George Falcone v. Neil Dickstein

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 22-2701 and 22-2702

GEORGE FALCONE,

Appellant in No. 22-2701

v.

NEIL DICKSTEIN, Personally and in his capacity as the

Superintendent of Freehold Public Schools; MICHELLE

LAMBERT, Personally and in her capacity as the

President of the Freehold Board of Education; MICHAEL S.

AMOROSO, Personally and in his capacity as the Vice

President of the freehold board of education;

JENNIFER PATTEN, Personally and in her capacity as a

member of the freehold board of education; DEBRA

COSTANZA, Personally and in her capacity as a member of

the freehold board of education; ELENA O’SULLIVAN,

Personally and in her capacity as a member of the freehold

board of education; MARY COZZOLINO, Personally and in

her capacity as a member of the freehold board of education;

MEG THOMANN, Personally and in her capacity as a

member of the freehold board of education; NEIL

GARGIULO, Personally and in his capacity as a

member of the freehold board of education; KERRY

VENDITTOLI, Personally and as a member of the freehold

board of education; FREEHOLD BOARD OF EDUCATION;

FREEHOLD TOWNSHIP POLICE DEPARTMENT;

MYROSLAV ALFELDI, Personally and in his capacity as a

freehold township police officer; JOHN DOES 1-25, Said

names being fictitious

GWYNETH K. MURRAY-NOLAN,

Appellant in No. 22-2702

v.

SCOTT RUBIN; KURT PETSCHOW; LISA CARBONE;

TERRY DARLING; BRETT DRYER; WILLIAM HULSE;

NICOLE SHERRIN KESSLER; MARIA LOIKITH;

PATRICK LYNCH; KRISTEN MALLON; CRANFORD

BOARD OF EDUCATION; JENNIFER OSBOURNE;

SCIARRILLO CORNELL MERLINO MCKEEVER AND

OSBOURNE LLC; JOHN DOES 1-25; ABC

DEFENDANTS 1-25; ANTHONY SCIARRILLO;

CRANFORD POLICE DEPARTMENT; NADIA JONES;

ROBERT CHAMRA; DENNIS MCCAFFERY; LESLI

RICE; ANTHONY GIANNICO

________________

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action Nos. 3-22-cv-00921 and 2-22-cv-00801)

District Judges: Hon. Peter G. Sheridan and Hon. Evelyn

Padin

________________

Argued on September 27, 2023

2

Before: KRAUSE, ROTH and AMBRO, Circuit Judges

(Opinion filed: February 5, 2024)

Ronald A. Berutti (Argued)

Murray-Nolan Berutti

136 Central Avenue

2nd Floor

Clark, NJ 07066

Counsel for Appellants

Ruby Kumar-Thompson (Argued)

Cleary Giacobbe Alfieri & Jacobs

169 Ramapo Valley Road

Upper Level 105

Oakland, NJ 07436

Eric L. Harrison (Argued)

Methfessel & Werbel

2025 Lincoln Highway

Suite 200

Edison, NJ 08818

Eileen M. Ficaro (Argued)

Gregory S. Hyman

Brandon L. Wolff

Kaufman Dolowich & Voluck

1650 Market Street

One Liberty Place, Suite 4800

Philadelphia, PA 19103

3

John F. Gillick (Argued)

Rainone Coughlin Minchello

555 U.S. Highway 1 South

Suite 440

Iselin, NJ 08830

Counsel for Appellees

OPINION OF THE COURT

AMBRO, Circuit Judge

In the wake of the COVID-19 pandemic, federal, state,

and local governments scrambled to implement policies to

control the spread of the disease. These measures—which

included mandates to wear face masks in public indoor spaces

such as schools, businesses, and restaurants—spawned

skepticism and debate. Some objectors voiced their discontent

online, some turned to their elected representatives, and some

asked the courts to intervene. Others took less trodden paths.

The plaintiffs in the consolidated cases before us, two

New Jersey parents, chose to express their opposition through

multiple means. One was to attend school board meetings

while refusing to wear a mask in what they believed was a

symbolic protest against masking requirements in schools.

Their conduct led not to debate or policy changes but to a

summons and an arrest.

The plaintiffs sued. The summons or arrest, they

claimed, were retaliation for exercising their First Amendment

4

rights. The District Court in both cases dismissed the

complaints, though on different grounds.

For the reasons that follow, we reverse and remand the

Court’s order against George Falcone and affirm the Court’s

order against Gwyneth Murray-Nolan. A question shadowing

suits such as these is whether there is a First Amendment right

to refuse to wear a protective mask as required by valid health

and safety orders put in place during a recognized public health

emergency. Like all courts to address this issue, we conclude

there is not.

I. Background

On March 9, 2020, New Jersey Governor Phil Murphy

declared a state of emergency in response to the quickly

spreading coronavirus known as COVID-19. N.J. Exec. Order

No. 103; Falcone App. 61-68. As we now know, it primarily

spreads through airborne particles that accumulate in enclosed

spaces, respiratory droplets produced when a person coughs,

sneezes, or talks, and occasionally through contact with objects

contaminated with the virus. How COVID-19 Spreads, CDC

(Aug. 11, 2022), https://perma.cc/EPP9-AUWT. Individuals

infected with COVID-19 can spread the disease while

asymptomatic or pre-symptomatic, making the virus difficult

to control. Over the course of the ensuing months, Governor

Murphy issued a series of Executive Orders to monitor and

curb its spread. One of them mandated that New Jersey schools

“maintain a policy regarding mandatory use of face masks by

staff, students, and visitors in the indoor portion of the school

district premises,” except, for example, when an individual

qualifies for and obtains a medical exemption. N.J. Exec.

Order No. 251 (Aug. 6, 2021). The mandate was aimed at

resuming in-person teaching and other activities while

5

reducing transmission of the virus and protecting unvaccinated

individuals. Falcone App. 83. In preparation for the 2021-

2022 school year, New Jersey School Districts—including the

Freehold Township and Cranford Township School Districts—

implemented mandatory indoor masking policies consistent

with the Executive Order.

COVID-19 has since become endemic (that is, regularly

recurring in particular areas or communities), and the statewide

school mask mandate has been terminated. See N.J. Exec.

Order No. 292 (Mar. 2, 2022). But litigation related to masking

policies has not. In the cases before us, the plaintiffs separately

brought suit against various groups of defendants claiming

they were unlawfully retaliated against for protesting policies

adopted by their local Boards of Education related to

mandatory masking in schools. The cases stem from similar

sets of facts and involve related issues of law, so we have

consolidated them for review.

On appeal from the dismissal of a complaint, we take

the factual allegations as true.

A. George Falcone

Falcone brought suit under 42 U.S.C § 1983 and the

New Jersey Civil Rights Act (“NJCRA”), N.J. Stat. Ann.

§ 10:6-2(c), against the Superintendent of Freehold Public

Schools, various members of the Freehold Township Board of

Education (“BOE” or “Board”), as well as the Freehold

Township Police Department and one of its officers, Myroslav

6

Alfeldi (“Police Defendants”).1 Falcone opposed the

mandatory masking policy adopted by the Freehold BOE and

voiced that opposition at Board meetings and via social media.

Falcone App. 16. He “sought to drum up popular support for

serving notice on the Board” that it was “liable for harming

children with the mask mandate.” Id. Some or all of the

defendants allegedly knew of Falcone’s vocal opposition and

activities.

On February 8, 2022, the Freehold BOE held an indoor

public meeting on School District premises. Joined by around

fifteen other maskless individuals, Falcone entered the

building without a mask “with the well[-]known intent to

engage in protected political speech and activity regarding

unmasking.” Id. They were advised to wear a mask or else the

meeting would not begin. In an “overt and obvious political

protest against the Board’s masking policies,” Falcone

responded that he would not put on a mask. Id. at 17. Some

members of the BOE then called the Freehold Township Police

Department for backup. When Officer Alfeldi arrived and

insisted that Falcone wear a mask, he responded “that he was

engaged in constitutionally protected activities, including his

remaining unmasked, and that he would not put on a mask

unless defendant Alfeldi advised that he would be arrested for

not doing so.” Id. Officer Alfeldi assured Falcone that he

would not be arrested, so he remained maskless. Moments

before the Board convened, Falcone “served what he believed

were legal papers on each Board member.” Id. He then spoke

at the podium for public citizen speakers—still maskless—and

was approached by a second police officer who again directed

1

All Defendants in Falcone’s lawsuit collectively are referred

to as the “Freehold Defendants.”

7

him to wear a mask. Falcone responded by pointing out that

the officer himself was unmasked.

Following the meeting, Officer Alfeldi allegedly issued

a summons and complaint charging Falcone with defiant

trespass in violation of N.J. Stat. Ann. § 2C:18-3b(1), a

misdemeanor. He was the only person among all maskless

attendees to receive a summons, which he alleges was

“clearly” in retaliation for his “protected political and symbolic

speech, and organization thereof.” Falcone App. 18. Two

weeks later, the Board held another meeting. But when

Falcone and several others attended it (again maskless) to

“protest . . . defendants’ actions and policies,” the Board and

Superintendent canceled the meeting. Id. at 19.

Falcone’s lawsuit followed.2 He alleged the Freehold

Defendants unlawfully retaliated against him for exercising his

First Amendment rights and deprived him of substantive due

process.3 They did so by (1) issuing, or conspiring to cause

issuance of, a summons for trespass “in retaliation for hi[s]

organizing and leading a constitutionally protected political

and symbolic protest against the Board’s masking policies,”

Falcone App. 19; Dist. Ct. Dkt. 13 at 20, and (2) canceling the

second BOE meeting “with the purpose of depriving the

plaintiff of his rights to speak,” Falcone App. 20; Dist. Ct. Dkt.

2

He filed his initial complaint on February 22, 2022, after he

received the summons. He amended it on March 17, 2022, to

add allegations pertaining to the BOE’s cancellation of the

second meeting.

3

Falcone initially also sued under 42 U.S.C. § 1985 for

conspiracy to violate his civil rights. He affirmatively

abandoned that claim on appeal. See Appellant Br. 15 n.1.

8

13 at 20. He requested compensatory and punitive damages as

well as injunctive relief. Falcone App. 20-21.

The Freehold Defendants moved to dismiss. They

argued, among other things, that Falcone lacked standing to sue

and that he failed to state a First Amendment retaliation claim

because his refusal to wear a mask was not constitutionally

protected conduct. See Dist. Ct. Dkt. 6 at 10-14, 18-19.

The District Court dismissed the amended complaint on

the ground that Falcone had no standing to sue. It found his

alleged injuries—the receipt of a summons and the Board’s

meeting cancellation—were not “traceable” to the BOE or

Police Defendants but instead to Governor Murphy’s

Executive Order that the Board had to obey. Falcone App. 7-

9. It followed, in the District Court’s view, that Falcone’s

alleged injuries also were not “redressable” by injunctive relief

because “an injunction directed at Defendants would not enjoin

the Governor from implementing or enforcing a mask

mandate.” Id. at 9. Having found that Falcone lacked standing,

the Court did not address the Freehold Defendants’ remaining

arguments. He appeals to us.

B. Gwyneth Murray-Nolan

Murray-Nolan is an “advocate for parental choice in

masking children at school.” Murray-Nolan App. 79. Her

opposition to the Cranford Township BOE’s masking

requirement was also well known: she had testified before the

State Assembly and Senate, posted on social media about “the

harm to her own children, and to children generally, from

masking in school,” and voiced her concerns at Board meetings

on at least six occasions. Id. at 84-85. In September 2021,

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Murray-Nolan filed a Harassment, Intimidation and Bullying

Complaint against the Superintendent of Cranford Public

Schools, a Cranford school principal, and a school nurse

claiming that Murray-Nolan’s children were “the subject of an

alleged retaliatory incident . . . related to the masks that they

were wearing.” Id. at 85.

Fast forward to January 24, 2022, when the Board held

a public meeting on School premises. Murray-Nolan entered

the building maskless “in a sign of silent protest against the

Cranford School [Board’s] masking policy, related Executive

Orders, as well as the [Board’s] lack of action related to

unmasking children in schools,” particularly “those with

special needs.” Id. at 79. By not wearing a mask, she was

“showing solidarity with all such children” and “protesting the

BOE’s violation of their civil rights.” Id. at 81. She sat in the

front row, maskless, listening to virtual student presentations

for about twenty minutes, when the BOE’s legal counsel—

Defendant Jennifer Osbourne—stated “that everyone in the

room must be masked.” Id. at 79-80. Murray-Nolan refused

to take a mask that was offered to her, so Osbourne, after

consulting with Superintendent Rubin, announced she would

“contact law enforcement on anyone in attendance at the

meeting who remained unmasked.” Id. at 80. Murray-Nolan

did not relent, so the Board, Osbourne, and Superintendent

Rubin convened for a private meeting. During the ten-minute

break, “almost all” attendees allegedly “removed their masks

in solidarity with” Murray-Nolan. Id. The Board then

canceled the meeting; hence the public comment portion never

took place.

The next day, the Board posted a statement on the

Cranford Public Schools’ Facebook page explaining why the

10

meeting ended abruptly: “a member of the public” refused to

wear a mask in violation of the BOE’s masking policy. Id. at

81, 105-06. It noted that individuals who disagreed with this

policy could attend Board meetings virtually and explained

“the individual” was so informed and offered a mask but

refused both times. Id. at 105. “Rather than contacting the

police, the Board chose to end the meeting so it could be in

compliance with the [Governor’s] executive order.” Id. The

statement concluded by emphasizing that attendees would be

expected to comply with the masking policy going forward. Id.

A few days later, Murray-Nolan spoke to the Chief of

the Cranford Police to voice her concerns about the BOE’s

“threat to call the police,” and the Chief allegedly insinuated

that “no parent would be arrested for refusing to wear a mask

at a BOE meeting.” Id. at 83.

In anticipation of the Board’s February 14, 2022,

meeting, the Superintendent circulated an email explaining that

any individuals wishing to attend the meeting in person would

have to comply with the masking policy unless they qualified

for a medical exemption. Id. at 83, 108-09. The email also

referred to the Board’s policy permitting it to “request[]

assistance from law enforcement officers in the removal of a

disorderly person when that person prevents or disrupts a

meeting,” and it asked that “residents [who] object to executive

orders . . . focus [their] efforts on those individuals who either

created the orders or who have the power to [e]ffect change[.]”

Id. at 108-09. Believing that the email targeted her, Murray-

Nolan posted in a Facebook group a “statement in response”

explaining the origin and nature of her opposition to the BOE’s

masking requirement and asserting that “filing a lawsuit

11

against the state and the Governor was the only recourse for

[her] kids.” Id. at 113.

Rather than suing them, Murray-Nolan filed her initial

complaint and an order to show cause against Superintendent

Scott Rubin, various members of the Cranford BOE, and

attorney Osbourne. She did so just before the February 14

meeting and served copies on them via email an hour before it

began. When Murray-Nolan arrived at the School—again

maskless—she was advised by an employee of the Board that

“he was ‘told’ to call the police on [her] if she entered the

building unmasked.” Murray-Nolan App. 87. She countered

that “not wearing a mask was politically protected free speech”

and proceeded to enter. Id. at 88. She handed a courtesy copy

of her complaint to the Board’s secretary and sat down, still

maskless. In the hallway, one of the Board’s legal counsel,

Defendant Anthony Sciarrillo, met with members of the

Cranford Police to “alert them that he sought to have [Murray-

Nolan] arrested if she did not place a mask on her face, to

which the [Police Department] and the officers agreed.” Id. at

89. Sciarrillo entered the meeting room, sat next to Murray-

Nolan, and instructed her to put on a mask. Id. She responded

by serving him a copy of the complaint. When Sciarrillo

repeated his request, Murray-Nolan restated that “not wearing

a mask was politically protected speech under the First

Amendment.” Id. at 89-90. Sciarrillo then signaled to the back

of the room and toward the entrance of the conference room,

where three police officers were watching. Shortly thereafter,

they arrested her for defiant trespass under N.J. Stat. Ann.

§ 2C:18-3b, the same violation that led to Falcone’s summons.

Murray-Nolan amended her initial complaint, thereby

suing three groups of defendants under 42 U.S.C. § 1983 and

12

the NJCRA4: Superintendent Rubin and various members of

the Cranford BOE (together, the “BOE Defendants”), the

Board’s two legal counsel (“Attorney Defendants”), and the

Cranford Police Department and several police officers

(“Police Defendants”).5 As relevant here, Murray-Nolan

alleged the Cranford Defendants retaliated against her for

exercising her First Amendment rights when they canceled the

first Board meeting, published “threats” via email and social

media, and arrested her following her maskless attendance at

the second meeting. Murray-Nolan App. 94-95; Dist. Ct. Dkt.

13 at 15-16.6 She sought compensatory and punitive damages

as well as injunctive relief.

The Cranford Defendants moved to dismiss, arguing,

among other things, that Murray-Nolan lacked standing to sue

4

Murray-Nolan also alleged that the Cranford Defendants

conspired to deprive her of her civil rights in violation of 42

U.S.C. § 1985 and failed to prevent such a conspiracy in

violation of § 1986. Murray-Nolan App. 98, 100. The District

Court dismissed both counts. Her claims under § 1983 and the

NJCRA are the only ones at issue in this appeal. See Reply Br.

10.

5

All defendants in Murray-Nolan’s lawsuit collectively are

referred to as the “Cranford Defendants.”

6

Murray-Nolan’s complaint did not specifically identify a First

Amendment retaliation claim. It alleged only that the Cranford

Defendants “intentionally, recklessly, and/or negligently

interfered with and have deprived and/or damaged the Plaintiff

by violating her rights, privileges, and/or immunities.” See

Murray-Nolan App. 94-95. Murray-Nolan specified that she

was pressing a First Amendment retaliation claim in her

opposition to the Cranford Defendants’ separate motions to

dismiss. See Dist. Ct. Dkt. 13 at 15; Dkt. 30 at 20.

13

and that her First Amendment retaliation claim failed because

she did not allege any “constitutionally protected conduct.”

Dist. Ct. Dkt. 12 at 10-20; Dkt. 21 at 10-17, 21-26; Dkt. 27 at

9-15. The Attorney Defendants also contended they were not

“state actors” for purposes of § 1983. Dkt. 21 at 17-20. And

the Police Defendants asserted the retaliatory arrest claim

failed because they had probable cause to arrest her and, in any

event, they were entitled to qualified immunity. Dkt. 27 at 19-

22.

The District Court rejected the Cranford Defendants’

standing arguments but agreed Murray-Nolan failed to state a

claim for First Amendment retaliation. Murray-Nolan App.

16-19, 22-26 (citing Rumsfeld v. F. for Acad. & Inst. Rts., Inc.

(“FAIR”), 547 U.S. 47, 66 (2006), and Texas v. Johnson, 491

U.S. 397, 404 (1989)). Her alleged “right to appear at [the

Board meetings] without a mask” was not “inherently

expressive” conduct, it reasoned, but rather was expressive

only “because she told Defendants that it was, and sued to

prove it.” Id. at 16-19, 22-26. The Court also found the

Attorney Defendants were not “state actors,” id. at 26-27, and

Murray-Nolan’s retaliatory arrest claim failed against the

Police Defendants for the additional reason that they had

probable cause to arrest her for willfully refusing to wear a

mask, id. at 27-29. She also appeals.

II. Jurisdiction and Standard of Review

The District Court in both cases had jurisdiction under 28

U.S.C. §§ 1331 and 1367, and we have jurisdiction under 28

U.S.C. § 1291. When reviewing a dismissal for lack of

standing or failure to state a claim, we give it a fresh look. See

Free Speech Coal., Inc. v. Att’y Gen., 677 F.3d 519, 530 (3d

Cir. 2012); Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210,

14

218 (3d Cir. 2015). We accept the plaintiffs’ well pled factual

allegations as true and draw all reasonable inferences in their

favor. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). But

we disregard unsupported conclusions or legal conclusions

couched as factual allegations. See Morrow v. Balaski, 719

F.3d 160, 165 (3d Cir. 2013).

III. Discussion

Though we consolidated the cases for review, the issues

before us are distinct. We first address the District Court’s

order dismissing Falcone’s suit for lack of standing. The

parties ask us to do more, but we begin and end our inquiry

there. We then turn to the District Court’s order dismissing

Murray-Nolan’s suit for failure to state a claim.

A. Falcone - Standing

Falcone challenges the District Court’s finding that he lacks

standing to sue and is not entitled to injunctive relief. Our

standing inquiry is separate from any assessment of his claims’

merits. See Cottrell v. Alcon Lab’ys, 874 F.3d 154, 162 (3d

Cir. 2017). All we ask is whether Falcone plausibly alleges he

was injured under his theory of the underlying legal claims.

So, while we necessarily reference the “nature and source of

the claims” he asserts, id. (quoting Warth v. Seldin, 422 U.S.

490, 500 (1975)), we must not “confuse weakness on the merits

with absence of Article III standing,” Ariz. State Legislature v.

Ariz. Indep. Redistricting Comm’n, LLC, 576 U.S. 787, 800

(2015) (quoting Davis v. United States, 564 U.S. 229, 249 n.10

(2011)). Instead, we assume he would succeed, even if

ultimate recovery is “uncertain or even unlikely.” Mission

Prod. Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652,

1660 (2019).

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To satisfy the familiar requirements for Article III

standing, Falcone (1) must have suffered injury in fact (2) that

is fairly traceable to the challenged conduct and (3) redressable

by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504

U.S. 555, 560 (1992).

As for injury, Falcone must show that he suffered “an

invasion of a legally protected interest” that is “concrete and

particularized” and “actual or imminent, not conjectural or

hypothetical.” Id. (internal quotation marks omitted). In the

context of a motion to dismiss, the “[i]njury-in-fact element is

not Mount Everest,” and Falcone need only allege “some

specific, identifiable trifle of injury.” Blunt v. Lower Merion

Sch. Dist., 767 F.3d 247, 278 (3d Cir. 2014) (quoting Danvers

Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 294 (3d Cir.

2005)).

The Police Defendants no longer argue that Falcone

failed to establish this requirement. Oral Argument at 22:45-

55 (conceding that he has shown injury in fact). Wisely so.

Falcone contends he was injured on receiving a criminal

summons after exercising his First Amendment right to protest

at a Board meeting. The District Court ruled, and we agree,

that receipt of a summons can be a tangible injury for standing

purposes. Cf. Smith v. Campbell, 782 F.3d 93, 99 n.4 (2d Cir.

2015) (assuming that issuance of traffic ticket can constitute

injury).

Falcone also claims he was injured when the Board

canceled the second meeting to prevent him from exercising

his constitutional rights. At oral argument, counsel for the

BOE Defendants appeared to suggest that the meeting

cancellation cannot cause an individualized injury because

16

others were likewise prevented from speaking. Oral Argument

at 44:31-42. Of course, canceling or rescheduling a meeting in

the normal course does not inflict an Article III injury, but

Falcone alleges that the meeting was canceled specifically for

the purpose of preventing him from speaking in that forum.

Conduct undertaken to curtail someone’s First Amendment

rights does not become less injurious or non-retaliatory just

because it has collateral consequences for other people. We

are also unconvinced by the BOE counsel’s contention that

Falcone was not injured by the meeting cancellation because

he might have an opportunity to speak at a later meeting. Oral

Argument at 47:00-51. That argument may fare well as a

response to the merits of Falcone’s substantive due process

violation claim, but it does not help Defendants’ standing

challenge. “[A]lleged First Amendment free speech violations

are concrete and particular injuries for purposes of Article III

standing.” Henry v. Att’y Gen., Alabama, 45 F.4th 1272, 1288

(11th Cir. 2022). That the Board did not indefinitely prevent

Falcone from speaking is of no moment. Cf. Roman Cath.

Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020) (“The

loss of First Amendment freedoms, for even minimal periods

of time, unquestionably constitutes irreparable injury.”

(citation omitted)). So far, we agree with the District Court.

Next, we consider whether Falcone’s alleged injuries

are “fairly traceable” to the Freehold Defendants’ conduct.

The District Court held that they are not because “the mask

mandate emanated from the Governor’s Executive Order and

the BOE was obligated to comply with it.” Falcone App. 7-9.

Falcone contends the Court erred in so holding because it

misconstrued his complaint as a challenge to the mask

mandate. Appellant Br. 9-11. We agree. Falcone does not

claim he was injured from “having to wear a mask” and he does

17

not—at least in this suit—challenge the constitutionality of the

mask mandate or the permissibility of the Board’s masking

policy. Instead, he alleges the Freehold Defendants retaliated

against him for his views by issuing a criminal summons and

canceling the second Board meeting to prevent him from

speaking. They cannot hide behind the Governor’s Executive

Order when it is their specific actions that allegedly harmed

Falcone.

We disagree with the BOE Defendants that the issuance

of the summons is not traceable to them. Oral Argument at

40:54-41:16. Falcone claims the Board “conspired” or

“cooperated” with the police to issue the summons. Falcone

App. 19; Appellant Br. 17. Although that claim may not

survive a Rule 12(b)(6) motion to dismiss, it suffices for

purposes of our standing inquiry. We agree with the Police

Defendants, however, that the cancellation of the Board

meeting is not traceable to them, as Falcone does not allege

they had any part in it. See Police Defs. Br. 13.

Third, we consider whether Falcone has established that

his injury can be redressed by a favorable court decision. The

remedy he seeks need not be complete or relieve every injury

alleged to satisfy Article III standing. See Uzuegbunam v.

Preczewski, 141 S. Ct. 792, 801 (2021) (“[T]he ability to

effectuate a partial remedy satisfies the redressability

requirement.” (quotation marks and citation omitted)).

Falcone requested both monetary damages and injunctive

relief, seeking to prevent the defendants from (1) threatening

arrest, summons, or complaint to people attending in-person

Board meetings and exercising their “constitutional rights,” (2)

threatening, intimidating, or coercing him or any other person

“in an attempt to chill the[ir] First Amendment rights,” and (3)

18

taking further retaliatory action against him. See Falcone App.

20-21.

The District Court correctly held that Falcone is not

entitled to injunctive relief, and he conceded as much at oral

argument. Our basis, however, parts from that of the Court. It

denied this relief because “an injunction directed at Defendants

would not enjoin the Governor from implementing or

enforcing a mask mandate.” Falcone App. 9. As noted,

Falcone is not challenging the mask requirement or requesting

an injunction barring its enforcement. For the sake of

completeness, the relief he sought is improper, first, because

all his injunctive requests are impermissibly overbroad “obey-

the-law” orders, which are unenforceable for lack of

specificity. See, e.g., Belitskus v. Pizzingrilli, 343 F.3d 632,

650 (3d Cir. 2003). Second, Falcone has alleged no facts on

the Freehold Defendants’ intent to engage in the challenged

conduct again. Without showing a likelihood or immediate

threat of future harm, a plaintiff cannot obtain standing for

prospective relief. Brown v. Fauver, 819 F.2d 395, 400 (3d

Cir. 1987) (citing City of Los Angeles v. Lyons, 461 U.S. 95,

105 (1983)).

As Falcone observes, however, he also seeks money

damages for his past injuries. Falcone App. 20-21; Reply Br.

6. That his alleged injuries are difficult to quantify is

irrelevant. In a § 1983 case, where the plaintiff’s rights were

violated but the violation did not result in any injury calling for

compensatory damages, a request even for “nominal damages

satisfies the redressability element of standing.” Uzuegbunam,

141 S. Ct. at 801-02. Falcone’s monetary damages claim

suffices to establish redressability, and it survives.

19

Falcone has shown all three elements of standing by

alleging he received a criminal summons and was deprived of

his right to speak in retaliation for exercising his First

Amendment rights. The District Court erred in dismissing his

claims for lack of standing. Accordingly, we reverse and

remand for it to consider the Freehold Defendants’ Rule

12(b)(6) arguments in the first instance. See Shorter v. United

States, 12 F.4th 366, 375 n.9 (3d Cir. 2021) (“[I]n the absence

of exceptional circumstances, we decline to consider an issue

not passed upon below.”). This is not to say, of course, that

Falcone’s claims are likely to survive. On remand, the District

Court may wish to consider, for example, if Falcone has

forfeited any theory that the “constitutionally protected

conduct” undergirding his First Amendment retaliation claim

is something other than his refusal to wear a mask. Arguably

he did, as he repeatedly claimed that “not wearing a mask is

politically protected freedom of speech” and that he was

“retaliated against for actions which were akin to pure speech.”

Dist. Ct. Dkt. 9 at 10; Dkt. 13 at 8.

B. Murray Nolan - First Amendment Retaliation

Murray-Nolan’s amended complaint survived the

Cranford and BOE Defendants’ attack for lack of standing, and

correctly so.7 But the District Court dismissed her First

7

The BOE Defendants challenge the District Court’s standing

analysis, claiming Murray-Nolan’s injuries are (1) not

traceable to them but instead to the Governor, and (2) not

redressable by an injunction. We disagree with the first

argument for the reasons just stated. We agree with the BOE

Defendants (as did the District Court) that Murray-Nolan is not

20

Amendment retaliation claim under § 1983 and the NJCRA for

failing to allege constitutionally protected conduct, a

component of such a claim.

To prevail, Murray-Nolan must establish that (1) she

engaged in conduct protected by a right in the Constitution, (2)

the Cranford Defendants “engaged in retaliatory action

sufficient to deter a person of ordinary firmness from

exercising [her] constitutional rights,” and (3) a “causal link”

existed between the protected activity and the retaliatory

action. Palardy v. Township of Millburn, 906 F.3d 76, 80-81

(3d Cir. 2018) (quotation marks and citation omitted).8

Ordinarily, Murray-Nolan would need to demonstrate at the

outset that all defendants are “state actors” because § 1983

authorizes suits for violation of federal rights only against

entitled to injunctive relief though, as explained, she is entitled

to monetary damages and so has standing to sue.

We decline to consider Murray-Nolan’s argument

raised in her reply brief that the District Court erred in holding

she was not entitled to injunctive relief because she never

raised it in her opening brief. See Garza v. Citigroup Inc., 881

F.3d 277, 284-85 (3d Cir. 2018). But we understand from our

exchange with counsel during oral argument that Murray-

Nolan concedes she is not entitled to the relief she requested.

Oral Argument at 1:26:15-27:41.

8

As noted, Murray-Nolan asserts a First Amendment

retaliation claim under both § 1983 and the NJCRA, New

Jersey’s state-law analogue. N.J. Stat. Ann. § 10:6-2(c).

Because the NJCRA is interpreted analogously to § 1983, our

analysis applies equally to that statute. See Perez v. Zagami,

LLC, 94 A.3d 869, 877 (N.J. 2014); Filgueiras v. Newark Pub.

Schs., 45 A.3d 986, 997 (N.J. Super. Ct. App. Div. 2012).

21

persons or entities who acted “under color of law.” See 42

U.S.C. § 1983; Groman v. Township of Manalapan, 47 F.3d

628, 638 (3d Cir. 1995). In limited circumstances, even private

parties like the Attorney Defendants here may be treated as

state actors. See Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n, 531 U.S. 288, 295 (2001). They dispute their

status as such. Although it is not obvious to us that their actions

meet that threshold, we assume for purposes of our analysis

that they do.

The District Court, as noted, held that Murray-Nolan’s

First Amendment claim faltered by failing to show that her

refusal to wear a mask was constitutionally protected conduct.

She argues the Court erred because it “fail[ed] to analyze the

retaliatory nature of her arrest” and to “recognize that the

nature of [her] First Amendment protest was well known to all

defendants.” Appellant Br. 23. But of course the District Court

was not required to address those issues after finding Murray-

Nolan’s conduct was not constitutionally protected.

To be sure, the First Amendment protects not only “the

spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404

(1989). It also applies to some conduct in some settings, as

circumstances matter. See United States v. O’Brien, 391 U.S.

367, 376 (1968). The Supreme Court has limited First

Amendment protections to what it has called “inherently

expressive” conduct. FAIR, 547 U.S. at 66. To qualify, an

action must satisfy two elements: the actor must “inten[d] to

convey a particularized message,” and there must be a high

“likelihood” that “the message [will] be understood by those

who view[] it.” Johnson, 491 U.S. at 404 (quoting Spence v.

22

Washington, 418 U.S. 405, 410-11 (1974)).9 The first element

does not pose a high bar, but the second is trickier. That is so

because a viewer must be able to understand the message from

the conduct alone. See FAIR, 547 U.S. at 66. If some

“explanatory speech is necessary,” the conduct does not

warrant protection; otherwise, a party “could always transform

conduct into ‘speech’ simply by talking about it.” Id.

Hence context comes into play. See Spence, 418 U.S.

at 410. It is what separates activity that is sufficiently

expressive from similar activity that is not. For example, the

burning of the American flag in Johnson was expressive

because it occurred during a “political demonstration” against

President Reagan’s policies. 491 U.S. at 405-06. Likewise,

the taping of a peace sign to the American flag in Spence was

expressive because it was “roughly simultaneous with and

concededly triggered by the Cambodian incursion [during the

Vietnam conflict] and the Kent State tragedy.” 418 U.S. at

410. And in Tinker, students’ wearing of black armbands to

protest American military involvement was expressive because

it “conveyed an unmistakable message about a

contemporaneous issue of intense public concern—the

Vietnam hostilities.” Id. (citing Tinker v. Des Moines Indep.

Cmty. Sch. Dist., 393 U.S. 503, 505 (1969)).

9

Paradigms of protected conduct-based speech are the burning

of the American flag as part of a political demonstration, see

id. at 404-06, students’ wearing of black armbands to protest

American military involvement in Vietnam, see Tinker v. Des

Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969), and

sit-ins by black persons in “whites only” areas to protest racial

segregation, see Brown v. Louisiana, 383 U.S. 131, 141-42

(1966).

23

Against this backdrop, we consider whether the First

Amendment protects Murray-Nolan’s refusal to wear a

COVID mask at a Board meeting when doing so was required

by an Executive Order implemented by Board policy. The first

element—the intent to convey a particularized message—is

easily met here. Murray-Nolan alleged she refused to wear a

mask to “silent[ly] protest” the Board and Superintendent’s

“lack of action related to unmasking children in schools,

particularly those with medical conditions and special needs.”

Appellant Br. 6-7; Murray-Nolan App. 39, 79; see also

Appellant Br. 8, 23. Her mask refusal, she explains, was a sign

of “solidarity with all such children in protesting the Board’s

violation of their civil rights.” Appellant Br. 8.

But Murray-Nolan cannot satisfy the second element

because it is unlikely that a reasonable observer would

understand her message simply from seeing her unmasked at

the Board meeting. She claims that, “in the then-existing

political climate[,] refusing to wear a mask itself was an overt

political statement.” Appellant Br. 6. We have no doubt that,

during the pandemic, some people refused to wear a mask to

send a political message. But the problem for Murray-Nolan

is that going maskless is not usually imbued with symbolic

meaning. The Governor’s Executive Order, for example,

exempted individuals from the masking requirement for

medical reasons. How would attendees know that Murray-

Nolan was unmasked not because she was medically exempt

but because she intended to express her dismay with the

Board’s inaction related to unmasking of school children?

They wouldn’t, unless they were aware of her vocal protests

predating her maskless appearance at the meeting. She

concedes as much by contending that Defendants “knew why

[she] engaged in a long-standing silent protest” because of her

24

“vocal protests through her speeches about their inaction.”

Appellant Br. 20. Furthermore, how would attendees know

what “particularized message” Murray-Nolan sent by refusing

to wear a mask? Was it general defiance of the government?

Skepticism toward government health experts? Opposition to

the Governor’s mask mandate? Or, as she alleges, opposition

to the Board’s and Superintendent’s “lack of action related to

unmasking children in schools, particularly those with medical

conditions and special needs”? Murray-Nolan App. 79.

Again, her message was susceptible to multiple interpretations,

and understanding it required additional “explanatory speech.”

FAIR, 547 U.S. at 66.

Unlike burning a flag, wearing a medical mask—or

refusing to do so—is not the type of thing someone typically

does as “a form of symbolism.” Spence, 418 U.S. at 410. The

American flag is inherently symbolic. See Johnson, 491 U.S.

at 405. A medical mask is not. It is a safety device—

“protective equipment” used “to protect the wearer from

particles or from liquid contaminating the face.” N95

Respirators, Surgical Masks, Face Masks, and Barrier Face

Coverings, FDA (Mar. 10, 2023), https://perma.cc/E8FM-

2M2K. To combat COVID-19, people wear it to curb the

spread of an airborne disease. Skeptics are free to—and did—

voice their opposition through multiple means, but disobeying

a masking requirement is not one of them. One could not, for

example, refuse to pay taxes to express the belief that “taxes

are theft.” Nor could one refuse to wear a motorcycle helmet

as a symbolic protest against a state law requiring them. The

binary choice envisioned by Murray-Nolan—either disobeying

the Executive Order mandating the wearing of a protective

mask or not speaking at all—is a false one. See Appellant Br.

25

30-31. We thus agree with the District Court that her refusal

to wear a mask was not constitutionally protected.10

10

Every court to address the issue has reached the same

conclusion. See, e.g., Denis v. Ige, 538 F. Supp. 3d 1063, 1079

(D. Haw. 2021) (Hawaii mask mandate did not infringe on

First Amendment freedom of speech because it targeted

“conduct” rather than “speech”; “wearing a mask in public . . .

does not include a significant expressive element”); Stewart v.

Justice, 502 F. Supp. 3d 1057, 1066 (S.D. W. Va. 2020)

(“[A]lthough Plaintiffs feel that refusing to wear a face

covering expresses ‘nonconformity with unconstitutional and

un-American laws,’ that meaning is not ‘overwhelmingly

apparent.’” (citation omitted)); Minn. Voters All. v. Walz, 492

F. Supp. 3d 822, 837-38 (D. Minn. 2020) (“[T]he conduct [of

not wearing a face mask] is not inherently expressive . . . .

Absent explanation, the observer would not know whether the

person is exempt from [the Executive Order], or simply forgot

to bring a face covering, or is trying to convey a political

message.”); Antietam Battlefield KOA v. Hogan, 461 F. Supp.

3d 214, 237 (D. Md. 2020) (“[E]specially in the context of

COVID-19, wearing a face covering would be viewed as a

means of preventing the spread of COVID-19, not as

expressing any message.”), appeal dismissed, No. 20-1579,

2020 WL 6787532 (4th Cir. July 6, 2020), and aff’d in part,

appeal dismissed in part, No. 20-2311, 2022 WL 1449180 (4th

Cir. May 9, 2022); Zinman v. Nova Se. Univ., Inc., No. 21-CV-

60723, 2021 WL 4025722, at *13 (S.D. Fla. Aug. 30, 2021)

(“[N]either wearing or not wearing a mask is inherently

expressive. In the context of COVID-19, wearing a mask does

not evince an intent to send a message of subservience to

authority – or any message at all.”), report and

26

To the extent Murray-Nolan’s First Amendment

retaliation claim is based on a different theory—that she was

punished for some other protected conduct—we deem that

argument forfeited. To be sure, in addition to claiming that her

recommendation adopted sub nom. Zinman v. Nova Se. Univ.,

No. 21-CIV-60723, 2021 WL 4226028 (S.D. Fla. Sept. 15,

2021), aff’d sub nom. Zinman v. Nova Se. Univ., Inc., No. 21-

13476, 2023 WL 2669904 (11th Cir. Mar. 29, 2023); Whitfield

v. Cuyahoga Cnty. Pub. Libr. Found., No. 21 CV 0031, 2021

WL 1964360, at *3 (N.D. Ohio May 17, 2021) (“[W]earing a

mask is not a symbolic or expressive gesture. It is a health and

safety measure put into effect in many public establishments to

prevent the spread of COVID-19 to employees and other

patrons.”); Nowlin v. Pritzker, No. 20-CV-1229, 2021 WL

669333, at *5 (C.D. Ill. Feb. 17, 2021) (“Plaintiffs challenge

orders that regulate non-expressive conduct such as keeping

certain distance[s], wearing masks, and limiting gathering

sizes. These activities are not speech[,] and regulations that

govern non-expressive conduct do not bring the First

Amendment into play.”), aff’d as modified, 34 F.4th 629 (7th

Cir. 2022); Reinoehl v. Whitmer, No. 21-CV-61, 2022 WL

1110273, at *3 (W.D. Mich. Feb. 3, 2022) (rejecting claim that

“refusal to comply with [Michigan’s Face Mask Order]

constitutes symbolic speech”), report and recommendation

adopted, No. 21-CV-61, 2022 WL 855266 (W.D. Mich. Mar.

23, 2022), aff'd, No. 22-1343, 2023 WL 3046052 (6th Cir. Apr.

17, 2023), cert. denied, No. 23-89, 2023 WL 6378554 (U.S.

Oct. 2, 2023); see also Sehmel v. Shah, 514 P.3d 1238, 1243-

44 (Wash. Ct. App. 2022) (“[W]earing or not wearing a mask

is not sufficiently expressive so as to implicate First

Amendment protections. . . . [T]here is a host of reasons why a

person may not be wearing a mask.”).

27

conduct constituted protected speech, Murray-Nolan also

alleged she was engaged in other types of speech—for

example, her testimony about mask injuries before the State

Assembly and Senate, “countless social media posts” related

to “the harm to her own children, and to children generally,

from masking in schools,” and her filing of a complaint against

the Board, Murray-Nolan App. 84, 87—but she never ties that

speech to Defendants’ allegedly retaliatory arrest. Rather, she

alleged that, because of her other speech, Defendants

understood the nature of her protest. See, e.g., Murray-Nolan

App. 84, 88, 90. The only form of “speech” she links to her

arrest is her refusal to wear a mask. See Murray-Nolan App.

90 (alleging she was arrested under the guise of a “rule of the

building” for “making a constitutionally protected political

statement by not wearing a mask”); Murray-Nolan App. 91

(alleging Defendants had a “pre-planned” agreement “that the

Plaintiff should be arrested if she did not comply with

[Sciarrillo’s] command to wear a mask”).

Furthermore, in response to Defendants’ motions to

dismiss, Murray-Nolan squarely argued her “constitutionally

protected activity” underlying her First Amendment retaliation

claim was her “not wearing a mask.” See Dist. Ct. Dkt. 13 at

16, Dkt. 30 at 21; Dkt. 39 at 16. That is why the District Court

dismissed her claim for failing to allege she was engaged in

conduct accorded First Amendment protection.

On appeal, Murray-Nolan never argued the District

Court somehow misread her allegation. Instead, she disagrees

with its holding. For instance, she claims “not wearing a mask

was politically protected free speech,” especially “in the then-

existing political climate,” and contends “not wearing a mask

in a public meeting” “touched upon” core First Amendment

28

speech concerning “politics, nationalism, religion, or other

matters of opinion.” Appellant Br. 6, 13, 26 (citation omitted).

She repeatedly refers to her “First Amendment protest” or

“First Amendment rights to protest.” Id. at 28. Murray-Nolan

quibbles with the District Court’s reasoning that her refusal to

wear a mask was not “inherently expressive” by pointing to her

“‘overwhelmingly apparent’ speech that had been ongoing in

multiple forums for months,” claiming that her masklessness

“was overtly political and was intentional and was

overwhelmingly apparent.” Id. at 30. She also argues that

being maskless at the meeting was the only way she could

express her views—“being unmasked on a video screen from

her home was o[f] no value to [her] protest and would have

defeated it altogether.” Id. at 31.

These arguments carry over in Murray-Nolan’s reply

brief. “[T]he Board,” she argues, “made clear that they would

retaliate against [her] for not wearing a mask.” Reply Br. 4.

She reiterates “she was engaged in a constitutionally protected

free speech protest,” “had a right to be in the Board Room

without a mask since she was engaged in a constitutionally

protected protest,” and “was arrested while admittedly . . .

exercising constitutional rights.” Id. at 13. The brunt of her

argument thus rests on defending her position that her maskless

protest was protected speech and claiming that Defendants

were aware of the nature and purpose of that protest. See

Appellant Br. 6-7, 20, 22.

We recognize Murray-Nolan also makes stray

references to other forms of speech as she did in her amended

complaint. See Appellant Br. 21-22, 27-28. But we are not

convinced that she now presses a new theory of protected

conduct. Indeed, our exchange with counsel for Falcone and

29

Murray-Nolan during oral argument dispelled any doubt we

might have had. When asked, “What is the constitutionally

protected activity that you are telling us exists here?,” counsel

responded: “We have a right to come in unmasked, it’s

symbolic speech to protest the masking policies that were in

place.” Oral Argument at 8:30-43.

Even assuming Murray-Nolan now claims she was

retaliated against for being a vocal critic of the Board and its

policies, she forfeited that argument because she never raised

it in the District Court. See United States v. Dowdell, 70 F.4th

134, 141 (3d Cir. 2023). Our forfeiture doctrine “protect[s]

litigants from unfair surprise[,] promot[es] the finality of

judgments[,] conserv[es] judicial resources[,] and prevent[s]

district courts from being reversed on grounds that were never

urged or argued before [them].” Id. (final alteration in original)

(quoting Webb v. City of Philadelphia, 562 F.3d 256, 263 (3d

Cir. 2009)). These interests are directly implicated here, where

Defendants staked their defense, and the District Court ruled,

on Murray-Nolan’s announced theory that Defendants

retaliated against her for refusing to wear a mask. Though we

have discretion to reach forfeited issues, we see no “truly

‘exceptional circumstances’” that would excuse forfeiture

here. Barna v. Bd. of Sch. Dirs. of the Panther Valley Sch.

Dist., 877 F.3d 136, 146-47 (3d Cir. 2017) (citation omitted).

Because Murray-Nolan failed to allege that she was

engaged in constitutionally protected conduct, the District

Court properly dismissed her First Amendment retaliation

claim under § 1983 and the NJCRA, and we affirm on that

basis alone. But even if we assume she properly pled that her

arrest resulted from engagement in other constitutionally

protected speech—be that filing a lawsuit against the Board,

30

“public writings,” or “vocal” opposition to the Board’s

actions—her First Amendment retaliation claim still cannot

succeed.

As noted, Murray-Nolan also must show that

Defendants engaged in “retaliatory action” and “a causal link”

exists between the protected conduct and the retaliatory action.

Palardy, 906 F.3d at 80-81. She identifies two “retaliatory

actions”: her arrest and the Board’s cancellation of the January

24, 2022, meeting.11 We address each in turn.

There is no dispute that an arrest constitutes conduct

“sufficient to deter a person of ordinary firmness from

exercising [her] constitutional rights.” Id. (quoting Thomas v.

Independence Township, 463 F.3d 285, 296 (3d Cir. 2006)).

But the existence of probable cause “generally defeat[s] a First

Amendment retaliatory arrest claim.” Nieves v. Bartlett, 139

S. Ct. 1715, 1726 (2019). The District Court found, and we

agree, that the Police Defendants had probable cause to arrest

Murray-Nolan for defiant trespass under N.J. Stat. Ann.

§ 2C:18-3b. Murray-Nolan App. 28-29. That subsection

11

As we read her briefs, the only retaliatory action she

identifies is her arrest. See Appellant Br. 32 (“[D]efendants

took action which would deter a person of ordinary firmness

from engaging in such protected conduct[.] . . . Permitting

defendants to silence Ms. Murray-Nolan with an arrest is to

permit the defeat of the First Amendment[.]”); see also id. at

36-38 (arguing “false arrest” claim against Police Defendants).

At oral argument, however, counsel asserted that Murray-

Nolan also claimed the Cranford Defendants retaliated against

her by canceling the Board meeting, thereby preventing her

from speaking. Oral Argument at 52:48-53:30.

31

makes it illegal to knowingly “enter[] or remain[] in any place

as to which notice against trespass is given by . . . [a]ctual

communication to the actor [or] [p]osting in a manner

prescribed by law or reasonably likely to come to the attention

of intruders.” N.J. Stat. Ann. § 2C:18-3b. Murray-Nolan was

repeatedly instructed to comply with the masking policy and

informed that the Board would call in law enforcement if she

entered the building maskless. The Board also published a

statement on Facebook after the January 24 meeting (which

Murray-Nolan read) requesting compliance with the masking

policy, and the Superintendent sent an email (which Murray-

Nolan also read) explicitly referring to the Board’s policy

permitting it to “request[] . . . assistance from law enforcement

officers in the removal of a disorderly person when that person

prevents or disrupts a meeting.” Murray-Nolan App. 105, 108-

09. Prior to Murray-Nolan’s arrest, furthermore, a police

officer again reminded her that she “must wear a mask” and

that refusing to do so violated a “rule of the building.” Murray-

Nolan App. 90.

Murray-Nolan knew she was violating a well-

publicized masking policy and could not attend the Board

meeting without a mask, but she did so anyway. The police

thus had ample reason to arrest her for defiant trespass. See

Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir. 2003)

(probable cause exists where “facts and circumstances within

the officer’s knowledge” are “sufficient to warrant a prudent

person . . . in believing . . . that the suspect has committed, is

committing, or is about to commit an offense” (quoting

Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). Murray-

Nolan’s response, that the arresting officer allegedly agreed

“she was engaged in a constitutionally protected free speech

protest,” Reply Br. 13, is unavailing because the officer’s

32

subjective beliefs are “simply ‘irrelevant’” and provide “no

basis for invalidating an arrest.” Nieves, 139 S. Ct. at 1725

(quoting Devenpeck v. Alford, 543 U.S. 146, 153, 155 (2004)).

Ordinarily, our conclusion that probable cause existed

would doom Murray-Nolan’s retaliatory arrest claim.

However, in Nieves the Supreme Court carved out a narrow

exception to that general rule. See id. at 1727. A plaintiff need

not establish the absence of probable cause “where officers

have probable cause to make arrests, but typically exercise

their discretion not to do so.” Id. For this exception to apply,

a plaintiff must present “objective evidence that [she] was

arrested when otherwise similarly situated individuals not

engaged in the same sort of protected speech had not been.”

Id. The Supreme Court provided the example of jaywalking,

which “is endemic but rarely results in arrest.” Id. Thus, “[i]f

an individual who has been vocally complaining about police

conduct is arrested for jaywalking,” the claim should not be

dismissed despite the existence of probable cause because,

“[i]n such a case, . . . probable cause does little to prove or

disprove the causal connection between animus and injury.”

Id.

In her reply brief, Murray-Nolan contends that Nieves’s

narrow exception applies because “people similarly situated as

[her] were not arrested for attending board meetings unmasked

when they were not necessarily long-standing anti-mask

protestors for children in schools.” Reply Br. 15. That

conclusory statement is not supported by any facts pled in her

amended complaint. Murray-Nolan never alleged selective

enforcement or any facts sufficient to demonstrate a “facial

plausibility” that police commonly see violations of masking

33

mandates and fail to make arrests. Ashcroft, 556 U.S. at 678.

Nor did she advance this argument in the District Court.

If she asks us to infer an allegation of selective

enforcement from her assertion that, at the first Board meeting,

others allegedly “removed their masks in solidarity with [her],”

Murray-Nolan App. 80, there is a temporal disconnect.

Murray-Nolan was not then singled out among other maskless

attendees. Rather, she was arrested after she tried to attend the

second Board meeting without a mask (following multiple

explicit warnings that doing so was prohibited). And she

nowhere claims that anyone else defied the Board’s

instructions and attended the second meeting without a mask.

All we can discern from her amended complaint is that one,

and only one, individual—Murray-Nolan—repeatedly

disregarded the masking mandate and was eventually arrested

for doing so. She thus cannot find refuge in Nieves’s

exception.

So we turn to her argument that the Cranford

Defendants retaliated against her by canceling the January 24

meeting, where Murray-Nolan made her first maskless

appearance. At the outset, we note that she has no retaliation

claim against the Police Defendants because she does not

allege they played any role in the Board’s decision to cancel

the meeting. Instead, she claims the Board and Attorney

Defendants did so, thereby depriving her of a forum to exercise

her right to speak.

We assume the meeting cancellation is “sufficient to

deter a person of ordinary firmness from exercising [her]

constitutional rights” and focus our analysis on the third prong

of the analytical framework: whether Murray-Nolan has

34

demonstrated the necessary causal link between the

constitutionally protected conduct and the retaliatory action.

Palardy, 906 F.3d at 80-81. We have recognized that protected

activity close in time to the alleged retaliatory action may

indicate one caused the other. See Thomas v. Town of

Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (“[A]

suggestive temporal proximity between the protected activity

and the alleged retaliatory action can be probative of

causation.”).

Murray-Nolan does not attempt to explain how her

“other” protected conduct is linked to the Board’s decision to

cancel the January 24 meeting. That makes sense because, as

noted, she consistently claimed the Cranford Defendants

retaliated against her for refusing to wear a mask, not for

engaging in constitutionally protected speech. In any event,

there is no temporal proximity or any other causal link here, no

matter which activity we consider.

It appears the cancellation of the January 24 meeting

had nothing to do with Murray-Nolan’s lawsuit against the

Board and its attorneys, which she filed on February 14, 2022,

roughly three weeks after the meeting was suspended. As for

her “public writings” and other “vocal” criticism—e.g., her

testimony before the state legislature, her social media posts,

and her prior speeches at Board meetings—the amended

complaint is silent as to their timing. But even assuming these

alleged protected activities occurred just before the January 24

meeting, there is an obvious break in the chain of causation:

Murray-Nolan’s refusal to wear a mask at that meeting. That

act is not constitutionally protected conduct and thus provides

a straightforward, non-retaliatory explanation for the Board’s

decision to cancel the session. See Lamont v. New Jersey, 637

35

F.3d 177, 185 (3d Cir. 2011) (“A superseding cause breaks the

chain of proximate causation.”). Nothing in the record would

allow Murray-Nolan to establish the constitutional causation

necessary for her retaliation claim. We affirm the District

Court’s order on that alternative basis.

*****

The plaintiffs allege they were punished in retaliation

for refusing to wear a COVID-protective mask at Board of

Education meetings. Falcone claims he received a criminal

summons after exercising his First Amendment right to protest,

maskless, at a Freehold Township Board meeting and also was

deprived of an opportunity to speak when the Board canceled

a subsequent meeting. His alleged injuries, at least in part, are

directly traceable to the Freehold Defendants, who allegedly

conspired to violate his First Amendment right to engage in

political and symbolic speech. Because the District Court

dismissed his complaint for lack of standing, and this was the

only basis for its order, we reverse and remand for further

proceedings consistent with this opinion.

Murray-Nolan contends she was arrested for exercising

her right to engage in a maskless, symbolic protest at a

Cranford Township Board meeting. Though she had standing

to sue the Cranford and BOE Defendants, her First

Amendment retaliation claim cannot survive their motions to

dismiss. Amid valid government-mandated health and safety

measures, refusing to wear a face mask is not expressive

conduct protected by the First Amendment. Murray-Nolan’s

retaliation claim also fails because the police had probable

cause to arrest her, and she does not link her constitutionally

protected speech activities (e.g., her social media posts) to any

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of the Cranford Defendants’ allegedly retaliatory actions. We

thus affirm the District Court’s dismissal of her amended

complaint.

37