Court grants TRO in favor of Shawn McBreairty: “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 …”
Shawn McBreairty has been a thorn in the side of school boards in Maine, vigorously voicing his objections to sexualized and racialized school teaching.
He has appeared on Tucker Carlson show:
And on the Laura Ingraham show:
He has been sued by the Hermon School District for alleged bullying of a teacher, something he denies and as to which he has filed an anti-SLAPP countersuit.
Another District, RSU 22, barred McBreairty from school board meetings and school grounds. McBreairty hired well-known First Amendment lawyer Marc Randazza, and just obtained a Temporarary Restrining Order halting his ban.
From the Order:
Before me is Plaintiff Shawn McBreairty’s motion (ECF No. 4) for a temporary restraining order to enjoin the Defendants, the RSU 22 School Board and its chair, Heath Miller, from banning Mr. McBreairty from entering RSU 22 school property until December 31, 2022. Mr. McBreairty is seeking the temporary restraining order on an emergency basis because he wants to be permitted to attend an upcoming school board meeting on July 20, 2022.1 For the reasons outlined below, the Plaintiff’s motion for a temporary restraining order is GRANTED.
The decision gives much of the background, including the details of several school board meetings at which McBreairty challenged school policies. leading the school board to issue a warning letter to McBreairty. At later meetings, he continued to challenge Board members. In none of these school board meetings was McBreairty alleged to have commited any threat or any conduct requiring law enforcement intervention, until the Board barred him and police prevented him from entering a School Board meeting:
Mr. McBreairty then tried to attend the June 2022 School Board meeting, but when he arrived at the meeting the Hampden Police Department issued him a criminal trespass notice that ordered that he was forbidden to enter all RSU 22 buildings and grounds. Compl. ¶ 46; Compl. Ex. O (ECF No. 3-13). Three weeks later the Hampden Police Department issued a second criminal trespass notice that stated:
“Mr. McBreairty is prohibited 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.” Compl. Ex. P (ECF No. 3-14). This second criminal trespass notice was issued “to correct the overly broad prohibition” in the June notice so that the ban “aligned with the language used in the” Penalty Letter. Decl. of Nicholas Raymond in Supp. of Defs.’ Opp’n ¶ 7 (ECF No. 13-1); see Decl. of Regan Nickels in Supp. of Defs.’ Opp’n ¶¶ 9–14 (ECF No. 13-3).
The Court sided with McBreairty:
As to the first step in the analysis, I find that Mr. McBreairty’s expression of his school-related concerns at the podium during the public comment period of School Board meetings constitutes speech that is protected under the First Amendment….
In its Opposition, the School Board argues that the audio played by Mr. McBreairty contained obscenity. As noted above, Mr. McBreairty can be heard in the audio recording complaining about a book that he said contained “hardcore anal sex.” …. But it 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. As such, I fail to see how they can be considered obscenity ….
Here, Mr. McBreairty’s speech falls easily within the content restrictions of the School Board meeting. At every meeting in the record before me, he constrained his comments to concerns he had with various RSU 22 matters, like the purported teaching of critical race theory, issues with reading lists and books in the school libraries, the handling of complaints by the School Board and RSU 22 administrators, and other school governance issues. Therefore, the School Board’s attempts to limit Mr. McBreairty’s otherwise permissible speech only pass constitutional muster if the restrictions are reasonable and viewpoint neutral….
The evolving, ad hoc, and unsupported18 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….
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….
For the reasons stated above, the Court GRANTS the Plaintiff’s motion for a temporary restraining order. The RSU 22 School Board and Defendant Miller (and anyone acting on their behalf) are temporarily restrained from enforcing the May 4, 2022 letter and subsequent criminal trespass notices that prohibit Shawn McBreairty from entering RSU 22 property or attending RSU 22 school-related meetings and functions. Mr. McBreairty shall be permitted the same access to RSU 22 property and meetings as other members of the public.
This is a big win for parents. School Boards don’t like criticism, and have allies in the powerful teachers unions, the National Association of School Boards, and the federal DOJ.
None of that power can stop a judge from upholding parents’ and citizens’ rights. More lawsuits need to be filed where School Boards violate parents’ rights.DONATE
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