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McBreairty v. School Board of RSU22, et al., No. 1:22-cv-00206-NT (D. Maine).  Order granting temporary restraining order entered July 20, 2022. 

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Public Schools, Public Participation.  Public schools in Maine are managed through town participation in Regional School Units, here RSU22.  The public is invited to participate in school decision making through time set aside for public comment at town school board meetings.  That public participation is governed by guidance requiring common etiquette and forbidding speech in excess of three minutes, gossip, complaints about individuals, defamation, and vulgarity.

Violation of these policies may result in removal from the meeting. 

Trouble in RSU22. Beginning in the autumn of 2021, and continuing until early May, 2022, parent and Hamden town resident Shawn McBreairty spoke at meetings about his concern that school library materials included sexual material not appropriate for students.

At times McBreairty was said to exceed three minutes’ speech, on one occasion he made a brash accusation, and he was criticized for playing a recording describing a sexual act that gave rise to his concerns.

In May, 2022, the school board wrote to McBreairty’s counsel, providing notice that McBreairty was suspended from attending further school board meetings for eight months.  Upon arrival at a June, 2022 board meeting, McBreairty was precluded from attending, and was issued a criminal trespass notice forbidding his attendance at RSU22 school functions, whether in person or online.

McBreairty sued the school board in federal court alleging violation of his First Amendment rights and demanding immediate injunctive relief.

Injunctive Relief and the First Amendment.  Courts cannot compel action or restraint from action before trial unless a complainant can demonstrate a likelihood of success on the merits of his case, that irreparable harm would result if injunctive relief were not granted, that the balance of equities favors relief, and that the public interest would be served by relief.  

Irreparable harm is presumed when speech is restricted.  

Obscene speech is not protected by the First Amendment.  Here, however, the court found that McBreairty’s reference to a sexual act lacked prurience and was not, in the context, without merit.  Thus the speech found objectionable by the school board was nonetheless protected by the First Amendment.

Foraging through Forum Analysis.  The government must establish the constitutionality of any speech restrictions the government imposes.  Review considers the places where speech will occur and the purposes of any gathering.  “Forum analysis,” which proceeds from great liberality in speech to some restrictions upon speech, while superficially appealing, is nonetheless not infrequently something of a bog.

The federal court in Maine has provided a primer describing the degrees and kind of government restrictions that are n .  Traditional public forums, such as parks, streets, or other places historically used for public communications, are free from regulation except where a government can demonstrate that any restriction is neutral and narrowly tailored to a compelling government interest. While time, place and manner restraints may be imposed, alternative communication channels must exist.  

Where a government has designated that a space be open to the public, the same rules as for traditional public forums apply. 

Limited public forums are open to certain groups or for certain topics, and speech may be restricted provided no permissible speech is restricted on the basis of viewpoint and that any restriction is reasonable in light of a forum’s purpose.  

Nonpublic government property not traditionally or by designation used for public conversations may be subjected to speech restrictions provided that the goal of any restriction is not the suppression of disfavored speech.  

Looking to Other Court’s Conclusions in the Absence of Controlling Precedent.  Neither the U.S. Supreme Court of the U.S. Court of Appeals for the First Circuit has decided what sort of forum a school board meeting is, suggesting that the court might look to the determinations of other courts, most of which have found that school meetings are limited public forums.  

The court rejected McBreairty’s argument that school boards are traditional public forums subject to only the most narrow government restrictions.  School boards meet for particular purposes to discuss particular topics:  as such, school boards may reasonably impose order on those proceedings.    

As a limited public forum, a school board may regulate access in light of the forum’s purposes but the state may not unreasonably exclude speech based on viewpoint.  

Distinguishing between content and viewpoint based restrictions allows a governing body to restrict speech as it relates to the purpose of the forum while forbidding excluding points of view on matters that are otherwise related to a forum’s purpose.  

There May Be Some Discomfort.  The court found McBreairty’s public comments concerned the school.  Even if at times unorthodox or provocative, the court perceived that in the main McBreairty did not violate school board policy, although he did do so by referencing school personnel and exceeding time limits in speaking to the board.  

While the warning letter issued to McBreairty might have carried the potential to chill speech, as McBreairty appeared undeterred as a matter of fact, that issue is not central to the decision. 

Having rejected the idea that McBreairty’s speech was obscene, the court pointed with concern toward what appeared to be an ad hoc and cumulative approach to McBreairty’s appearances before the board.  Any discomfort experienced by the board cannot justify restricting protected speech.

This Long is Too Long.  Even if viewpoint discrimination were not conclusively established, an eight month ban on McBreairty’s presence at school board meetings is unreasonable, the court found.  

Injunctive Relief Awarded.  The court found that there is a likelihood that McBreairty will prevail on his as-applied First Amendment challenge and ordered the school to refrain from enforcing the penalties contained in its letter and in the trespass notice.  While the school board has an interest in the orderliness of its meetings, that does not require months-long forfeiture of First Amendment speech rights.

McBreairty v. School Board of RSU22, No. 22-cv-00206 (D. Maine). Order granting TRO July 20, 2022