MCBREAIRTY v. MILLER

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

SHAWN MCBREAIRTY, )

)

Plaintiff, )

)

v. ) Docket No. 1:23-cv-00143-NT

)

HEATH MILLER and )

SCHOOL BOARD OF RSU22, )

)

Defendants. )

ORDER ON PLAINTIFF’S EMERGENCY MOTION FOR A TEMPORARY

RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Before me is Plaintiff Shawn McBreairty’s motion (ECF No. 3) for a temporary

restraining order and preliminary injunction to enjoin the Defendants—the RSU 22

School Board (“School Board”) and its chair, Heath Miller—from prohibiting Mr.

McBreairty from public comment and from enforcing the School Board’s Public

Participation Policy. Mr. McBreairty is seeking injunctive relief on an emergency

basis because he intends to criticize RSU 22 employees by name at an upcoming

School Board meeting on April 26, 2023. For the reasons outlined below, the

Plaintiff’s motion for a temporary restraining order and preliminary injunction is

DENIED.

BACKGROUND1

Shawn McBreairty resides in Hampden, a town within Regional School Unit

22 (“RSU 22”). Compl. ¶ 1 (ECF No. 1). RSU 22 is governed by the School Board,

which is chaired by Defendant Heath Miller. Compl. ¶¶ 2–3. The School Board holds

monthly meetings, which are open to the public to attend and are also livestreamed

on RSU 22’s website. Decl. of Heath Miller (“Miller Decl.”) ¶¶ 3–4 (ECF No. 9-1).

RSU 22 has enacted School Board-related policies, as permitted under Maine law,

including a policy identified as “BEDH” and titled “Public Participation in Board

Meetings” (the “Public Participation Policy”).2 Compl. Ex. A (“Public

Participation Policy”) (ECF No. 1-1). In the Public Participation Policy, the School

Board “recognizes its responsibility to conduct the business of the district” and states

that “the primary purpose of [School Board] meeting[s] is for the Board to conduct its

business as charged by the law.” Public Participation Policy 1.

Pursuant to the Public Participation Policy, “[t]he public is invited to attend

Board meetings and will be given limited time to voice opinions or problems.” Public

Participation Policy 1. People who speak at a school board meeting are asked to

1 The following facts are drawn from the verified complaint and exhibits thereto, and the

exhibits submitted with the preliminary injunction briefing. I also have reviewed the videos of the

relevant school board meetings, which are referenced in the briefs and included in shortened form as

exhibits, and which are publicly available online. I also considered the arguments presented at the

April 25, 2023 preliminary injunction hearing.

2 The relevant Maine law states: “A school board shall provide the opportunity for the public to

comment on school and education matters at a school board meeting. Nothing in this subsection

restricts the school board from establishing reasonable standards for the public comment period,

including time limits and conduct standards.” 20-A M.R.S. § 1001(20).

observe several rules of conduct under the Public Participation Policy. At issue in this

case is Rule 2 (the “personnel-matter rule”), which states:

Confidential personnel information will not be shared in a public

session. No complaints or allegations will be allowed at Board meetings

concerning any person employed by the school system or against

particular students. Personnel matters or complaints concerning

student or staff issues will not be considered in a public meeting but will

be referred through established policies and procedures.

Public Participation Policy 1. The referenced “established policies and procedures”

are found in Board Policy KE (the “Public Concerns & Complaints Policy”), which

outlines the escalating process by which citizens may raise “complaints or concerns

regarding any aspect of RSU #22 or an employee thereof.”3 Miller Decl., Ex. E (ECF

No. 9-6). The Public Participation Policy also states that “[a]ll speakers must observe

rules of common etiquette” and “[t]he Chair may interrupt or terminate an

individual’s statement when it is too lengthy, personally directed, abusive, obscene,

or irrelevant.” Public Participation Policy 2.

A speaker who violates any of the Public Participation Policy’s rules “may be

required to leave in order to permit the orderly consideration of the matters for which

the meeting was called.” Public Participation Policy 1. The Chair of the School Board

“is responsible for the orderly conduct of the meeting and shall rule on such matters

as the time to be allowed for public discussion, the appropriateness of the subject

3 Citizens raising concerns under the Public Concerns & Complaints Policy are first “expected

to seek a resolution at the lowest possible level” before appealing to the next level, from staff to

principal to superintendent to the School Board. Decl. of Heath Miller (“Miller Decl.”), Ex. E (ECF

No. 9-6). The Public Concerns & Complaints Policy does not apply to “complaints that concern School

Board actions, operations, or policy. Such complaints should be addressed to the Board Chair.” Miller

Decl., Ex. E

being presented and the suitability of the time for such a presentation.” Public

Participation Policy 1. The Chair “has the authority to stop any presentation that

violates these guidelines or the privacy rights of others,” may ask anyone who

disrupts a School Board meeting to leave, and “may request law enforcement

assistance as necessary to restore order.” Public Participation Policy 1–2.

During the public comment session at a School Board meeting on February 15,

2023, Mr. McBreairty played an audio recording of himself. Compl. ¶ 13.4 In his

recorded statement, he expressed concerns about “how horrific RSU 22 is for . . .

children.” Compl. Ex. C (ECF No. 1-3).5 In the recording, Mr. McBreairty

paraphrased comments that he says he received from two unnamed middle school

students and an unnamed teacher at RSU 22 complaining about the treatment of the

concepts of LGBTQ+ and gender identity in the schools, including what the unnamed

teacher allegedly perceived as the “sexual grooming” of students. Compl. Ex. C. Mr.

McBreairty then twice mentioned an RSU 22 teacher by name, and referred to her as

“groomer, I mean, teacher of the year,” saying that she should be locked up and not

allowed within five hundred feet of a school.6 Compl. Ex. C. At the first mention of

4 Mr. McBreairty opened by stating that he previously won a federal First Amendment lawsuit

against the Chair, “galvanizing my right to say whatever I want about whomever I want in whatever

medium I want.” Compl. Ex. C (ECF No. 1-3). Later, in some verbal sparring with an audience member,

he stated: “The absolute is I can say whatever I want as long as I don’t incite violence or use obscenities.

Anything I want. Anytime. Anywhere.” This is incorrect. “[T]he First Amendment does not guarantee

the right to communicate one’s views at all times and places or in any manner that may be

desired.” Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640, 647 (1981).

5 The full video of the February 15, 2023 meeting is available on the RSU 22 School Board’s

YouTube channel at https://www.youtube.com/watch?v=EZoXb_CIxy4.

6 He also began saying that the named teacher participated in giving out “prizes and incentives

pushed daily during announcements” but the remainder of his recorded statement is inaudible.

the teacher’s name, the Chair warned Mr. McBreairty not to use names, and when

Mr. McBreairty continued playing his recording about the named teacher, the Chair

asked him to sit down and then called for a recess as Mr. McBreairty continued

playing the recording over him. Compl. Ex. C. The full video shows that the School

Board meeting recessed for approximately thirty minutes following Mr. McBreairty’s

statement. During this time, the School Board cut the video feed of the meeting and

contacted the Hampden Police Department, and when the responding police officers

eventually asked Mr. McBreairty to leave, he obliged. Compl. ¶¶ 16–17; Compl. Ex.

D (ECF No. 1-4).

Mr. McBreairty then spoke at the School Board’s March 15, 2023 meeting.

Compl. ¶ 18. In his public comment, he again voiced concerns about specific named

RSU 22 staff members. Compl. ¶ 19. He mentioned two teachers by name and

complained that one teacher displayed “an LGBTQ cult war flag on the classroom

wall” and that the other employee “taught sex” after school to students. Compl. Ex. E

(ECF No. 1-5).7 At the mention of the first teacher by name, the Chair gave Mr.

McBreairty a warning. Compl. ¶ 20. After this warning, Mr. McBreairty spoke

uninterrupted for approximately twenty seconds about issues he had with an after-

school program before he mentioned the second employee by name. Compl. Ex. E. At

that point, the Chair asked Mr. McBreairty to stop speaking and step down, but Mr.

McBreairty continued speaking into the microphone. Compl. Ex. E. Again, the School

7 The full video of the March 15, 2023 meeting is available on the RSU 22 School Board’s

YouTube channel at https://www.youtube.com/watch?v=f_-snd64INc.

Board took a recess, cut the public video broadcast of the meeting, and contacted the

police. Compl. ¶ 21; Compl. Ex. E. During this fifteen-minute recess, McBreairty did

not leave the podium and kept speaking. See Miller Decl., Ex. G (ECF No. 9-8).8

On March 24, 2023, Mr. McBreairty filed his Complaint in this Court, along

with his Emergency Motion for a Temporary Restraining Order and Preliminary

Injunction (“Motion”). Emergency Mot. for a TRO and Prelim. Inj. (“Mot.”) (ECF No.

3). The Complaint alleges that the School Board’s conduct—stopping Mr.

McBreairty’s speech and contacting the police to remove him from RSU 22 school

premises—violates his rights under the U.S. and Maine Constitutions to free speech

and expression and to petition the government. Compl. ¶¶ 22–42. The Defendants

filed an expedited opposition to Mr. McBreairty’s motion for a temporary restraining

order on April 3, 2023. Mem. of Law in Opp’n to Emergency Mot. for a TRO and

Prelim. Inj. of Defs. School Board of Regional School Unit 22 and Heath Miller

(“Opp’n”) (ECF No. 9). The Plaintiff filed a reply on April 6, 2023. Pl.’s Reply in Supp.

of Mot. for a TRO and Prelim. Inj. (“Reply”) (ECF No. 10). Mr. McBreairty has

expressed that he would like to speak at the next School Board meeting, which is

scheduled for April 26, 2023. Mot. 1. On April 25, 2023, I held a hearing on the

Plaintiff’s Motion.

8 As the Chair explained in his declaration, although the public broadcast was stopped, the video

recording of the School Board meeting continued, so I was able to see what occurred during the recess.

See Miller Decl. ¶ 28 (ECF No. 9-1); Miller Decl., Ex. G (ECF No. 9-8). Mr. McBreairty did not

relinquish the podium and instead continued speaking, looked things up on his phone, and engaged in

arguments with other members of the public sitting in the audience. Meanwhile, as Mr. McBreairty

kept talking, most of the members of the School Board vacated the room, and multiple audience

members put on their coats, gathered up their belongings, and presumably left the meeting. The police

eventually arrived and escorted Mr. McBreairty out.

LEGAL STANDARD

“Injunctive relief ‘is an extraordinary and drastic remedy that is never

awarded as of right.’ ” Monga v. Nat’l Endowment for the Arts, 323 F. Supp. 3d 75, 82

(D. Me. 2018) (quoting Peoples Fed. Sav. Bank v. People’s United Bank, 672 F.3d 1,

8–9 (1st Cir. 2012)). “[T]rial courts have wide discretion in making judgments

regarding the appropriateness of” preliminary injunctive relief. Sanchez v. Esso

Standard Oil Co., 572 F.3d 1, 14 (1st Cir. 2009). In deciding whether to issue a

temporary restraining order under Rule 65 of the Federal Rules of Civil Procedure,

courts apply the same four-factor analysis that is used to evaluate a motion for a

preliminary injunction.9 Monga, 323 F. Supp. 3d at 82. For a court to grant injunctive

relief, the court must evaluate:

(1) whether the plaintiff is likely to succeed on the merits, (2) whether

he is likely to suffer irreparable harm in the absence of immediate relief,

(3) the balance of equities, and (4) whether granting the injunction is in

the public interest.

Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist., 969 F.3d 12, 22 (1st Cir. 2020). “In

the First Amendment context, the likelihood of success on the merits is the linchpin

of the preliminary injunction analysis.” Sindicato Puertorriqueño de Trabajadores v.

Fortuño, 699 F.3d 1, 10 (1st Cir. 2012) (per curiam). The School Board “bears the

9 “Generally, the distinction between a temporary restraining order and a preliminary

injunction is that the former can be awarded without notice to the other party and an opportunity to

be heard.” Gladu v. Me. Dep’t of Corr., No. 1:20-cv-00449-JDL, 2022 WL 2255947, at *1 (D. Me. June

23, 2022), R&R adopted, 2022 WL 3212110 (D. Me. Aug. 9, 2022). Here, the opposing party had notice,

an opportunity to respond, and an adversarial hearing was held, so I treat the temporary restraining

order request as now merged with the requested preliminary injunction, and I give the Plaintiff the

benefit of that slightly less stringent standard. Id. (“A temporary restraining order . . . is an even more

exceptional remedy than a preliminary injunction . . . .”).

burden of proving the constitutionality of its actions,” United States v. Playboy Ent.

Grp., Inc., 529 U.S. 803, 816 (2000), and the Plaintiff as the movant shoulders the

burden of establishing that a preliminary injunction should issue.

DISCUSSION

I. The Merits of Plaintiff’s First Amendment Speech Claim10

The First Amendment to the United States Constitution provides that

“Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend.

I. The Fourteenth Amendment extends the First Amendment’s restrictions to the

actions of the states. New York Times Co. v. Sullivan, 376 U.S. 254, 277 (1964). First

Amendment claims proceed in a three-step analysis. First, I must determine whether

the Plaintiff’s activity “is speech protected by the First Amendment.” Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985). If it is, I next “must

identify the nature of the forum” in which the speech occurred “because the extent to

which the Government may limit access depends on whether the forum is public or

nonpublic.” Id. Finally, I “must assess whether the justifications for exclusion from

the relevant forum satisfy the requisite standard.” Id.

Here, the first two steps are easily taken. The Defendants do not dispute that

Mr. McBreairty’s public comments at School Board meetings are protected speech.

10 “Because ‘the Maine Constitution is no less restrictive than the Federal Constitution’ with

respect to the protections it provides for the freedom of speech,” I do not separately analyze the

Plaintiff’s challenge under the Maine Constitution. Cutting v. City of Portland, No. 2:13-cv-359-GZS,

2014 WL 580155, at *4 n.3 (D. Me. Feb. 12, 2014) (quoting State v. Janisczak, 579 A.2d 736, 740 (Me.

1990)), aff’d 802 F.3d 79 (1st Cir. 2015). I also do not address the merits of the Plaintiff’s retaliation

or right-to-petition claims because the Plaintiff did not raise either in his Motion. See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

See City of Madison, Joint Sch. Dist. No. 8 v. Wis. Emp. Rels. Comm’n, 429 U.S. 167,

174–75 (1976) (holding that the First Amendment protects the rights of speakers at

school board meetings that are opened for direct citizen involvement and permit

public participation). Further, the parties agree that the public comment portion of

the School Board meeting is a limited public forum. See Mot. 6; Opp’n 7; see also

McBreairty v. Sch. Bd. of RSU 22, No. 1:22-cv-00206-NT, 2022 WL 2835458, at *8 (D.

Me. July 20, 2022) (“Taken together, [20-A M.R.S. § 1001(20)] and the [Public

Participation] Policy show that the School Board opened up a limited public forum

for the purpose of inviting public comment on school-related matters.”).

A limited public forum is what it sounds like—a forum that has been opened

to the public but is “limited to use by certain groups or dedicated solely to the

discussion of certain subjects.” Christian Legal Soc’y Chapter of the Univ. of Cal.,

Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 679 n.11 (2010) (citation omitted).

A restriction based on subject matter “may be permissible if it preserves the purposes

of that limited forum.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,

830 (1995). But “viewpoint discrimination . . . is presumed impermissible when

directed against speech otherwise within the forum’s limitations.” Id.; see Perry Educ.

Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 46 (1983) (“In addition to time, place,

and manner regulations, the state may reserve the forum for its intended purposes,

communicative or otherwise, as long as the regulation on speech is reasonable and

not an effort to suppress expression merely because public officials oppose

the speaker’s view.”).

Accordingly, the government may restrict expression in a limited public forum

so long as the restriction (a) does “not discriminate against speech on the basis of

viewpoint” and (b) is “reasonable in light of the purpose served by the forum.” Good

News Club v. Milford Cent. Sch., 533 U.S. 98, 106–07 (2001) (internal quotation

marks omitted). But “[t]he government must abstain from regulating speech when

the specific motivating ideology or the opinion or perspective of the speaker is the

rationale for the restriction.” Rosenberger, 515 U.S. at 829. As the First Circuit has

explained:

The essence of viewpoint discrimination is not that the government

incidentally prevents certain viewpoints from being heard in the course

of suppressing certain general topics of speech, rather, it is a

governmental intent to intervene in a way that prefers one particular

viewpoint in speech over other perspectives on the same topic.

Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 82 (1st Cir. 2004). The government

discriminates based on viewpoint only if it “denies access to a speaker solely to

suppress the point of view he espouses.” Id. (quoting Cornelius, 473 U.S. at 806).

A. Facial Challenge to the Public Participation Policy

The Plaintiff alleges that the personnel-matter rule of the Public Participation

Policy is a facially unconstitutional viewpoint-based restriction because it “prohibits

any comments about RSU22 employees or students that the Chair deems is [sic]

negative, while positive speech is permitted.” Compl. ¶ 31.11 At oral argument, the

11 Although the Plaintiff claims this is a facial attack, his reference to prohibited comments “that

the Chair deems . . . negative” undermines that theory and suggests that he is really challenging the

personnel-matter rule as it has been applied by the Chair. Nonetheless, I will review the rule to

determine whether the Plaintiff is likely to succeed on his claim that this section of the Public

Participation Policy is constitutionally infirm on its face.

Plaintiff clarified that he is only challenging the following bolded portions of the

personnel-matter rule:

Confidential personnel information will not be shared in a public

session. No complaints or allegations will be allowed at Board

meetings concerning any person employed by the school system

or against particular students. Personnel matters or complaints

concerning student or staff issues will not be considered in a public

meeting but will be referred through established policies and

procedures.

Public Participation Policy 1 (emphasis added). The Plaintiff challenges these parts

of the personnel-matter rule on the ground that they render the rule viewpoint-based

because it “permits discussion of personnel matters, so long as they are not negative.”

Reply 4.

The problem is that the Plaintiff’s approach takes too myopic a view. “Courts

have a ‘duty to construe statutes, not isolated provisions.’ ” Graham Cnty. Soil &

Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 290 (2010) (quoting

Gustafson v. Alloyd Co., 513 U.S. 561, 568 (1995)). The Plaintiff urges me to look only

at the rule’s references to “complaints,” but that would require treating those phrases

“as islands unto themselves,” Graham Cnty., 559 U.S. at 290, and the court’s “task is

to fit, if possible, all parts into an harmonious whole,” FTC v. Mandel Bros., Inc., 359

U.S. 385, 389 (1959). Here, the personnel-matter rule contains many specifics about

what will not be permitted at a School Board public meeting, like confidential

personnel information12 and complaints and allegations concerning staff members or

students. But, importantly, the personnel matter rule also states: “Personnel matters

12 See 20-A M.R.S. § 6101(2) (listing employee information that must be kept confidential).

or complaints concerning student or staff issues will not be considered in a public

meeting but will be referred through established policies and procedures.” Public

Participation Policy 1 (emphasis added). Therefore, when I read Rule 2 of the Public

Participation Policy as a harmonious whole, it prohibits broader content than just

complaints or negative comments; it prohibits the category of speech that falls under

personnel matters. In other words, “personnel matters” encompasses and subsumes

the more specific references to complaints and allegations, and presumably means all

matters relating to school personnel, regardless of whether they are complimentary

or critical of the RSU 22 employee in question.

Further, under the canon of constitutional avoidance, when a question is raised

about the constitutionality of an ambiguous statute, I must “first ascertain whether

a construction of the statute is fairly possible by which the question may be avoided.”

Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018); see United States v. Booker, 644

F.3d 12, 22 (1st Cir. 2011) (“[T]he doctrine . . . comes into play when there are two

plausible constructions of a statute; the absence of any ambiguity defeats the

constitutional avoidance argument.” (citation and internal quotation marks

omitted)). If a “construction of the statute is fairly possible by which the

[constitutional] question may be avoided,” I should adopt that construction. Jennings,

138 S. Ct. at 842; see also Iancu v. Brunetti, 139 S. Ct. 2294, 2301 (2019) (“Th[e] Court,

of course, may interpret ambiguous statutory language to avoid serious constitutional

doubts.”) (citation and internal quotation marks omitted).

There is no denying that the personnel-matter rule is not a model of clarity.

For example, it contains some ambiguities, inexplicable redundancies, and overlap.

13

Regardless, the personnel-matter rule can be construed in a manner which is

constitutional. How teachers perform their duties can readily be seen as “personnel

matters.” So I read the personnel-matter rule as restricting at a School Board meeting

any discussion—whether complimentary or critical—involving the performance of

named RSU 22 teachers and staff. Under my reading of the rule, members of the

public can still express their pleasure or displeasure with what is happening at the

schools, including what is being taught or not taught, but they cannot call out a

named teacher either for praise or criticism. That sort of feedback concerns the

teacher’s performance as an employee and thus constitutes a comment about a

personnel matter, which must be “referred through established policies and

procedures.” Public Participation Policy 1; see Public Concerns & Complaints Policy.

In support of his position, the Plaintiff cites to a recent case in the Eastern

District of Pennsylvania. The policy at issue in that case permitted the school board’s

presiding officer to terminate public comments deemed “too lengthy, personally

directed, abusive, obscene, or irrelevant.” Marshall v. Amuso, 571 F. Supp. 3d 412,

418 (E.D. Pa. 2021). In applying the policy, the board allowed “positive and

13 For example, the personnel-matter rule first states: “No complaints or allegations will be

allowed at Board meetings concerning any person employed by the school system or against particular

students.” And then in the very next sentence, the rule reiterates: “[C]omplaints concerning student

or staff issues will not be considered in a public meeting . . . .” Public Participation Policy 1.

complimentary personally-directed comments supportive of Board and school

employees” but prohibited “negative, challenging, or critical personally-directed

comments.” Id. at 422. The Marshall court held that this distinction constituted

impermissible viewpoint discrimination. Id. This case is readily distinguishable from

Marshall on its facts, however, because the Marshall court was not construing a

personnel-matter provision like the one at issue here. Further, with respect to the as-

applied challenge involved in Marshall, the school board there was interpreting its

policy to permit praise and prohibit criticism. Here, although the Public Participation

Policy expressly states that critical comments of staff are not allowed, it does not say

that positive comments are permitted. It prohibits public discussion of personnel

matters, and public discussion of “personnel matters” can be construed to cover both

critical and complimentary comments.

For their part, the Defendants argue that the rule is not discriminatory on the

basis of viewpoint because the rule “restricts allegations of wrongdoing, personal

attacks, and criticisms of, on, or against specifically named educators without regard

to the content of that allegation or the speaker’s perspective.” Opp’n 9. They point to

other courts that have held that restrictions prohibiting discussion of personnel

matters during the public comment portion of government meetings are

constitutionally permissible.

In Pollak v. Wilson, No. 22-8017, 2022 WL 17958787 (10th Cir. Dec. 27, 2022),

the Tenth Circuit upheld the district court’s denial of a plaintiff’s motion for a

preliminary injunction based on a similar First Amendment claim. Under the school

board policy at issue, “[p]ersonnel matters are not appropriate topics to be discussed

at regular board meetings.” Id. at *2. When the plaintiff mentioned a school employee

by name during the public comment period, the chair “seized on the mention of [the

employee’s] name as making a comment on a personnel matter, proceeded to shut

down [the plaintiff]’s comment, and had [the plaintiff] removed from the premises.”

Id. at *3 (internal quotation marks omitted). Like Mr. McBreairty, the plaintiff

challenged the constitutionality of the policy both facially and as it was applied to

him, arguing that the school board engaged in viewpoint discrimination because

“favorable comments about school employees were welcome, while unfavorable

speech was a banned ‘personnel matter.’ ” Id. at *4.

The Tenth Circuit held that the personnel-matter restriction was facially

viewpoint neutral because it “prohibits the discussion of a subject—personnel

matters—but does not draw a distinction based on viewpoint.” Id. at *7; see id. at *8

(“[T]he text of the Policy is viewpoint neutral because it forbids discussion of all

personnel matters, regardless of the speakers’ perspective.”). It also concluded that,

in light of the purpose served by board meetings (conducting the official business of

the school district), the policy “reasonably prevents discussion of personnel matters

during the public comment period.” Id. The Tenth Circuit held that the board

“establish[ed] the reasonableness of the Policy’s personnel-matter restriction” given

the purpose of the school board meetings and the board’s stated need to protect

personal information. Id. at *9. Because the school board had shown “the personnel-

matter restriction is viewpoint neutral and reasonable,” the district court “did not

abuse its discretion in concluding that [the plaintiff] had not shown a substantial

likelihood of success on the merits of this claim.” Id. at *11.

Likewise, in Fairchild v. Liberty Independent School District, 597 F.3d 747 (5th

Cir. 2010), the Fifth Circuit found personnel-matter restrictions to be constitutional

under the limited public forum analysis. In that case, the school board policies

“exclude[d] from public discourse certain topics of speech—including individualized

personnel matters—which the Board channels into more effective dispute resolution

arenas, before it hears the matter and resolves it.” Id. at 759. The Fifth Circuit held

that the policies “plainly” were “both viewpoint-neutral and reasonable in light of the

forum’s purpose.” Id. at 760. The court reasoned that there was no evidence that the

school board discriminated “based on the view or identity of a given speaker” because

“[a] speaker may discuss concerns generally (as [the plaintiff] did),” and that the rule

was reasonable because the school board had “a legitimate interest, if not state-law

duty, to protect student and teacher privacy and to avoid naming or shaming as

potential frustration of its conduct of business.” Id. Similarly, in Prestopnik v.

Whelan, 83 F. App’x 363 (2d Cir. 2003), the Second Circuit affirmed a district court’s

finding that a teacher’s First Amendment rights had not been violated by a school

board’s refusal to allow her to speak, through counsel, about her tenure issue during

the public comment portion of a meeting. The school board policy in that case

“explicitly exclude[d] speech about specific personnel decisions” and the plaintiff had

not shown that the policies “either were not viewpoint neutral or were unreasonable.”

Id. at 365.

Here, I find that the Defendants have met their burden of demonstrating that

the personnel-matter rule contained in the Public Participation Policy is likely to be

found constitutional on its face. Although, as noted above, the rule could have been

better written, it expressly prohibits discussion of any personnel matters during the

public comment portion of the RSU 22 School Board meetings. I find the decisions of

the Courts of Appeals to be persuasive and agree that “personnel matters” is likely a

viewpoint-neutral restriction because it does not take into account the speaker’s view

but instead prohibits all personnel-related comments, whether positive or negative.14

14 Even if I were to read the personnel-matter rule more narrowly and analyze only the

restriction against raising “complaints or allegations” about school staff or students, the rule is likely

still constitutional. In Ridley v. Massachusetts Bay Transportation Authority, 390 F.3d 65, 91 (1st Cir.

2004, the First Circuit upheld an MBTA regulation that governed the type of advertising that would

be allowed in buses and subway cars and “prohibit[ed] the use of advertisements that ‘demean or

disparage an individual or group of individuals,’ without listing any particular protected groups . . . .”

The First Circuit stated “the guideline is just a ground rule: there is no viewpoint discrimination in

the guideline because the state is not attempting to give one group an advantage over another in the

marketplace of ideas.” Id. It explained that, although “[s]ome kinds of content (demeaning and

disparaging remarks) are being disfavored, . . . no viewpoint is being preferred over another” because

“[a]ll advertisers on all sides of all questions are allowed to positively promote their own perspective

and even to criticize other positions so long as they do not use demeaning speech in their attacks.” Id.

So too here. Mr. McBreairty and other critical speakers are free to promote their perspectives and to

complain about the positions taken by RSU employees so long as they do not identify individuals in

their attacks. “Reasonable ground rules, so long as they are not intended to give one side an advantage

over another, can be set without falling prey to viewpoint discrimination.” Id. at 91–92.

One wrinkle is that the First Circuit decided Ridley before the Supreme Court’s decisions in

Matal v. Tam, 582 U.S. 218 (2017) and Iancu v. Brunetti, 139 S. Ct. 2294 (2019). But those cases—

both involving trademark applications—are distinguishable. In Tam the Court analyzed a provision

of the Lanham Act that prohibited the registration of trademarks that may “disparage persons . . . or

bring them into contempt or disrepute” and held that the provision was facially unconstitutional

because “[i]t offends a bedrock First Amendment principle: Speech may not be banned on the ground

that it expresses ideas that offend.” 582 U.S. at 223, 227. “Giving offense is a viewpoint,” so denying

registration to any mark that offends a particular group “is viewpoint discrimination.” Id. at 243.

Similarly, in Brunetti, the Court held that another Lanham Act provision, this one prohibiting the

registration of “immoral or scandalous” trademarks, violated the First Amendment for the same

reason, that it “disfavors certain ideas.” 139 S. Ct. at 2297. The Brunetti Court explained that the

statute was viewpoint-based, not viewpoint neutral, on its face, because it “distinguishes between two

opposing sets of ideas” and favors “those aligned with conventional moral standards and . . . those

inducing societal nods of approval” while disfavoring those hostile to them[ ] and those provoking

offense and condemnation. Id. at 2299–2300. The personnel-matter rule challenged by Mr. McBreairty,

however, does not on its face prohibit comments that give offense, or permit praise while disallowing

complaint. Here, unlike in these two trademark cases, the offensive ideas themselves are not banned,

I also find that the restriction is likely to be found reasonable. The primary

purpose of the School Board meetings is for the School Board to conduct the business

of the school district. Permitting anyone with a comment about a particular

individual at the school to voice it at a School Board meeting “could derail the agenda

for the meeting and risk unnecessary disclosure of private information about

employees or students.” Fairchild, 597 F.3d at 760.15 Further, alternative channels

for such speech are available. Mr. McBreairty could voice his displeasure—as he has

done repeatedly—without naming specific individual employees. Or he could raise his

concerns about individuals under RSU 22’s Public Concerns & Complaints Policy,

which provides the process for such grievances. As the Fifth Circuit put it, that

“leaves the public ample opportunity to be heard—just not here and now.” Id.16

only the connecting of those complaints to “any person employed by the school system or . . . particular

students.” Public Participation Policy 1. In addition, when asked to distinguish Tam and Brunetti at

oral argument, counsel for the Defendants pointed out that both cases involved trademark

registrations, not singling out people at a school board meeting. A school board meeting is a limited

public forum, and the First Amendment must be understood in the context of the forum at issue. See,

e.g., Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799–800 (1985) (explaining that

“[n]othing in the Constitution requires the Government freely to grant access to all who wish to

exercise their right to free speech on every type of Government property without regard to the nature

of the property or to the disruption that might be caused by the speaker's activities” and “the extent

to which the Government can control access depends on the nature of the relevant forum”). Therefore,

the personnel-matter rule is likely viewpoint neutral.

15 That sort of derailing is what occurred in February and March when the Board had to take

recesses totaling forty-five minutes before resuming its agenda when Mr. McBreairty broke the rules

during those two meetings.

16 Before leaving the Plaintiff’s facial challenge, two additional points bear mentioning. First, in

his Complaint, the Plaintiff alleges that the personnel-matter rule is unconstitutionally vague, Compl.

¶ 30 (ECF No. 1), but then neglects to raise any vagueness argument again until his reply brief, see

Reply 5–6. “But, arguments developed for the first time in a reply brief are waived.” Small Just. LLC

v. Xcentric Ventures LLC, 873 F.3d 313, 323 n.11 (1st Cir. 2017). Second, the Defendants suggest that

the Plaintiff’s viewpoint-discrimination argument will soon be mooted because the Public Participation

Policy has been amended “to make crystal clear that the restriction on comments relating to ‘personnel

matters’ prohibits any public comments related to named RSU 22 employees,” and the amended policy

is expected to be adopted by the School Board in May. But in considering the Plaintiff’s Motion, I am

concerned with the version of the Public Participation Policy that is currently in force and that will be

B. As-Applied Free Speech Claim

The Plaintiff alleges that the personnel-matter rule of the Public Participation

Policy has been unconstitutionally applied to Mr. McBreairty because other members

of the public are permitted to address their opinions about teachers but Mr.

McBreairty has been silenced and ordered to leave. Compl. ¶ 32. He also suggests

that the personnel-matter rule “seems to only be used to stop criticism” and thus it

has not been applied in a viewpoint-neutral way. Mot. 12 n.2. The Defendants counter

that Mr. McBreairty’s speech was not interrupted based on his viewpoint, but because

he named individual school personnel. Opp’n 17.

In an as-applied challenge, I must consider the constitutionality of a statute as

it was “applied in a particular instance.” Reno v. Flores, 507 U.S. 292, 300 (1993). The

constitutional test I use is the same for this as-applied challenge as it is for the facial

challenge—the School Board must apply the personnel-matter rule in a way that is

both viewpoint neutral and reasonable. Here, the Chair stopped Mr. McBreairty’s

public remarks and had him removed from the School Board meetings in February

and in March. I have watched the entire public comment portion of both meetings. At

the beginning of each meeting, the Chair read out the ground rules for public

comment. During the public comment period of the February meeting, three speakers

(including Mr. McBreairty) addressed the School Board. The other two speakers

raised concerns similar to those voiced by Mr. McBreairty, about the school allegedly

enforced at the upcoming April meeting. Therefore, the anticipated amended policy plays no role at

this preliminary injunction stage of the litigation, and I need not determine if or how the voluntary-

cessation doctrine applies to the ultimate merits of the Plaintiff’s claims in this case.

“pushing” certain sexual ideologies, hypersexualizing children, encouraging students

to question gender identities, and teaching material the speakers did not agree with.

Only Mr. McBreairty was interrupted and removed from the meeting, but only Mr.

McBreairty broke the School Board’s personnel-matter rule and named a specific

RSU 22 teacher. Neither of the other two speakers identified RSU 22 personnel by

name, and they were allowed to give their full statements, which closely matched the

viewpoint that Mr. McBreairty expressed. The School Board even thanked one

speaker, a legislative representative for some of the towns within the RSU 22 school

district, for her service as representative. Mr. McBreairty himself was allowed to fully

express his opinion, criticizing RSU 22, until he mentioned the RSU 22 employee by

name thereby violating the personnel-matter rule, and even then, he was given one

verbal warning by the Chair before he was asked to stop speaking.

Similarly, at the March meeting, there were three additional speakers during

the public comment portion. Two of three speakers again espoused views like Mr.

McBreairty’s, discussing their alleged concerns about sexual predators being in the

schools, RSU 22 promoting books with sexual content, students being exposed to

suggestive ideology about their gender identities, and the schools waging an assault

on parental rights. Neither of these public commenters identified any RSU 22 staff

or students by name so they were permitted to fully voice their opinions.17 Mr.

McBreairty expressed displeasure with the School Board and its members, and he

17 The third additional speaker did not share these views, but he too refrained from naming any

names and thus was allowed to speak.

was allowed to complain about their past actions and to criticize the Chair. He also

was permitted to voice his disagreement with the books in the library, the RSU 22

strategic plan, the current superintendent, students’ math scores, a flag hanging on

a classroom wall, certain afterschool programming he disliked, a national

organization of so-called “groomers,” and students being able to discuss sex during

extracurriculars. It was only when he mentioned a teacher by name that he was

interrupted with a warning, and it was only when he named a second RSU 22

employee that the Chair cut off Mr. McBreairty’s time at the podium and took a

recess. Contrary to Mr. McBreairty’s contention, the record unequivocally reveals

that he was not shut down because of his viewpoint. He was shut down because he—

unlike any of the other speakers—could not follow the School Board’s rules for public

comment. As the Plaintiff admits in his Motion, “[t]he moment Mr. McBreairty

uttered an employee’s name, [Chair] Miller immediately interrupted him.” Mot. 11;

see also Mot. 10 (“McBreairty was stopped by Defendants from speaking for even

mentioning the name of an employee, even prior to uttering any criticism.”). So it was

McBreairty’s repeated use of employees’ names in violation of the rule, not his

viewpoint, that prompted the Chair’s actions. See Moms for Liberty – Brevard Cnty.,

582 F. Supp. 3d 1214, 1220 (M.D. Fla. 2022) (upholding a similar policy that was “was

evenhandedly applied as a whole” where the Chair let commenters “purportedly

disaligned with her view speak uninterrupted when they followed the policy”), aff’d,

2022 WL 17091924 (11th Cir. Nov. 21, 2022).

There is only one example in the record that arguably shows a speaker

violating the personnel-matter rule and being treated differently than Mr.

McBreairty. During the October 2022 School Board meeting, the program director for

Educate Maine, which conducts the Maine Teacher of the Year program, recognized

that an RSU 22 employee had received the award. She “provided an assessment of

[the named teacher]’s services as the 2022 Maine Teacher of the Year, including

referring to her as ‘thoughtful,’ ‘intentional,’ ‘brave,’ and ‘brilliant.’ ” Compl. ¶ 10.18

According to the Plaintiff, this proves that the School Board engages in viewpoint

discrimination because it permits praise of teachers but prohibits criticism. Reply 2.

But the October meeting does not help the Plaintiff for several reasons.

First, in the fall of 2022, the Public Participation Policy was applied to Mr.

McBreairty in the same way it was applied to the Educate Maine speaker and others.

Specifically, at the September 2022 meeting, at which Mr. McBreairty and three

other speakers shared comments, Mr. McBreairty named several RSU 22 school

counselors and one teacher by name. Miller Decl., Ex. F (ECF No. 9-7). The Chair did

not interrupt him. Further, the Chair did not realize until several months later that

the policy prevented positive feedback relating to personnel matters just as it

prohibited complaints. Miller Decl. ¶¶ 17–20. Since then, the record reflects that he

continued to apply the personnel-matter rule in an even-handed, non-viewpoint-

18 In the video of the October 2022 meeting, the Educate Maine director also told the School

Board that, during the RSU teacher’s reign as 2022 Maine Teacher of the Year, the organization

“feared for her safety” so much that “at every public-facing event” the organization “had police or

security present because ill-intentioned people made ludicrous accusations about her” and they did

not know “if these preposterous claims would spur someone to harm her.”

discriminatory way, now cutting off speakers at the mention of identified RSU 22

personnel. And the fact that the Chair may have mistakenly permitted the identified-

by-name Teacher of the Year comments at one meeting in 2022 does not mean that

he had to also allow Mr. McBreairty to name teachers at the February and March

2023 meetings. See Ridley, 390 F.3d at 92 (noting that even if the transportation

authority “made a mistake under its guidelines” by accepting two earlier ads, that

“does not mean it was required to accept the third ad”).

In addition, the Public Participation Policy contains more than just the

personnel-matter rule. It also provides that “[t]he Chair may interrupt or terminate

an individual’s statement when it is too lengthy, personally directed, abusive,

obscene, or irrelevant.” Public Participation Policy 2 (emphasis added). The Chair

never specifies which provision—the personnel-matter rule or the “personally

directed” rule—he was relying on when he told Mr. McBreairty he could not name

individual staff members. A nearly identical policy provision was at issue in a recent

district court case out of Florida. See Moms for Liberty, 582 F. Supp. 3d at 1217. In

that case, the plaintiffs sought a preliminary injunction based on the school board’s

policy, which they alleged was unconstitutional facially and as applied. Id. at 1218.

The court found that the policy, which allowed the chair to interrupt speech when it

is “too lengthy, personally directed, abusive, obscene, or irrelevant,” was viewpoint

neutral on its face and was “critical to prevent disruption, preserve reasonable

decorum, and facilitate an orderly meeting.” Id. at 1219 (internal quotation marks

omitted). The record in that case also showed that the policy “was evenhandedly

applied” and the chair let commenters “purportedly disaligned with her view speak

uninterrupted when they followed the policy.” Id. at 1220. Further, the court

determined that one noncompliant speaker was “permissibly excluded” because his

speech was “abusive and disruptive” and he refused to stop speaking after being

warned by the chair that he was “pushing the limit.” Id. On appeal, the Eleventh

Circuit affirmed “the district court’s thorough, well-reasoned order.” Moms for Liberty

– Brevard Cnty. v. Brevard Pub. Schs., No. 22-10297, 2022 WL 17091924, at *1 (11th

Cir. Nov. 21, 2022).

Here, in Mr. McBreairty’s case, the Chair interrupted Mr. McBreairty only

when he personally directed his comments to specific named employees. The Chair

reviewed the rules of the Public Participation Policy at the meetings before opening

up the public comment sessions, and he warned Mr. McBreairty specifically on both

the February and March occasions to refrain from using names. Both times, Mr.

McBreairty ignored the Chair’s warning and continued speaking about named

individuals. And it was only because Mr. McBreairty continued speaking and refused

to sit down that the School Board recessed, asked him to leave, and called the police.

Based on my review of the videos of the February and March School Board meetings,

it appears that Mr. McBreairty was willfully disobeying the rules of the Public

Participation Policy. On both occasions he had preplanned what he was going to say;

in February he played a previously recorded statement from his phone and in March

he read from a written statement. So he did not inadvertently slip up at the podium

by mentioning those staff members by name. Further, according to his Motion, he

plans to criticize RSU 22 employees by name again at the next meeting. Mot. 1. This

type of personally directed speech is expressly prohibited under the Public

Participation Policy, and the Chair applied the policy in an evenhanded viewpoint-

neutral way. He allowed Mr. McBreairty to criticize staff members anonymously and

only interrupted Mr. McBreairty’s critiques when he mentioned names. Yet he

permitted other members of the public, who seemingly shared Mr. McBreairty’s

general negative views of the goings-on at RSU 22 schools, to speak because they

followed the rules. It is clear from the record that the School Board is not suppressing

Mr. McBreairty’s speech, which he was free to publicly share within the confines of

the Public Participation Policy, based on his viewpoint.

I also find that the way the School Board applied the policy was reasonable. As

noted above, RSU 22’s School Board meetings are primarily held to allow the Board

to conduct the business of the school district “in an orderly and efficient manner.”

Public Participation Policy 1. Although the Public Participation Policy invites

members of the public to attend and to voice their opinions, the public comment

period is not the main focus of the School Board’s business during its meetings. The

restriction placed on Mr. McBreairty (and all public speakers) permits complaints

and criticisms of RSU 22 and its employees generally, as long as individual personnel

are not identified in these public comments. During the February and March

meetings, the Chair stayed within the bounds of the policy and did not interrupt Mr.

McBreairty’s speech until he identified RSU 22 employees by name. See Davison v.

Rose, 19 F.4th 626, 636 (4th Cir. 2021) (“[D]enying a speaker at the podium in a . . .

hearing the right to launch personal attacks does not interfere with what that

speaker could say without employing such attacks.” (quoting Steinburg v. Chesterfield

Cnty. Planning Comm’n, 527 F.23d 377, 387 (4th Cir. 2008))). Even then, he was first

given warnings that he was not to name individuals. It was only when Mr.

McBreairty crossed the line and became disruptive—not following the personnel-

matter rule, both written and as announced orally by the Chair at the start of the

meeting, and leveling personally directed attacks at RSU 22 employees; not heeding

the Chair’s warning during Mr. McBreairty’s comments to not use names and

continuing to name individuals over the Chair’s admonishment; not obeying the

direction of the Chair when he told Mr. McBreairty to stop speaking and sit down—

that Mr. McBreairty was asked to leave. Because Mr. McBreairty disrupted the

ability of the School Board to conduct its meeting in an orderly and efficient way, the

Chair’s response under the policy was reasonable, particularly in light of the School

Board’s statutory obligation to ensure the safety of its employees and to protect their

personal information.

For all these reasons, I find that the Plaintiff is unlikely to succeed on the

merits of his constitutional challenge to the personnel-matter rule and the way in

which the School Board applied the Public Participation Policy to Mr. McBreairty.

II. Remaining Factors

Likelihood of success, which the Plaintiff here lacks, “is the main bearing wall

of th[e preliminary injunction] framework.” W Holding Co. v. AIG Ins. Co.-P.R., 748

F.3d 377, 383 (1st Cir. 2014). “[I]f the moving party cannot demonstrate that he is

likely to succeed in his quest, the remaining factors become matters of idle

curiosity.” Esso Standard Oil Co. (P.R.) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir.

2006). I will not dwell on the other factors, but they are worth mentioning.

A. Irreparable Harm

Irreparable harm is measured on “a sliding scale, working in conjunction with

a moving party’s likelihood of success on the merits, such that the strength of the

showing necessary on irreparable harm depends in part on the degree of likelihood of

success shown.” Braintree Lab’ys, Inc. v. Citigroup Glob. Mkts. Inc., 622 F.3d 36, 42–

43 (1st Cir. 2010) (internal citation and quotation marks omitted). Although “the loss

of First Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury,” Fortuño, 699 F.3d at 10–11 (quoting Elrod v. Burns,

427 U.S. 347, 373 (1976)), here I have found that the Plaintiff is unlikely to succeed

on the merits of his First Amendment claims. Further, the Plaintiff’s alleged harm

absent injunctive relief—his inability to criticize named RSU 22 staff at School Board

meetings—is mitigated because Mr. McBreairty is free either to continue to voice his

concerns at School Board meetings in accordance with the Public Participation Policy

(i.e., speak his piece but refrain from identifying individuals) or to lodge his

personally directed complaints in accordance with the Public Concerns & Complaints

Policy (i.e., critique the named employee in that forum and seek resolution from

school staff before appealing to the principal, superintendent, and School Board).19

19 It bears mention that, rather than seeking run-of-the-mill injunctive relief to preserve the

status quo until the merits are resolved, the Plaintiff here seeks to change the current state of affairs.

He is asking me to force the School Board to effectively change its policy as he wants, to allow him to

criticize teachers by name during public comment at meetings, which is not permitted now. “Because

a mandatory preliminary injunction alters rather than preserves the status quo, it normally should be

granted only in those circumstances when the exigencies of the situation demand such relief.” Atl.

Salmon Fed’n U.S. v. Merimil Ltd. P’ship, No. 1:21-cv-00257-JDL, 2022 WL 558358, at *4 (D. Me. Feb.

B. Balance of Harms and Public Interest

As to the balance-of-harms inquiry, that too favors the Defendants. I balance

the minimal viewpoint-neutral and reasonable interference with Mr. McBreairty’s

right to unfettered free speech—outlined above—against the harm the School Board

will suffer if an injunction is granted. As I have previously observed, there is no

question that the School Board’s interest—conducting the orderly and undisrupted

business of the School Board, governing RSU 22’s public school system—is

significant. In addition, the Defendants point to their interest, and statutory

obligation, in protecting RSU 22’s employees from harassment and bullying and in

shielding RSU 22 from potential defamation claims. Meanwhile, the Plaintiff can still

say whatever he wants about the schools and what is being taught; he just cannot

name individuals in this forum and instead has to provide such comments through

the forum established by the Public Concerns & Complaints Policy. The balance-of-

harms factor thus strongly favors the Defendants.

As to the public interest, on the one hand, “[p]rotecting rights to free speech is

ipso facto in the interest of the general public.” Cutting v. City of Portland, No. 2:13-

cv-359-GZS, 2014 WL 580155, at *10 (D. Me. Feb. 12, 2014) (internal quotation marks

omitted), aff’d, 802 F.3d 79 (1st Cir. 2015). But on the other hand, “the First

Amendment does not require endless public commentary,” the Maine Legislature has

24, 2022) (quoting Man Against Xtinction v. Comm’r of Me. Dep’t of Marine Res., 478 F. Supp. 3d 67,

71 (D. Me. 2020)). “Nevertheless, those exigencies should still be measured according to the same four-

factor test, as the focus always must be on prevention of injury by a proper order, not merely on

preservation of the status quo.” Braintree Lab’ys, Inc. v. Citigroup Glob. Mkts. Inc., 622 F.3d 36, 41

(1st Cir. 2010) (internal quotation marks omitted).

established there is a substantial public interest in keeping RSU 22’s educators safe,

and “there is a significant public interest in the School Board conducting orderly

public business.” Moms for Liberty, 582 F. Supp. 3d at 1221 n.13. Granting the

Plaintiff his requested injunctive relief would frustrate these public interests. Indeed,

the public has already suffered from Mr. McBreairty’s behavior at meetings. When

Mr. McBreairty refused to cede the floor at the last meeting, School Board members

were left no choice but to temporarily abandon the business of the meeting. In

addition, public audience members (who presumably attended that meeting to

observe the School Board conduct its business) put on their coats and left rather than

wait out Mr. McBreairty’s removal, and at-home viewers likewise could have tuned

out and not returned to the interrupted broadcast. Therefore, I find that denying the

preliminary injunction is in the public interest.

CONCLUSION

For the reasons stated above, the Court DENIES the Plaintiff’s motion for a

temporary restraining order and preliminary injunction.

SO ORDERED.

/s/ Nancy Torresen

United States District Judge

Dated this 26th day of April, 2023.