Screenshot from The Boston Globe. That’s a Brazilian flag, by the way.
I bring your attention to this local contretemps up in New England, and hope The Boston Globe won’t mind my quoting this much of it:
NASHUA — One of the flagpoles outside Nashua City Hall is the latest lightning rod in litigation over free speech.
The pole, which stands next to those flying the American and New Hampshire flags, features a rotating assortment of banners contributed by community members to acknowledge special occasions, cultural heritage, and worthy causes.
But the city’s refusal to fly certain flags has sparked consternation, and a local couple, Stephen and Bethany R. Scaer, allege officials are infringing on their First Amendment rights.
One of their two rejected flags says “Save Women’s Sports’’ and promotes awareness of people who no longer identify as transgender. The other, which features a pine tree and the slogan “An Appeal to Heaven,’’ has historic roots in the American Revolution but recently has been co-opted by Christian nationalists.
Nashua’s risk manager, Jennifer L. Deshaies, rejected the applications, saying the flags were “not in harmony with the message that the City wishes to express and endorse.’’ The Scaers appealed to Mayor James W. Donchess, but he upheld the rejections.
Earlier this month the Scaers sued the city in federal court, with backing from the Institute for Free Speech. One of their attorneys, Nathan Ristuccia, said Nashua’s policy had inappropriately given city officials “unbridled discretion to censor speech they dislike.’’…
(Of course, as always, I urge you not only to go see if the Globe will let you read the story, but to go beyond that. I highly recommend subscribing. I love that paper.)
The easy thing to say about this is that the city of Nashua was asking for this — just as, say, South Carolina is asking for trouble when it agrees to issue specialty license plates for various groups and causes, from shag enthusiasts to the Sons of Confederate Veterans. There’s always going to be a moment when you regret opening that box, when you realize this is not something we need to be promoting on behalf of all the people.
Unless, of course, you feel no sense of responsibility as a steward of the public’s property and resources.
Anyway, Nashua shouldn’t have placed itself in this position. It should and must fly the U.S. and New Hampshire flags, as a true and direct statement of what holds sovereignty in that space. But that’s not the point I sat down to discuss.
My point is, the assertion by anyone that refusing to allow this flagpole to be used by anyone who wants to is somehow a denial of free expression in any way is utterly absurd.
You say the plaintiffs have been silenced? How, exactly? Who is stopping them from erecting a flagpole on their own property — or the property of someone who willingly allows it — and flying an “Appeal to Heaven” flag, or any other banner, that rivals those that wave so slowly and majestically above some promotion-minded car dealerships?
No one. Who is keeping them from posting about it all day and night to the entire world via social media — or a billboard, or a magazine article, or by stripping to the waist and painting the message on their torsos and appearing at the nearest sporting event that is being televised? Or boring their friends to death yammering about it? No one.
Who has stopped them from filing a lawsuit in the public courts in order to seek a redress of their supposed grievance? Or from being interviewed, and speaking freely during it, to a reporter covering the lawsuit for a prominent story in the nation’s 13th-largest newspaper? (Which, let me point out, gets them way, way more exposure for what they wish to express than the flagpole would.)
Again, you know the answer: No one. They have gone on expressing themselves, and no one has put them in prison. No local Putin has caused them to unwittingly ingest a deadly radioactive substance.
The only thing that has happened to frustrate these folks is that the election officials of the town of Nashua have refused to use a public resource to promote something for them. As rebuffs go, this is akin to the council declining to allow the plaintiffs to withdraw funds from the city treasury in order to buy themselves an ad in the local paper.
This story of course grabbed my attention in part because of my two decades of arguing that the Army of Northern Virginia battle flag should not be flown at the Statehouse. This was a particularly easy point to make when it flew atop the dome, with the two flags that legitimately identified the sovereign entities that held sway in that temple of lawmaking. That was ridiculous on so many levels, without even getting into what you or I thought of the Confederacy. It wasn’t a governmental flag of any kind. It represented no nation or state or constitution. It was simply a thing carried by a large military unit to identify itself to friend and foe on a battlefield.
And it was only marginally less absurd than when it flew later behind a Confederate monument that stands on the most conspicuous spot on the capitol grounds. Of course, we all knew why it was there: to flash a big middle finger at anyone who didn’t want it there. Which was something some people irrationally thought they were entitled to do with our property.
But that’s behind us.
Of course, I was also drawn to the subject for another reason that should be obvious. You may have noticed I mentioned a number of ways that the plaintiffs were free to express whatever they wished: a social media post, a billboard, an ad in the local paper, body painting. There are many other modes of expression available to the aggrieved pary, including, of course, a blog.
But if they want to say absolutely anything they wish, in any way they wish, they need to start their own blogs. When the First Amendment was adopted, such a forum wasn’t available to everyone. As my mass communications law professor noted during my school days, freedom of the press was guaranteed only to those who owned a press. That is no longer true. Now, you can start your own blog for essentially no cost, beyond your own precious time. And then you can express yourself without limit, prattling on all you like.
Of course, if that’s too much effort, you can comment on a blog that places no restriction on what you say, or even welcomes what you are eager to express.
But if a blog has standards that are inconsistent with your preferred style of expressing yourself, that blog’s owner or managers are under exactly no obligation to use their forum to promote it for you.
If any blog — or newspaper or social medium or billboard company or supplier of body paint — is willing to let you use its resource to post even so much as one comment for free, then you are receiving a gift.
Try to keep that in mind. In the meantime, I hope the court dismisses the claim that plaintiffs are being somehow “censored.” It is utterly without merit.
