The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Court Blocks School Board's Exclusion of Critic from School Board Meetings (and Other School Functions)
"[I]t is hard to shake the sense that the School Board is restricting the speech because the Board disagrees with both Mr. McBreairty's opinions and the unpleasantness that accompanies them."
From Judge Nancy Torresen's decision yesterday in McBreairty v. School Bd. of RSU22 (D. Me.), reviewing the ban (until Dec. 31, 2022) of Shawn McBreairty from "entering RSU 22 property for the purpose of attending any RSU 22 school-related meeting or function in person, or participating in any RSU 22 school-related meeting or function held electronically via video or audio":
Mr. McBreairty spoke at the School Board meeting on October 20, 2021. Mr. McBreairty discussed an RSU 22 teacher's reading list and the availability of certain books in RSU 22 school libraries, and he read a passage from one book—The Bluest Eye by Toni Morrison—that was on the shelves of the high school library. It appears from the video of this meeting that Mr. McBreairty ran over his allotted three minutes of speaking time but was permitted by the Chair to continue speaking and wrap up his comments.
Mr. McBreairty then spoke at the School Board's November 2021 meeting. In his public comment, he raised concerns about the academic readiness of RSU 22 students, and he recounted an earlier private meeting he had attended with the Chair and several RSU 22 administrators about various concerns he had about school practices. He also discussed the School Board's failure to respond to a follow-up email he had sent them and referred to phone calls he had had with the Chair and another School Board member about his concerns.
He ran over his speaking time, and the Chair asked him to finish up his statement. Mr. McBreairty concluded by requesting that the Chair (Defendant Miller) resign. On the video, as Mr. McBreairty continues to speak, several voices can be heard telling him that he is out of time and out of order, and Mr. McBreairty, after continuing to speak more loudly for several seconds, sits down.
At the School Board meeting on December 15, 2021, Mr. McBreairty again spoke during the public comment period. At this meeting, Mr. McBreairty again voiced his concerns about several school-related issues, including the books in the RSU 22 school libraries, and urged parents to unenroll their children from the district's schools. He told the School Board that he would be submitting a list of books that he believed would be appropriate for school-aged children, and he then began reading from one of the books.
At that point, the Chair asked to interrupt Mr. McBreairty for a second and stated that reading from a book was an activity and that the time was set aside for public comment. Mr. McBreairty continued reading over some objections, and the Chair warned him that if he continued reading, he would be asked to sit down. Mr. McBreairty kept reading, and the Chair asked him to sit down and informed him that his public comment period was over. Mr. McBreairty then went back to his seat, announcing the title of the book he had been reading from as he went. He had spoken at the podium for approximately two minutes and twenty seconds before he took his seat.
Mr. McBreairty spoke at the School Board's meeting on January 19, 2022, and again raised concerns he had about RSU 22's administration and what was being taught in its schools. Towards the end of his comment period, he addressed members in the audience, thanked them for calling him a "toxic force" because it had given him the idea for the t-shirt he was wearing, and announced that he may start selling those shirts.
At the School Board meeting on March 16, 2022, Mr. McBreairty spoke during the public comment period. Again, Mr. McBreairty voiced his grievances about the School Board and its Chair and his ongoing concerns about a school reading list, including expressing displeasure with the teacher who had created the list.
During his comments, Mr. McBreairty was warned by the Chair several times not to talk about specific school staff members. Mr. McBreairty countered that a local resident had said he was going to rape Mr. McBreairty's wife because of his comments to the School Board. The Chair interrupted to say that he was "going down the line of gossip" and told Mr. McBreairty to "either finish up within our policy or have a seat." Mr. McBreairty continued speaking for the remainder of his three minutes, and, during the final seconds the Chair told him to sit down as he was out of time and was again making comments concerning specific RSU 22 personnel.
{I question whether there really was a threat to rape Mr. McBreairty's wife. In his Reply, Mr. McBreairty attached a screenshot of a contentious Facebook Messenger exchange that went as follows:
Mr. McBreairty: Ok, I'll live rent free in your empty head. Have a great night!
Joe Beth: How original. I'll remember it when I'm fucking your cow wife.
This seems more like juvenile social media trash talk than a credible threat.}
On April 8, 2022, counsel for RSU 22 sent Mr. McBreairty a letter and a copy of RSU 22's Policy, reminding him that he was expected to follow the Policy during the public comment period of School Board meetings. The letter warned Mr. McBreairty that failing to comply with the Policy and the Chair's requests at meetings would result in the School Board taking appropriate action.
Mr. McBreairty attended the next School Board meeting held on April 27, 2022. He again voiced concerns about a school book list and referred to a phone conversation he had had with the Chair about the complained-of books.
Mr. McBreairty began playing a recording of that conversation, and the Chair interrupted to tell him that playing a recording was not permitted under the Policy. Mr. McBreairty disagreed and continued to play the recording. In the recording, Mr. McBreairty can be heard asking the Chair about the "hardcore anal sex" books on the book list. At that point in the School Board meeting, the Chair told him: "This is vulgarity; it is not part of our policy. I'm going to ask you to shut the video off and sit down please."
Mr. McBreairty did not comply, and the Chair repeatedly requested that he sit down. He then told Mr. McBreairty that if he did not sit down, he would be asked to leave the premises. Mr. McBreairty did not sit down, and the Chair then took a recess and asked Mr. McBreairty to leave, which he did. Mr. McBreairty started playing the recording approximately two minutes and ten seconds into his public comment time; the Chair recessed the meeting about forty-five seconds later; and it appears that the meeting resumed (after Mr. McBreairty presumably had left the premises) approximately a minute and ten seconds after that.
This led to the ban, based ostensibly on "Mr. McBreairty's 'repeated and deliberate failure to comply with reasonable School Board policies' and his behavior at the April meeting." But the court preliminarily enjoined the ban, on the grounds that school board public comment periods were "limited public fora" in which any speech restrictions had to be reasonable and viewpoint-neutral. Some excerpts:
[1.] [I]n the December 2021 meeting, Mr. McBreairty spoke about books that he thought were inappropriate for the school library. He then began to read from a book that he believed was "wholesome" and should be in the library. He continued reading for a short time after the Chair warned him that reading from a book was an activity not permitted by the Policy and that he would be asked to sit down if he continued. When the Chair told him that his public comment period was over early because of this purported violation, Mr. McBreairty sat down as instructed.
Nowhere in the Policy does it say that reading a book is not allowed. While Mr. McBreairty's behavior might be perceived as insolent or cheeky, he is not in violation of the written policy. Mr. McBreairty's dramatic reading appears to have been an attempt to make a point. As such, while it may be characterized as an activity, it is also expression that would likely be protected by the First Amendment.
[2.] At the School Board meeting on April 27, 2022, Mr. McBreairty returned to the topic of inappropriate books. He began playing his recorded phone conversation with the Chair about a certain book, and the School Board told him the Policy prohibited the playing of recordings. The Policy contains no such prohibition. And, like reading a book, playing a recording can be a form of protected communication.
The Chair then told Mr. McBreairty to sit down because the language in the recording violated the Policy because it was vulgar. But, as Mr. McBreairty points out, he was trying to make his point that books containing graphic descriptions of anal sex are not appropriate for middle schoolers, and if he had read the actual passage that he was referring to it would have been far more shocking than to state that the book contained "hardcore anal sex." Further, some vulgar speech is protected by the First Amendment. See Cohen v. California (1971) ("Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us."). [Nor was the speech constitutionally unprotected obscenity:] {[I]t appears that Mr. McBreairty's comments to the School Board, though they reference sexual conduct, are not appealing to any prurient interest and are offered to make a political or philosophical point.}
{I note that "First Amendment jurisprudence has acknowledged limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience where the speech is sexually explicit and the audience may include children." Bethel Sch. Dist. No. 403 v. Fraser (1986). That may be the case here, where it appears there were children present for at least some of the School Board meeting prior to Mr. McBreairty's comments or maybe watching the live stream at home. But the record is not sufficiently developed for me to reach that conclusion, and the School Board has not provided any grounds for me to find its restriction here was justified by the School Board's "interest in protecting minors from exposure to vulgar and offensive spoken language."}
[3.] The School Board's briefing also references the disrespect exhibited by Mr. McBreairty in showing off his "Toxic Force" t-shirt, arguing with the Chair about the Policy, and being critical of the Chair. I take the point that reasonable restrictions that allow the School Board Chair to keep order are permissible. {I also acknowledge that having to listen to pointed criticisms by irate parents in real time while being watched by an audience and having to articulate an on-the-spot justification for stopping speakers that the Chair believes may have violated the Policy would not be an easy task for anybody.}
But establishing reasonableness is only half the battle. In order for the School Board "to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."
The evolving, ad hoc, and unsupported reasons offered by the School Board for its restrictions on Mr. McBreairty's speech suggest pretext, and they raise the specter of viewpoint discrimination…. Here, it is hard to shake the sense that the School Board is restricting the speech because the Board disagrees with both Mr. McBreairty's opinions and the unpleasantness that accompanies them.
Finally, the School Board's letter and corresponding trespass notices prohibiting Mr. McBreairty from attending any school-related function on RSU 22 property, including School Board meetings, until December 31, 2022, now operate as a categorical ban to exclude all of Mr. McBreairty's speech on school-related topics at School Board meetings and other RSU 22 events. The reason given for this exclusion was the events at the April meeting and "Mr. McBreairty's repeated and deliberate failure to comply with reasonable School Board policies that have been reasonably applied to Mr. McBreairty over the last several months." But as discussed above, close examination reveals that the violations cited are questionable and perhaps overblown. Despite the School Board's assertion that its ban is not based on Mr. McBreairty's expressed viewpoint, the evidence makes me question that.
[4.] Regardless, whether the School Board's application of its Policy to Mr. McBreairty is in fact a viewpoint-neutral restriction, the eight-month ban on his attendance at any RSU 22 school-related meeting or function fails the reasonableness requirement. There was only one occasion—at the April meeting—where Mr. McBreairty did not comply with the Chair's request to yield his three-minute public comment time and take his seat.
The rest of the time, and even at the April meeting, Mr. McBreairty was using the time allowed to speak on school-related subjects, as he is permitted to do under Maine law and the Policy. And in the videos I watched, other than occasionally speaking over or ignoring the Chair's warnings, he does not raise his voice or become disruptive or disorderly. Yet the School Board's response has been to categorically exclude all of his future school-related speech on school grounds for eight months. Singling out one individual, banning his (perhaps disfavored) speech, and essentially preventing him from engaging in a form of civil discourse that is available to everyone else in RSU 22—is unreasonable.
[5.] {The School Board argues that Mr. McBreairty has access to other platforms via his "considerable media presence." But that does not change the fact that the School Board's ban excludes him from a forum that Maine law designates as the forum in which the School Board hears public comment, and that is the exclusion that is relevant here. It is also significant that the School Board meetings are the one place where School Board members must listen to what Mr. McBreairty and other citizens have to say.}
Critically here, it is the School Board that will bear the burden of justifying its restrictions on speech. At this stage, the decision of which party will ultimately prevail is a close call…. But based on the limited briefing and evidence that I have before me, I conclude that the Plaintiff has a fair likelihood of success on his as-applied challenge that the School Board's restrictions violate his First Amendment right to free speech.
Congratulations to Marc Randazza, Robert J. Morris, and Brett Baber, who represented plaintiff.