Board Of Aldermen - Minutes - 10/13/2020 - P67
Board of Aldermen 10-13-2020 Page 67
received many complaints and people thought that it represented Nashua’s official position on women’s
sports. So the City took the flag down because it is neutral on that topic. By all outward appearances,
however, it seems that the City of Nashua bowed to complaints by people who disagreed with the content
of Ms. Scaer’s message. An organization calling itself Mutual Aid & Defense NH has a Facebook Page
containing posts about the flag. Messages posted on that page express opposition to the message on Ms.
Scaer’s flag, propose 22 weeks of counter messaging by the flying of various LBGT flags and include a
post asking Jim Donchess, why are we flying a transphobic flag in Nashua, not cool.
On a different forum, Nashua NH Civic Sounding Board a person identified as (inaudible) wrote that as
word of Ms. Scaer’s flag spread through the community, the response was clear. This is not what Nashua
stands for. Her post then goes on to say many thanks to Jim Donchess for your quick response. Jan
Schmidt and Jen Mortin and Mutual Aid & Defense NH for the calls to action. The post concluded that the
author is looking forward to updated guidelines to ensure that future flag requests are vetted more carefully.
This same individual tweeted, got a message from Jim Donchess late last night, flag is coming down. We
need to have a serious look at the approval process for these things moving forward. It is readily
apparently that your decision to remove Ms. Scaer’s flag was a direct response to criticism of the content of
her expressive activity. This is an illegal and unconstitutional act of censorship under the First and
Fourteenth Amendments of the United States Constitution and Part 1, Article 22 of the NH Constitution.
The City does not need to permit members of the public to display flags on the citizen’s flagpole, but once it
decides to do so it must allow members of the public to do so without being subjected to viewpoint
discrimination. On behalf of Ms. Scaer | ask that you reconsider your previous decision to remove her flag.
Generally speaking, Supreme Court cases recognize three types of Government controlled spaces for First
Amendment purposes; traditional public forums, designated public forums and non-public forums. In a
traditional public forum parks, streets, sidewalks and the like, the Government may impose reasonable time
place and manner restrictions on private speech. But restrictions based on content must satisfy strict
scrutiny. And those based on viewpoint are prohibited. The same standards apply to designated public
forums, spaces that have not traditionally been regarded as a public forum which the Government has
initially opened for that purpose.
To satisfy strict scrutiny, the Government must prove that is laws and actions are narrowly tailored to
achieve a compelling Government interest. The citizen flagpole is clearly a designated public forum. The
City Government's specifically provides public property and invites citizens to provide flags to be flown on
the pole. In order to justify your censorship of Ms. Scaer based on the message on her flag, you must be
able to prove that your action was taken pursuant to an Ordinance that is narrowly tailored to achieve a
compelling Government interest. Given the complete absence of an Ordinance providing any guidance
whatsoever on this subject matter, there is no possible way that your actions can meet the standard. It
simply appears that you or some of your constituents disapproved of the message advocated by Ms. Scaer
and you decided to censor her expression as a result. The plainly unconstitutional actions you took in
removing Ms. Scaer’s flag represents a clear constitutional violation that should not be permitted to stand.
Kindly reconsider your action and return Ms. Scaer’s flag to its rightful place, atop the citizen flagpole.
Thank you. Your turn.
Stephen Scaer 111 East Hobart Street. Very briefly what we were trying to celebrate, what we were trying
to commemorate was Salina Soueka and she’s having a virtual marathon fundraising. And what happened
to her last year was she finished one place short of advancing to the indoor finals at a State Track & Field
Championship in Connecticut. She probably would have gone on to regionals, but two biological males
who identify as females and had recently competed as male runners took first and second place and
bumped her down. Since males are allowed to compete against women, they have taken medals, and
shattered records in volleyball, basketball, mixed martial arts, women’s football, weight lifting, body building
and bicycling. Selena is fighting back saying that her Title 9 rights were violated by this unfairness. This
takes great courage.
As you all know as well as anyone, anyone who objects to males competing against women will at least be
labeled a transphobic hater. Selena also has been blacklisted by colleges and future employers. There’s
