support their cultural heritage, honor an accomplishment, or support a cause. The city has also declined to fly Palestinian flags and flags that oppose abortion.

A trial court ruled against the Scaers, finding that the flags flown at City Hall would constitute government speech. 

However, the First Circuit said that the flagpole served as a forum for private speech, and that the city engaged in unconstitutional viewpoint discrimination by rejecting the Scaers’ flags.

The judge who wrote the opinion, Sandra L. Lynch, said, “Nashua was doing no more than simply approving that private speech with which it agreed.”

In a statement, Ms. Scaer said, “No one should have to face government censorship for expressing their beliefs.”

“We’re thrilled with this victory for free speech rights throughout New England,” she added. 

An attorney for the Institute for Free Speech, Nathan Ristuccia, who represented the Scaers, said in a statement, “As the First Circuit recognized, governments cannot get away with censorship by labeling that censorship ‘government speech.”

“We are delighted that the First Circuit intervened to prevent Nashua from doing exactly that,” he added.

An attorney for Nashua told the Boston Globe that the city is considering whether to appeal the ruling. 

Since the lawsuit, Nashua has updated its policy and no longer accepts requests to fly flags at city hall.

The First Circuit remanded the case to the district court to grant interim declaratory relief.