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 SECOND

MOTION FOR A PRELIMINARY INJUNCTION

Before me is Plaintiff Shawn McBreairty’s second motion (ECF No. 39) for a

preliminary injunction to enjoin the Defendants—the RSU 22 School Board (“School

Board”) and its chair, Heath Miller—from prohibiting McBreairty from public

comment and from enforcing the School Board’s revised Public Participation Policy.

McBreairty is seeking expedited injunctive relief because he intends to criticize RSU

22 employees by name at an upcoming School Board meeting. For the reasons

outlined below, the Plaintiff’s motion for a preliminary injunction is DENIED.

BACKGROUND1

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

22 (“RSU 22”). First Am. Verified Compl. 42 U.S.C. § 1983 Compl. for Declaratory,

Injunctive Relief and Damages (“Am. Compl.”) ¶¶ 1, 3 (ECF No. 34). RSU 22 is

1 The following facts are drawn from the verified complaint (ECF No. 1) and the amended

verified complaint and its exhibits (ECF No. 34), and the declarations and exhibits submitted with the

2023 and 2024 preliminary injunction briefing.

governed by the School Board, which is chaired by Defendant Heath Miller (the

“Board Chair”). Am. Compl. ¶¶ 2–3. Under Maine law: “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). In accordance with this Maine law, 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). As permitted under 20-A M.R.S. § 1001(20), RSU 22 has enacted

School Board-related policies, including a policy identified as “BEDH” and titled

“Public Participation in Board Meetings” (the “Policy”).2 Am. Compl. Ex. F (ECF No.

34-6). The Policy states that “[t]he primary purpose of School Board meetings is to

conduct the business of the Board related to Board policies, programs, and

operations.” Policy 1.

Pursuant to the Policy, the School Board “recognizes the value of public

comments on school and educational matters” and invites members of the public to

“speak[ ] during the designated public comment portion of the agenda at Board

2 Since McBreairty filed his original complaint in March of 2023, the School Board has revised

its Public Participation Policy. The former version contained the following 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.

Am. Compl. Ex. A (ECF No. 34-1). The Plaintiff includes the old policy in his amended complaint and

continues to make arguments about the now-defunct rule. Unless otherwise indicated, when I refer to

the Policy, I am referring to the version now in effect, the “BEDH Public Participation Policy Revised

June 16, 2023.” Am. Compl. Ex. F (ECF No. 34-6).

meetings” and “to submit written comments on school and educational matters to the

Board and Superintendent.” Policy 1. The Policy sets forth general requirements for

public comments during meetings, including seven rules of order. Policy 1–2. In his

amended complaint, McBreairty takes issue with three of those rules of order, Rule

3(b), Rule 3(c), and Rule 3(d).

In relevant part, Rule 3 states:

b. Speakers are expected to follow rules of common etiquette and

decorum and refrain from engaging in disruptive conduct, including, but

not limited to using vulgar and/or obscene language, yelling,

threatening others using words or by other actions, making defamatory

comments, exceeding the allotted time limits, talking over or

interrupting others, offering repetitive comments, and offering comment

on matters unrelated to the school unit’s programs, policies, or

operations.

c. Discussion of personnel matters is not permitted during the public

comment period due to the privacy, confidentiality and due process

rights of school unit employees. For purposes of this policy, “discussion

of a personnel matter” means any discussion, whether positive or

negative, of job performance or conduct of a school unit employee.

d. Discussion of matters involving individual students are also not

permitted during the public comment period due to the privacy,

confidentiality, and due process rights of the school unit’s students.

Policy 1–2. The Policy further provides that “[a]ny concerns about personnel matters

and/or student matters should be directed to the Superintendent or another

appropriate administrator outside of Board meetings so that they can be addressed

through an alternative channel and in a manner consistent with privacy,

confidentiality, and due process rights of the individuals involved.” Policy 2. The

Board Chair is tasked with ensuring the orderly conduct of School Board meetings

and compliance with the Policy, including the above rules of order. Policy 1. He “will

stop any public comment that is contrary to these rules” and “may request the

assistance of law enforcement if necessary to address disruptions or safety concerns.”

Policy 2. The Policy warns that “[i]ndividuals who disrupt a Board meeting may be

asked to leave in order to allow the Board to conduct its business in an orderly

manner.” Policy 2.

At two School Board meetings in February and March of 2023—under the prior

public participation policy—the Board Chair warned McBreairty that he was

violating the policy then in effect, and, when McBreairty continued speaking, the

Board Chair eventually contacted law enforcement to escort McBreairty out. Am.

Compl. ¶¶ 16–19, 23, 25–26. In March of 2023, McBreairty filed his complaint in this

Court, along with an emergency motion for a temporary restraining order and

preliminary injunction, expressing that he wanted to speak at the April 2023 School

Board meeting. Emergency Mot. for TRO and Prelim. Inj. 1 (ECF No. 3).

Following expedited briefing and a hearing, I denied McBreairty’s motion.

Order (ECF No. 17); McBreairty v. Miller, No. 1:23-cv-00143-NT, 2023 WL 3096787

(D. Me. Apr. 26, 2023). He appealed the order to the First Circuit, which held that

the record failed to show that McBreairty had standing to seek injunctive relief

because he had not made the requisite showing that he intended to engage in the

speech at issue at a future School Board meeting. McBreairty v. Miller, 93 F.4th 513,

518, 521 (1st Cir. 2024).

Meanwhile, on June 16, 2023, while the case was on appeal, the School Board

amended its public participation policy to the Policy quoted above. See Am. Compl.

¶ 31 & Ex. F. The Defendants aver that the decision to change the Policy was set in

motion in the winter of 2023, before McBreairty filed this lawsuit, and was not

motivated by his allegations. Suppl. Decl. of Heath Miller (“Miller Suppl. Decl.”)

¶ 2 (ECF No. 42-1). The School Board began the process of amending the Policy on

March 15, 2023, when the Maine School Management Association distributed a new

policy it had prepared. Miller Suppl. Decl. ¶ 2.

Following the remand, on March 12, 2024, McBreairty filed his amended

complaint, in which he confirmed that he does indeed plan to speak at future School

Board meetings “again and again, at every meeting, and he intends to criticize RSU22

officials and government employees at these meetings” and to identify certain

individual teachers by name. Am. Compl. ¶¶ 35–36. McBreairty alleges that his

comments would violate Rule 3(b) and Rule 3(c) because they would be “critical of the

named individuals” and “would discuss the job performance and/or conduct of the

named individuals, who are school unit employees.” Am. Compl. ¶¶ 38–39.

McBreairty also claims that his comments would violate the Board Chair’s “unwritten

rule that individuals cannot be mentioned by name,” which McBreairty says is only

enforced against those who criticize the government and not against those who praise

it. Am. Compl. ¶¶ 40–41. In addition, McBreairty anticipates that he might one day

criticize a student, though he has no concrete intent to do so, and that such speech

would be prohibited by Rule 3(d). Am. Compl. ¶ 43. The complaint contains five

claims: (1) a claim under 42 U.S.C. § 1983 for violation of the First Amendment

because the Defendants retaliated against McBreairty for exercising his First

Amendment rights to freedom of speech and expression and to petition; (2) a claim

for declaratory and injunctive relief under 42 U.S.C. § 1983 for violations of the First

Amendment; (3) a claim under 5 M.R.S. § 4682 for violations of the rights to free

speech and petition provided by the U.S. Constitution and Maine Constitution; (4) a

claim for declaratory and injunctive relief under 5 M.R.S. § 4682 for violations of the

U.S. Constitution and Maine Constitution; and (5) a claim for violation of 20-A M.R.S.

§ 1001(20), the Maine statute that requires school boards to provide an opportunity

for the public to comment on school and education matters at a school board meeting.

Am. Compl. ¶¶ 47–83.

The Defendants filed their answer to the amended complaint on March 25,

2024. Answer (ECF No. 37). On April 9, 2024, McBreairty filed his motion for

preliminary injunction (“Motion”), arguing that he intended to speak at the April 24,

2024 School Board meeting and that the Court should enjoin the Defendants from

enforcing the Policy against him at that meeting. Mot. for Prelim. Inj. (“Pl.’s Mot.”)

(ECF No. 39). On April 11, 2024, I held a conference of counsel to discuss the briefing

schedule in light of McBreairty’s plans to speak at the April School Board meeting.

Minute Entry (ECF No. 41). After conferring with his client, counsel for the Plaintiff

represented that McBreairty would instead plan to attend the School Board’s first

meeting in May to give the parties time to complete briefing and to give me time to

consider their arguments and issue a decision. The parties agreed that it was

unnecessary to hold an evidentiary hearing or oral argument on the matter. The

Defendants filed their response in opposition (“Opposition”) to McBreairty’s Motion

on April 26, 2024. Mem. of Law in Opp’n to Pl.’s Mot. for Prelim. Inj. (“Defs.’ Opp’n”)

(ECF No. 42). McBreairty filed a reply on May 10, 2024, a week after the deadline I

had set at the conference (ECF No. 43). The parties have confirmed that the next

School Board meeting is scheduled for May 15, 2024.

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). 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.

McBreairty v. Sch. Bd. of RSU, 616 F. Supp. 3d 79, 88–89 (D. Me. 2022) (citing 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 Plaintiff as the movant

shoulders the burden of establishing that a preliminary injunction should issue, and

the School Board “bears the burden of proving the constitutionality of its actions.”

United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 816 (2000).

DISCUSSION

I. Standing

Before considering the merits, I must consider whether McBreairty has

standing under Article III of the U.S. Constitution to seek the requested injunctive

relief. McBreairty maintains that he has standing because he fears being subject to

arrest or other action if he violates the School Board’s Policy by exercising his First

Amendment right to criticize a public employee. Pl.’s Mot. 6. The Defendants argue

that McBreairty lacks standing to bring two of his three challenges to the Policy.

Defs.’ Opp’n 6 n.4, 11. I agree with the Defendants.

As the First Circuit recently explained:

Article III only permits federal courts to hear “Cases” or “Controversies.”

To establish that there is a case or controversy, a plaintiff must have

standing to obtain the relief sought. For there to be standing, the

plaintiff must have suffered an injury in fact, that is fairly traceable to

the challenged conduct, and that may be redressed by the requested

relief.

McBreairty, 93 F.4th at 518 (internal citations omitted). In a facial First Amendment

challenge, an injury in fact can be established if the Plaintiff shows “an intention to

engage in a course of conduct arguably affected with a constitutional interest, but

proscribed by the statute, and there exists a credible threat of prosecution.” Ramírez

v. Sánchez Ramos, 438 F.3d 92, 98 (1st Cir. 2006). But a plaintiff like McBreairty who

is “seeking injunctive relief from the enforcement of a limitation on speech that

allegedly violate[s] the First Amendment lack[s] Article III standing” if he “never

stated an intention to engage in any activity that falls within the challenged rule.”

McBreairty, 93 F.4th at 518 (quoting Ramírez, 438 F.3d at 99).

Here, McBreairty alleges that he “intends to return to RSU22 Board meetings

and speak during the public comment period, again and again, at every meeting, and

he intends to criticize RSU22 officials and government employees at these meetings,”

including identifying teachers by name, in violation of Rule 3(c) of the Policy. Am.

Compl. ¶¶ 35–36, 39. Because McBreairty has alleged his intention to engage in the

speech at issue—discussion of individual personnel matters—at future School Board

meetings, he has standing to challenge Rule 3(c) of the Policy.

McBreairty also alleges that his comments about RSU 22 employees would

violate Rule 3(b) of the Policy because they would be “truthful, yet critical of the

named individuals.” Am. Compl. ¶ 38. But such intended speech would not, on its

face, violate Rule 3(b). In Maine, a comment is defamatory if it involves a false

statement. See Galarneau v. Merrill Lynch, Pierce, Fenner & Smith Inc., 504 F.3d

189, 197–98 (1st Cir. 2007). So McBreairty’s allegation that he intends to provide

truthful comments during the public comment period takes his intended speech out

of the purview of Rule 3(b). Although McBreairty poses a rhetorical question in his

Motion—“what is to stop Defendants from labeling criticism of School Board members

or RSU22 employees . . . as defamatory?”—such speculation does not suffice to allege

the injury in fact that McBreairty needs to establish standing.

Similarly, McBreairty lacks standing to challenge Rule 3(d) of the Policy, which

prohibits discussion of matters involving individual students. McBreairty alleges that

he “has no concrete intent to criticize or single out any individual student,” Am.

Compl. ¶¶ 42–43, so he admittedly has not shown the “concrete, live dispute[ ]”

needed for standing to challenge Rule 3(d) here. See McBreairty, 93 F.4th at 518. And

he only alleges entitlement to declaratory and injunctive relief as to Rules 3(b) and

3(c) of the Policy. See Am. Compl. ¶¶ 63, 76.

Having determined that McBreairty has standing to challenge only Rule 3(c)

of the Policy, I turn now to the merits of his claims.

II. The Merits of Plaintiff’s Claims

McBreairty focuses on his constitutional free speech claims, so I must

determine whether he is likely to succeed on his claim that Rule 3(c) of the Policy

violates the First Amendment right to free speech both facially and as applied.

Because the protections afforded speech under the Maine Constitution are

coextensive to those in the U.S. Constitution, I do not separately analyze his

challenge under the Maine Constitution. See Cutting v. City of Portland, No. 2:13-cv-

359-GZS, 2014 WL 580155, at *4 n.3 (D. Me. Feb. 12, 2014) (“ ‘[T]he Maine

Constitution is no less restrictive than the Federal Constitution’ with respect to the

protections it provides for the freedom of speech.” (quoting State v. Janisczak, 579

A.2d 736, 740 (Me. 1990))), aff’d, 802 F.3d 79 (1st Cir. 2015).

A. First Amendment Speech Claim

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 decide 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.

As to step one of the inquiry, the Defendants do not dispute that McBreairty’s

public comments at School Board meetings are protected speech. 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). Moving to step two, the parties agree that the public comment portion

of the School Board meeting is a limited public forum. See Mot. 8; Defs.’ Opp’n 13; see

also McBreairty v. Sch. Bd. of RSU 22, 616 F. Supp. 3d 79, 93 (D. Me. 2022) (“Taken

together, [Maine] law and the 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).

Thus, 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 if it “denies access to a speaker solely to suppress

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

1. Facial Challenge to the Policy

McBreairty argues that Rule 3(c) of the Policy is unconstitutional on its face

because it is viewpoint-based, an unreasonable restriction on speech that is content-

based, and vague. Pl.’s Mot. 13–14. The Defendants counter that a personnel-matter

restriction like Rule 3(c) is viewpoint neutral, a reasonable restriction on speech, and

not unconstitutionally vague. Defs.’ Opp’n 7–11, 16.

a. Whether Rule 3(c) Is Viewpoint Neutral

To determine if a restriction rises to the level of viewpoint discrimination, I

must consider “whether—within the relevant subject category—the government has

singled out a subset of messages for disfavor based on the views expressed.” Matal v.

Tam, 582 U.S. 218, 248 (2017) (Kennedy, J., concurring in part and concurring in the

judgment). Rule 3(c) of the Policy provides that “[d]iscussion of personnel matters is

not permitted during the public comment period due to the privacy, confidentiality

and due process rights of school unit employees.” Policy 2. The Policy defines

“discussion of a personnel matter” to mean “any discussion, whether positive or

negative, of job performance or conduct of a school unit employee.” Policy 2. On its

face, then, the rule does not impermissibly “prefer[ ] one particular viewpoint in

speech over other perspectives on the same topic.” See Ridley, 390 F.3d at 82. Instead

it “suppress[es] certain general topics of speech”—topics concerning the job

performance or conduct of an RSU 22 employee—which the government is permitted

to do in an limited public forum. See id. The rule does not single out any subset of

messages for disfavor based on the views expressed. I conclude that Rule 3(c) is likely

to be found viewpoint neutral.

b. Whether Rule 3(c) Is Reasonable

A content-based restriction is reasonable if “it preserves the purposes of that

limited forum.” Rosenberger, 515 U.S. at 829–30. “The reasonableness standard is not

a particularly high hurdle; there can be more than one reasonable decision, and an

action need not be the most reasonable decision possible in order to be reasonable.”

Ridley, 390 F.3d at 90. McBreairty argues that there is nothing reasonable about

prohibiting statements about school employees in a limited public forum created for

comment on “school and education matters.” Pl.’s Mot. 13 (quoting 20-A M.R.S.

§ 1001(20)). Maine law does require that school boards “provide the opportunity for

the public to comment on school and education matters at a school board meeting,”

but the same statute also permits them to establish “reasonable standards for the

public comment period.” 20-A M.R.S. § 1001(20). The question then comes back

around to whether the standard that the School Board established in Rule 3(c),

excluding individualized personnel matters from its limited public forum, is

reasonable. I conclude that it 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 employed by RSU 22 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 v. Liberty Indep. Sch. Dist., 597

F.3d 747, 760 (5th Cir. 2010). Further, alternate avenues for such speech are readily

available. Obviously outside of the limited public forum of the televised School Board

meeting, McBreairty is free to speak his mind about individual school personnel. But

more importantly, the Policy itself offers a way for McBreairty to raise his “concerns

about personnel matters.” Policy 2. Rule 3(e) informs would-be speakers that those

concerns “should be directed to the Superintendent or another appropriate

administrator outside of Board meetings so that they can be addressed through an

alternative channel and in a manner consistent with privacy, confidentiality, and due

process rights of the individuals involved.”3 Policy 2. Alternatively, “members of the

public are welcome to submit written comments on school and educational matters to

the Board and Superintendent.” Policy 1. That all “leaves the public ample

opportunity to be heard—just not here and now.” Fairchild, 597 F.3d at 760; cf.

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. Plan. Comm’n, 527 F.3d 377, 387 (4th Cir. 2008))). I therefore find that the

restriction in the Policy is likely reasonable.

c. Weight of Case Law

As the Defendants point out, I am not alone in concluding that a prohibition

on the discussion of an individual school employee’s job performance or conduct

during a school board meeting’s comment session is a reasonable and viewpoint-

3 Privacy, confidentiality, and the due process rights of RSU 22 employees are among the

obligations that the Defendants cite as additional factors in the reasonableness determination that I

should balance against the interest in a public opportunity for comment. Mem. of Law in Opp’n to Pl.’s

Mot. for Prelim. Inj. (“Defs.’ Opp’n”) 9 (ECF No. 42). A Maine statute requires school boards to

“address the negative effects of bullying of school employees” and “ensure the safety of employees and

an inclusive environment for all employees.” 20-A M.R.S. § 1001(22). Another Maine statute requires

schools to keep confidential “information in any form relating to an employee . . . if it relates to . . .

[p]erformance evaluations, personal references and other reports and evaluations reflecting on the

quality or adequacy of the employee’s work or general character compiled and maintained for

employment purposes” and any “[c]omplaints, charges of misconduct, replies to complaints and

charges of misconduct and memoranda and other materials pertaining to disciplinary action.” 20-A

M.R.S. § 6101(2)(B).

neutral restriction. 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 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 *3–4.

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. at *8. 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.

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, during the public comment portion of a meeting about her tenure issue. 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; see also Davison, 19 F.4th at

635–36 (upholding as reasonable a school board policy that prohibited “all personal

attacks, regardless of viewpoint” against any identifiable individual because they

cause “unnecessary delay or disruption to a meeting”).

Likewise, in Fairchild v. Liberty Independent School District, 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).” Id. It also found 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.

McBreairty argues that Fairchild is distinguishable because the policy in that

case allowed the school board to “listen” to personnel complaints during the public

comment session but not act on them. Pl.’s Mot. 11 n.7. But the Fairchild policy is

like RSU 22’s Policy in that it did not permit the naming of employees during public

comment and instead required members of the public who had “personal

disagreement with employees” to go through the alternative channel of the board’s

grievance processes. Fairchild, 597 F.3d at 756–57, 760. As the Fifth Circuit

explained, the school board’s policy “excludes resolution of the merits of disputed

individual performance in its limited forum, and to allow the charges of one side

would force allowance of a response—a frustration of this studied effort to manage its

agenda.” Id. at 760. In other words, the school board did “not allow at th[at] time and

place charges against its teachers” but instead “reroute[d] them for further

treatment.” Id. Although the parties have yet to develop the record as fully as in

Fairchild, that appears to be the case in RSU 22 as well.

For the foregoing reasons, I find that it is not likely that Rule 3(c) will be found

to be unreasonable or discriminatory on the basis of speaker viewpoint. The

Defendants have therefore justified their exclusion of personnel-matters speech from

the limited public forum established for public comment during School Board

meetings. I now must decide whether McBreairty is likely correct that Rule 3(c) is

impermissibly vague.

d. Whether Rule 3(c) Is Unconstitutionally Vague4

The void-for-vagueness doctrine is based on due process and “is concerned

with circumstances in which a law is so vague that it does not provide fair notice of

what conduct it prohibits and creates a risk of arbitrary enforcement.” Doe v.

Hopkinton Pub. Sch., 19 F.4th 493, 509 (1st Cir. 2021). Restrictions on speech require

a greater degree of specificity, “[b]ut ‘perfect clarity and precise guidance have never

been required even of regulations that restrict expressive activity.’ ” Frese v.

Formella, 53 F.4th 1, 6–7 (1st Cir. 2022) (quoting United States v. Williams, 553 U.S.

285, 304 (2008)), cert. denied, 144 S. Ct. 72 (2023).

McBreairty’s argument that Rule 3(c) is unconstitutionally vague focuses on

whether the rule gives would-be speakers adequate notice. See Pl.’s Mot. 17–18. He

contends that it is not clear under the rule “whether people are allowed to provide

criticism even in the abstract.” Pl.’s Mot. 17. “A statute is impermissibly vague for

lack of notice ‘only if it prohibits an act in terms so uncertain that persons of average

4 The Defendants contend that McBreairty’s facial challenge to the Policy should not even be

subjected to vagueness scrutiny because the First Circuit and other courts have questioned whether

the doctrine applies outside of statutes, ordinances, and licensing schemes. Defs.’ Opp’n 12; see Ridley

v. Mass. Bay Transp. Auth., 390 F.3d 65, 93 (1st Cir. 2004) (conducting a vagueness analysis yet adding

“to the extent it applies here at all” in a case involving guidelines for advertising in a public transit

system). It is a fair point. But because I do not have a clearer directive to forgo applying the vagueness

inquiry to the school board meeting rules, I proceed with the analysis.

intelligence would have no choice but to guess at its meaning and modes of

application.’ ” Id. (quoting Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 62 (1st Cir.

2011)). Moreover, “[t]he mere fact that a regulation requires interpretation does not

make it vague.” Ridley, 390 F.3d at 93.

Here, I find that Rule 3(c) is likely not impermissibly vague. It is clear what

the rule prohibits because it provides a definition of what is meant by “discussion of

a personnel matter.” Policy 2. During public comment, speakers may not discuss the

“job performance or conduct of a school unit employee” regardless of “whether positive

or negative.” Policy 2. A person of ordinary intelligence would understand that to

mean that he may not praise, criticize, or otherwise comment on an individual RSU

22 employee’s job performance or conduct. I see no ambiguity there. Even if there

were room for interpretation as to the exact contours of this part of the rule, it is clear

from reading Rule 3(c) as a whole that speakers may not discuss particular employees

“due to the privacy, confidentiality and due process rights” of those individual school

unit employees. See Policy 2.

McBreairty’s concern about voicing criticism in the abstract is thus unfounded

because generalized feedback would not run afoul of Rule 3(c) if it did not identify

specific teachers. McBreairty appears to readily appreciate this distinction. He

alleges that his intention to “name and criticize” particular school employees “on

account of what they do in the RSU22 schools and how they educate children” would

violate Rule 3(c) “as they would discuss the job performance and/or conduct of the

named individuals, who are school unit employees.”5 Am. Compl. ¶¶ 36, 39 (emphasis

added). These allegations lend support to my conclusion that Rule 3(c) is likely not

unconstitutionally vague. Accordingly, I find that McBreairty is unlikely to succeed

on his challenge to Rule 3(c) based on vagueness.

e. Whether Rule 3(c) Is a Prior Restraint

McBreairty also alleges that the Policy has “chilled [him] from appearing and

speaking” at School Board meetings because he fears being removed by law

enforcement for violating one or more of the Policy rules. Am. Compl. ¶¶ 44–45. He

argues that Rule 3(c) is an unconstitutional prior restraint. Pl.’s Mot. 14. The

Defendants disagree. Defs.’ Opp’n 7 n.6.

“The term ‘prior restraint’ is ‘used to describe administrative and judicial

orders forbidding certain communications when issued in advance of the time that

such communications are to occur.’ ” March v. Frey, 458 F. Supp. 3d 16, 36 (D. Me.

2020) (quoting Alexander v. United States, 509 U.S. 544, 550 (1993)). “There is a

strong presumption that prior restraints on speech are unconstitutional.” Sindi v. El-

Moslimany, 896 F.3d 1, 31 (1st Cir. 2018). Prior restraints often take the form of

injunctions, but not all restrictions “that may incidentally affect expression . . . are

‘prior restraints.’ ” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 763 n.2 (1994).

5 For example, at the February 2023 School Board meeting, McBreairty claimed that another

teacher at RSU 22 equated introduction of LGBTQ+ concepts to young children with grooming by

sexual predators, and McBreairty then identified a teacher by name, referring to her as the “2022

groomer, I mean teacher, of the year.” Compl. Ex. C (ECF No. 1-3). He then said that the teacher

should be locked up and not allowed within five hundred feet of a school. Compl. Ex. C. At the March

2023 School Board meeting, McBreairty identified by name a teacher “who has an LGBTQ cult war

flag on the classroom wall,” and he stated another named teacher had “taught sex . . . after school.”

Compl. Ex. E (ECF No. 1-5).

Here, I am skeptical that Rule 3(c) constitutes a prior restraint for a few

reasons. First, a rule in a School Board policy hardly carries the weight of an

injunction forbidding certain speech. Second, McBreairty’s message is not being

silenced altogether; there are multiple avenues available to him to convey his

opinions about RSU 22 personnel to the School Board. See id. (declining to adopt prior

restraint analysis because protesters were “not prevented from expressing their

message in any one of several different ways”). And finally, on its face, Rule 3(c) does

not operate as a prior restraint on speech but instead serves to provide safeguards by

which the Board Chair can facilitate the “fair and orderly expression of public

comments” at School Board meetings. Policy 1.

The following passage from a First Circuit case involving a challenge to a

leaflet permitting scheme is instructive on this point:

Subparagraph E.2 allows Massport to revoke a permit based on

particular conduct by leafletters. Because this proviso grants discretion

to limit activity at the time when it occurs, it is not a prior restraint on

speech, but, rather, a means through which public safety personnel may

terminate an activity that becomes dangerous or comes to violate the

time, place, and manner restrictions contained in the regulations. As

such, the proviso constitutes an unremarkable and ubiquitous

safeguard, constitutional on its face. Whether the power that it vests in

public officials may, at some future date, be applied in an

unconstitutional manner is not now before us.

New Eng. Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 25 (1st Cir. 2002). Here,

too, Rule 3(c) and the Policy as a whole give the Board Chair discretion to limit speech

at the time it occurs, not before. The Policy allows the Board Chair to revoke a

speaker’s allotted time at the podium if the speaker violates the time, place, and

manner restrictions contained in the Policy, for example, if a speaker names

individual teachers in violation of Rule 3(c). As in Kinton, that “proviso constitutes

an unremarkable and ubiquitous safeguard” to protect the privacy, confidentiality,

and due process rights of public school employees, and thus is likely constitutional on

its face as it is not a prior restraint.

For all the foregoing reasons, I find that McBreairty has not shown a

substantial likelihood of success on the merits of his constitutional challenge to the

Policy.6

2. As-Applied Challenge to the Policy

McBreairty also alleges and argues that Rule 3(c) is unconstitutional as

applied to him. Am. Compl. ¶ 60; Pl.’s Mot. 9, 13–15. The problem with McBreairty’s

claim at this stage is that Rule 3(c) of the Policy has not yet been applied to

McBreairty’s speech because he has not spoken at a School Board meeting since the

Policy was revised and Rule 3(c) was enacted last June. McBreairty acknowledges as

much. See Pl.’s Mot. 9 (arguing the constitutionality of the way the rules “would be

applied” to his intended future speech); Pl.’s Mot. 10 n.6 (“Since New Rule 3(c) was

adopted, recordings of meeting[s] show only one public comment speaker, none of

whose comments address any particular school, thus providing no evidence as to the

application of the rule or absence thereof.”).

6 I have not revisited the arguments that the parties made in their 2023 briefing under the prior

version of the Policy, including McBreairty’s as-applied challenge to that Policy, because I view

McBreairty’s claims under the old rules to be moot and irrelevant to the preliminary injunction motion

before me now. To the extent those claims and arguments maintain some relevancy to the case, I adopt

and incorporate the findings and conclusions in my prior order.

“[A] challenge to a rule or statute may be ripe for adjudication on the question

of facial constitutionality and yet not be ripe for adjudication on the question of

constitutionality as applied.” Kines v. Day, 754 F.2d 28, 31 (1st Cir. 1985). Although

McBreairty claims that the Defendants violated his First Amendment rights under

the old Public Participation Policy rules, he cites no authority for the proposition that

the manner in which the School Board applied the old rules can be the basis of an as-

applied challenge to the new Rule 3(c). “Speculation, rather than solid evidence,

would [be] the only basis for any . . . conclusion” on his as-applied challenge. Id.

(noting that “[a]ny decision maker would be foolhardy to undertake such a delicate

task without a fully developed record”). As of now, McBreairty’s as-applied challenge

is not ripe, and I decline his invitation to speculate on how Rule 3(c) may be applied

to McBreairty in the future.

B. Maine Statutory Claim

McBreairty also argues that his claim under 20-A M.R.S. § 1001(20) “is closely

intertwined” with his claims for violation of his constitutional rights and that he is

likely to succeed on this statutory claim in much the same way his constitutional

claims are likely to succeed. Pl.’s Mot. 7. Because I have determined that he is

unlikely to prevail on the merits of his First Amendment claims, McBreairty’s “closely

intertwined” Maine statutory claim is likewise likely to be unsuccessful.

III. Remaining Factors

Likelihood of success “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)

(internal quotation marks omitted). If, like McBreairty, “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).

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 McBreairty is free either to continue to voice his

concerns at School Board meetings in accordance with the Policy (i.e., speak his piece

but refrain from identifying individuals), to submit written comments, or to direct his

concerns about personnel matters to school administrators outside of School Board

meetings in accordance with Rule 3(e) of the Policy so that his concerns “can be

addressed through an alternative channel and in a manner consistent with privacy,

confidentiality, and due process rights of the individuals involved.” Policy 2.7

7 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.

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 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 statutorily imposed interests in safeguarding

RSU 22’s employees’ privacy and confidentiality and protecting them from

harassment and bullying. Meanwhile, McBreairty can still say whatever he wants

about the schools and what is being taught by whom; he just cannot name individuals

in this forum and instead has to provide such comments through one of the

alternative channels provided by Policy. Nothing stops him from writing down his

complaints about school and educational matters and submitting them to the School

Board and Superintendent per the first page of the Policy, or from directing his

concerns about personnel and student matters to the Superintendent or another

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

allow him to discuss individual teachers by name during public comment at meetings. “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.

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).

appropriate administrator outside of School Board meetings, as established by Rule

3(e) of the 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, 2014 WL 580155, at *10

(internal quotation marks omitted). But on the other hand, “the First Amendment

does not require endless public commentary,” the Maine Legislature has 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 - Brevard Cnty. v. Brevard Pub. Schs., 582 F. Supp. 3d

1214, 1221 n.13 (M.D. Fla. 2022), aff’d, No. 22-10297, 2022 WL 17091924 (11th Cir.

Nov. 21, 2022). Granting the Plaintiff his requested injunctive relief would frustrate

these three public interests. I therefore 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

preliminary injunction (ECF No. 39).

SO ORDERED.

/s/ Nancy Torresen

United States District Judge

Dated this 15th day of May, 2024.