Petition for Writ of Certiorari — Kari MacRae, Petitioner v. Matthew Mattos, et al.

No. _____

IN THE

Supreme Court of the United States

_________

KARI MACRAE,

v.

Petitioner,

MATTHEW MATTOS, ET AL.,

Respondents,

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

_________

PETITION FOR WRIT OF CERTIORARI

_________

MICHAEL BEKESHA

Counsel of Record

JUDICIAL WATCH, INC.

425 Third Street, S.W.

Suite 800

Washington, DC 20024

(202) 646-5172

mbekesha@judicialwatch.org

Counsel for Petitioner

Dated: September 26, 2024

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

QUESTION PRESENTED

Hanover Public Schools fired Petitioner Kari

MacRae as a public-school math/business teacher

because of hot-button political speech she had posted

on social media before she was hired by the school

district. The lower courts upheld her firing by

applying the balancing test for employee speech first

recognized in Pickering v. Board of Education of

Township High School District 205, Will County., 391

U.S. 563 (1968).

Since Pickering, the Court has sought to protect

the First Amendment rights of public employees

while ensuring government employers can perform

their important public functions. The Court has

applied the Pickering balancing test, which balances

those competing interests, to employee speech at work

or about work. The Court has not applied the test to

speech that occurred prior to an employee’s hiring and

unrelated to the job. The First Circuit did, however.

In doing so, it strayed from the Court’s jurisprudence,

created an unconstitutional condition, and has

deprived private citizens of their free speech rights

solely because they may decide to become publicschool teachers in the future.

The question presented is:

Does the Pickering balancing test apply to

unrelated, preemployment speech on matters of

public concern?

ii

PARTIES TO THE PROCEEDING

Petitioner Kari MacRae was the sole plaintiff

and appellant below. Respondents Matthew Mattos,

Matthew A. Ferron, and Hanover Public Schools were

the defendants and appellees below.

iii

STATEMENT OF RELATED PROCEEDINGS

This case is directly related to the following

proceedings:

MacRae v. Mattos, No. 21-11917 (D. Mass. Sept.

25, 2023)

MacRae v. Mattos, No. 23-181 (1st Cir. June 28,

2024)

iv

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

PARTIES TO THE PROCEEDING ........................... ii

STATEMENT OF RELATED PROCEEDINGS ...... iii

TABLE OF CONTENTS ........................................... iv

TABLE OF AUTHORITIES ..................................... vi

PETITION FOR WRIT OF CERTIORARI .................1

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

CONSTITUTIONAL PROVISIONS INVOLVED ......1

INTRODUCTION .......................................................1

STATEMENT OF THE CASE ....................................3

A.

Pickering and Its Progeny Apply to

Current Employee Speech .........................3

B.

MacRae Was Fired for Unrelated,

Preemployment Speech on Matters

of Public Concern .......................................6

C.

The Lower Courts Applied Pickering ........9

REASONS FOR GRANTING THE PETITION .......10

I.

The Petition Raises a Question

of Exceptional Importance for

Tens of Millions of Current and

Future Public-School Teachers................10

II.

This Case Presents an Ideal

Vehicle To Protect Unrelated,

Preemployment Speech on Matters

of Public Concern .....................................18

v

CONCLUSION ..........................................................19

vi

TABLE OF AUTHORITIES

Cases

Page(s)

Adler v. Bd. of Educ.,

342 U.S. 485 (1952) ...............................................12

Ams. for Prosperity Found. v. Bonta,

594 U.S. 595 (2021) ...............................................12

Bachellar v. Maryland,

397 U.S. 564 (1970) ...............................................16

Beilan v. Bd. of Pub. Educ.,

357 U.S. 399 (1958) .........................................12, 13

Branti v. Finkel,

445 U.S. 507 (1980) ...............................................14

City of San Diego v. Roe,

543 U.S. 77 (2004) ...............................................4, 5

Cleavenger v. Univ. of Oregon,

2015 U.S. Dist. LEXIS 102972,

Case No. 13-cv-1908-DOC

(D. Or. Aug. 6, 2015) .............................................10

Connick v. Myers,

461 U.S. 138 (1983) ........................... 1, 4, 13, 14, 15

Garcetti v. Ceballos,

547 U.S. 410 (2006) .........................................1, 3, 5

Givhan v. Western Line Consol. Sch. Dist.,

439 U.S. 410 (1979) .................................................4

Heffernan v. City of Paterson,

578 U.S. 266 (2016) .................................................5

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ...........................................6, 14

vii

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967) ...............................................13

Lane v. Franks,

573 U.S. 228 (2014) .............................................2, 5

Lee v. Weisman,

505 U.S. 577 (1992) ...............................................17

Matal v. Tam,

582 U.S. 218 (2017) ...............................................17

Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274 (1977) .......................4

Pappas v. Giuliani,

290 F.3d 143 (2nd Cir. 2002) ..........................17, 18

Pickering v. Bd. of Educ. of Twp.

High Sch. Dist. 205, Will Cty.,

391 U.S. 563 (1968) .........................................1, 3, 4

Rankin v. McPherson,

483 U.S. 378 (1987) .................................................4

Shelton v. Tucker,

364 U.S. 479 (1960) .........................................12, 13

Snyder v. Phelps,

562 U.S. 443 (2011) ...............................................17

Terminiello v. Chicago,

337 U.S. 1 (1949) ...................................................16

United States v. Nat'l Treasury

Emps. Union, 513 U.S. 454 (1995) .....................5, 6

United States v. Robel,

389 U.S. 258 (1967) ...............................................13

Waters v. Churchill,

511 U.S. 661 (1994) .................................................4

viii

Weiman v. Updegraff,

344 U.S. 183 (1952) ...............................................13

Other Authorities

National Center for Education Statistics,

https://nces.ed.gov/programs/coe/indicator/clr/publicschool-teachers#fr1 ...................................................10

Jacqueline Howard, “Social media and kids: What

age do they start?” CNN (June 22, 2018) .................10

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Kari MacRae submits this petition for

a writ of certiorari to review the judgment of the U.S.

Court of Appeals for the First Circuit.

OPINIONS BELOW

The First Circuit’s decision is reported at 106

F.4th 122 and reproduced at App. 1a-35a. The district

court’s summary judgment decision is not yet

available in the Federal Supplement but is available

at 2023 U.S. Dist. LEXIS 170146 and 2023 WL

6218158 and reproduced at App. 36a-72a.

JURISDICTION

The First Circuit issued its opinion on June 28,

2024. The Court has jurisdiction under 28 U.S.C. §

1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The First and Fourteenth Amendments to the

U.S. Constitution are reproduced at App. 73a-74a.

INTRODUCTION

For more than 50 years, public-school teachers

have enjoyed free speech rights with limitations. See

Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205,

Will Cty., 391 U.S. 563 (1968). Those limitations are

least restrictive when a teacher speaks as a private

citizen on a matter of public concern. See Garcetti v.

Ceballos, 547 U.S. 410, 419 (2006) (citing Connick v.

Myers, 461 U.S. 138, 147 (1983) (“Our responsibility

is to ensure that citizens are not deprived of

fundamental rights by virtue of working for the

government.”) When a teacher speaks as a private

citizen on a matter of public concern, her free speech

2

rights extend only as far as her interests in speaking

outweigh the interests of the school district. Id. The

Court has recognized that just like the teacher who

has a compelling interest to freely speak on “political

and social changes,” Lane v. Franks, 573 U.S. 228, 236

(2014), the school district has an interest in “the

effective and efficient fulfillment of their

responsibilities to the public, including efficiency and

integrity in the discharge of official duties and

maintaining proper discipline in public service.” Id.

at 242 (internal citations omitted).

This balancing test, known as Pickering

balancing, is both constitutionally consistent and

reasonably practicable when the speech is either at

work or about work. Every case decided by the Court

under Pickering has concerned such speech. The

Court has not decided a case in which a public

employee spoke as a private citizen on a matter of

public concern away from work and not about work.

In such an instance, the speech—at least

superficially—is still speech by a public employee.

Although the Court will likely be called upon to decide

what protections such speech demands, this is not

that case.

Here, MacRae spoke as a private citizen on a

matter of public concern before she applied to—let

alone was hired by—Hanover Public Schools. Her

speech was not at school because, obviously, it could

not have been. Nor was it about the school district or

its administrators, teachers, parents, or students. It

was not even about the town. In fact, it is undisputed

that MacRae’s speech falls squarely within the

Court’s category of private speech on matters of public

concern. App. 34a. Her speech added to the public

3

debate on immigration policy, racism, and gender

identity.

Yet the First Circuit applied the Pickering

balancing test because MacRae was eventually hired

by the school district. Had MacRae not decided to

become a public-school teacher, any adverse action

taken by the government against her—such as

arresting, fining, or revoking her license—would have

been indisputably unconstitutional.

Without a

compelling interest, the government cannot punish a

citizen for protected speech. See Pickering, 391 U.S.

at 574; Garcetti, 547 U.S. at 417. Why should tens of

millions of current and future public-school teachers

like MacRae not have the same constitutional

protections?

The Court should review and reverse the

decision below and protect the free speech rights of all

persons who aspire to become public-school teachers.

STATEMENT OF THE CASE

A.

Pickering and Its Progeny

Current Employee Speech.

Apply

to

Pickering is the seminal case addressing the

First Amendment rights of public employees to

comment on matters of public concern. The case

concerned a school board that dismissed a high school

teacher after the teacher—while employed by the

school district—wrote a letter to a local newspaper

criticizing the board’s allocation of school funds.

Pickering, 391 U.S. at 564-68. The teacher sued the

school, asserting that his letter was protected speech

under the First Amendment.

Id. at 565.

To

determine whether the firing violated the teacher’s

4

First Amendment rights, the Court sought to find a

balance “between the interests of the [public

employee], as a citizen, in commenting upon matters

of public concern and the interest of the State, as an

employer, in promoting the efficiency of the public

services it performs through its employees.” Id. at

568.

Since Pickering, each of the Court’s First

Amendment retaliation cases have concerned speech

at work or about work. Mt. Healthy City Sch. Dist.

Bd. of Educ. v. Doyle, 429 U.S. 274, 281-283 (1977)

(teacher not rehired because he had shared an

internal memorandum with a local radio station, had

made obscene gestures to students, and had argued

with other school employees); Givhan v. Western Line

Consol. Sch. Dist., 439 U.S. 410, 411-413 (1979)

(teacher fired for criticizing school policies and

practices in a private conversation with the

principal); Connick, 461 U.S. at 140-141 (assistant

district attorney fired for circulating a questionnaire

on internal office affairs within the workplace);

Rankin v. McPherson, 483 U.S. 378, 379-380 (1987)

(county clerical employee fired for remarking to

another employee at the office, “If they go for him

again, I hope they get him” after President Reagan

was shot); Waters v. Churchill, 511 U.S. 661, 664

(1994) (nurse fired because of a conversation with a

colleague that was overheard by other employees who

reported the conversation to their supervisor); City of

San Diego v. Roe, 543 U.S. 77, 78 (2004) (police officer

fired for selling videotapes of himself engaging in

sexually explicit acts while wearing the police

department’s uniform, for selling official police

department uniforms and men’s underwear on the

5

website, and for identifying himself as an employee of

that police department on the website); Garcetti, 547

U.S. at 413-415 (deputy district attorney subjected to

adverse employment actions for writing an internal

memorandum

to

his

supervisor

regarding

inaccuracies that he identified in an affidavit used to

obtain a search warrant); Lane, 573 U.S. at 231-235

(community college administrator fired for his

testimony at a criminal trial relating to the college);

Heffernan v. City of Paterson, 578 U.S. 266 (2016)

(police officer demoted because of the factually

mistaken belief that the officer supported a particular

mayoral candidate).

In addition, the Court in United States v. Nat'l

Treasury Emps. Union, 513 U.S. 454 (1995) resolved

a dispute concerning employee speech outside the

typical post-hoc challenge to a disciplinary action.

Certain federal government employees challenged the

constitutionality of a federal statute prohibiting them

from accepting compensation for speeches and

articles. Id. at 461. The Court explained that the

government’s burden to justify the ban was heavier

than the burden in the Pickering line of cases

involving disciplinary action because the ban was a

statutory restriction that chilled potential protected

speech before it happened. Id. at 466. Because the

ban implicated speech on matters of public concern

unrelated to government employment, and which

took place outside of the workplace, the ban could not

be justified on the grounds of workplace disruption.

Id. at 470. Nor had the government provided evidence

that the ban, as applied to the plaintiffs’ employment

classification, furthered its other purported interests.

Id. at 472-74. The statutory ban was therefore

6

unconstitutional as to the classification of employees.

Id. at 477, 480.

Most recently, the Court relied in part on

Pickering and its progeny in deciding Kennedy v.

Bremerton Sch. Dist., 597 U.S. 507 (2022). There, a

high school football coach sued a school district after

it suspended him for quietly praying at midfield after

games. Id. at 514-520. Both parties agreed that the

praying implicated a matter of public concern, and the

Court determined that the coach did not pray

pursuant to his official duties. Id. at 528-30.

In each of these cases, the Court was asked to

balance the interest of the employee with that of the

employer because of speech that occurred either at

work or was about work. None of the cases concerned

the type of speech at issue here.

B.

MacRae

Was

Fired

for

Unrelated,

Preemployment Speech on Matters of

Public Concern.

In March 2021, Petitioner Kari MacRae, a

resident of Bourne, Massachusetts, ran for a seat on

the Bourne School Committee.

App. 5a.

She

subsequently filed the necessary paperwork, and her

name was placed on the May 2021 ballot. Id. On May

17, 2021, she won her election and was sworn in as a

school committee member the next day. App. 6a.

Previously in March 2021, MacRae posted four

memes to TikTok. App. 4a-5a. She posted another

one in August 2021. Id. A sixth meme was posted by

another TikTok user and referenced MacRae’s

username. Id. If other users searched for MacRae’s

username, that sixth meme would appear. Id.

7

In addition, on May 17, 2021 (election day),

MacRae posted a campaign video on TikTok

explaining why she ran for a school committee seat

and the issues she hoped to address if she were to be

elected.

Id.

All posts were made under the

pseudonymous username “nanamacof4.” Id. The

“nanamacof4” profile did not identify MacRae by

name. Id. Nor was it associated with her regular

email address. Nor did it identify any of MacRae’s

past, current, or future employers. Id. In fact, had

MacRae not used her pseudonymous TikTok account

to post her campaign video, the public would have

8

most likely never learned that MacRae posted the

memes in question. Id.

At the end of August 2021more than five months

after she posted the first four memes and more than

three months after she posted the campaign video–

MacRae was hired as a math/business teacher at

Hanover High School (a different school district from

where she was a school committee member). App. 6a.

The Cape Cod Times and the Boston Globe, in

September 2021, wrote articles about MacRae’s social

media posts as they related to her elected position as

a Bourne School Committee member. App. 8a-9a.

None of the articles referenced Hanover Public

Schools or that MacRae was a teacher at Hanover

High School. Id.

After the articles were seen by Hanover High

School Principal Matthew Mattos, Hanover Public

Schools Superintendent Matthew Ferron, and

Hanover Public Schools Curriculum Director

Matthew Plummer, MacRae was placed on

administrative leave, and a purported five-day

investigation took place. App. 9a. During this period,

no Hanover student nor any parent of a Hanover

student raised concerns about MacRae with any

Hanover Public Schools teacher, staff member, or

administrator. App. 10a-11a. Nor did any teacher or

administrator hear concerns from students or parents

about MacRae. Id. Similarly, no teacher raised

concerns about MacRae with any administrator

during the five-day investigation. Id. Nonetheless,

Ferron, Mattos, and Plummer fired MacRae on

September 29, 2021. App. 11a.

9

C.

The Lower Courts Applied Pickering.

MacRae sued Ferron, Mattos, and the school

district (collectively “Hanover Public Schools”) for

violating her First Amendment rights. Discovery

ensued, and Hanover Public Schools moved for

summary judgment.

Ap. 12a.

Ruling against

MacRae, the District Court concluded that Hanover

Public Schools had adduced ample evidence of the

potential for disruption, which justified MacRae’s

firing under the Pickering balancing test. App. 13a.

The Court also found that Mattos and Feron had

qualified immunity from suit. Id.

The First Circuit upheld the District Court’s

decision. App. 34a. The First Circuit concluded that

because “significant weight [is] afforded to a

government employer’s reasonable prediction of

disruption[,]” Hanover Public Schools “had an

adequate justification for treating MacRae differently

from any other member of the general public.” App.

33a-34a. The First Circuit then went on to conclude,

applying the Pickering balancing test, that the school

district’s interests outweighed MacRae’s interests

because MacRae’s “social media posts became the

subject of extensive media attention” in Bourne,

Massachusetts and “some Hanover High students

and teachers were aware of MacRae’s posts and were

discussing them.” Id.

10

REASONS FOR GRANTING THE PETITION

I.

The Petition Raises a Question of

Exceptional Importance for Tens of

Millions of Current and Future PublicSchool Teachers.

1.

There are approximately four million

public-school teachers in the United States. 1 There

are also tens of millions of persons who aspire to be

public-school teachers in the future. This case

concerns whether those individuals have the same

free speech rights as every other private citizen.

This question is not purely academic. It is real.

Social media use is now ubiquitous and, for many

users, begins as early as 12 years of age. 2 Further,

“speech from our past is more accessible than ever.”

Cleavenger v. Univ. of Oregon, 2015 U.S. Dist. LEXIS

102972, **26-27, Case No. 13-cv-1908-DOC (D. Or.

Aug. 6, 2015). Without the Court resolving this issue,

future public-school teachers will have to choose

between self-censoring and risking termination from

their jobs at some undefined time in the future.

This issue is ripe for review because the First

Circuit wrongly applied the Pickering balancing test

to unrelated, preemployment speech. The court had

Characteristics of Public School Teachers, National

Center for Education Statistics, Sep. 24, 2024, at 1, available at

https://nces.ed.gov/programs/coe/indicator/clr/public-schoolteachers#fr1.

1

2

Jacqueline Howard, Social media and kids: What age

do they start?, CNN, June 22, 2018, available at

https://www.cnn.com/2018/06/22/health/social-media-for-kidsparent-curve/index.html).

11

four reasons for its application, all of which distorts

the Court’s intent in Pickering. App. 19a-20a. First,

the court concluded the “tried-and-true mode of

analysis for public employees” is appropriate because

the case concerns “a government employer firing its

public employee for their speech.” App. 20a. Second,

the court was concerned that by not applying the

Pickering balancing test, the public employer’s

interests would not be considered. Id. Third, the

court held that MacRae’s speech did not require

special consideration because it only occurred

months, not years, before she was hired by Hanover

Public Schools. App. 21a. Fourth, the court noted

that it “located only two cases involving alleged First

Amendment retaliation for pre-employment speech”

and that both of those cases applied the Pickering

balancing test. App. 22a.

Although each of these reasons are superficially

appealing, they are not substantively convincing with

the public’s free speech rights at stake. Although

MacRae was fired as a public-school teacher, she was

not a public-school teacher when she posted the

memes. Her speech at issue was not—nor could it

have been—employee speech but rather private

citizen speech. It is also irrelevant that the speech

occurred months or years before she was hired by the

school district. Either a private citizen has the

unadulterated right to speak on matters of public

concern or she does not. The right is fixed. It does not

swing based on temporal proximity. Similarly, rights

do not depend on the number of courts to have

addressed an issue, especially if both of those cases

were resolved by the district courts. Finally, although

the court’s concern for a public employer’s interests is

12

real, such concerns may be addressed by applying the

Court’s precedent concerning unconstitutional

conditions.

2.

Before Pickering, the Court was faced with

multiple cases concerning First Amendment activity

and public employees, especially public-school

teachers. In those cases, the Court recognized the

unique role that teachers play within the community.

It is indisputable that “[a] teacher works in a sensitive

area in a schoolroom. There he shapes the attitude of

young minds towards the society in which they live.”

Adler v. Bd. of Educ., 342 U.S. 485, 493 (1952). It is

also indisputable that school administrators may

“investigate the competence and fitness of those

whom it hires to teach in its schools.” Ams. for

Prosperity Found. v. Bonta, 594 U.S. 595, 608-609

(2021). Each school district determines competence

and fitness differently; however, the Court has held

that the school may determine competence and

fitness based on conduct outside the classroom

because “[f]itness for teaching depends on a broad

range of factors.” Beilan v. Bd. of Pub. Educ., 357

U.S. 399, 406 (1958). Still, the breadth of the school

district’s investigation into fitness and competence

must not be so wide as to create an unconstitutional

condition on private speech. See Shelton v. Tucker,

364 U.S. 479, 488 (1960) (“[E]ven though the

governmental purpose be legitimate and substantial,

that purpose cannot be pursued by means that

broadly stifle fundamental personal liberties when

the end can be more narrowly achieved.”).

In Beilan, the Court found those factors included

“immorality,

intemperance,

cruelty,

mental

derangement and persistent and willful violation of

13

the school laws.” 357 U.S. at 406. They also included

“afterhours activity [by a teacher] in her husband’s

beer garden, serving as a bartender and waitress,

occasionally drinking beer, shaking dice with the

customers for drinks and playing the pinball

machine[,]” and a teacher’s “deliberate and

insubordinate refusal to answer the questions of his

administrative superior in a vitally important matter

pertaining to his fitness.” Id. None of those factors

concern speech—let alone speech on matters of public

concern. Id. at 405. As the Court emphasized:

By engaging in teaching in the public

schools, petitioner did not give up his

right to freedom of belief, speech or

association. He did, however, undertake

obligations of frankness, candor and

cooperation in answering inquiries made

of him by his employing Board

examining into his fitness to serve it as

a public-school teacher.

Id. The Court’s cases from the McCarthy era

emphasize that public-school teachers do not forego

their First Amendment protections simply because

they became teachers. Any investigation into a

prospective public-school teacher’s private speech

must be for the sole purpose of determining her

competence and fitness for the position. Shelton, 364

U.S. at 488. This was true during the height of the

McCarthy era and should remain so today. See

Connick, 461 U.S. at 144-145; see also Weiman v.

Updegraff, 344 U.S. 183 (1952); Beilan, 357 U.S.

399; Shelton, 364 U.S. 479; Keyishian v. Bd. of

Regents, 385 U.S. 589 (1967); United States v. Robel,

389 U.S. 258 (1967).

14

Importantly, Pickering is rooted in these

McCarthy era cases. Connick, 461 U.S. at 144. (“In

all of these cases, the precedents in which Pickering

is rooted, the invalidated statutes and actions sought

to suppress the rights of public employees to

participate in public affairs.”). This line of precedent

establishes that the Constitution does not authorize

public employers to prevent or chill a citizen’s right to

participate in political affairs. Id. at 145. Prior to the

1960s, the concern was “subversion.” Id. Today,

public employers seek candidates that avow their

social philosophies. If the candidate does not, they are

neither fit nor competent. This cannot be what the

Constitution stands for.

3.

The basic principle underlying the

McCarthy era cases applies to speech, even though

those cases concerned a loyalty pledge, oath, or

membership and association disclosure. When the

government acts—whether through affirmative

legislation or after-the-fact retaliation—in response

to First Amendment-protected activity, such action

must be narrowly tailored to achieve a compelling

interest. Kennedy, 597 U.S. at 525 (“[T]his Court will

find a First Amendment violation unless the

government can satisfy ‘strict scrutiny’ by

demonstrating its course was justified by a

compelling state interest and was narrowly tailored

in pursuit of that interest.”).

In the public

employment context, the compelling interest is

whether the employee is competent and fit for the

position. See Branti v. Finkel, 445 U.S. 507, 518

(1980). School administrators can only account for

unrelated, preemployment speech if that speech

shows that the private citizen is not competent or fit

15

to be a public-school teacher. If the speech relates to

“any matter of political, social, or other concern to the

community,” it will be difficult to show that such

speech has any bearing whatsoever on competence or

fitness. Connick, 461 U.S. at 146. Most often, such

speech will be unequivocally protected by the Court’s

unconstitutional conditions doctrine.

The First Circuit ignored this line of cases and

focused exclusively on Pickering and its progeny,

which justify the limited scope of a private citizen’s

rights when she becomes a public-school teacher as a

necessary condition of her employment. Certainly,

public school administrators must have the ability to

effectively provide an education to their students.

But the Pickering balancing test cannot apply to

unrelated, preemployment speech on matters of

public concern without straying from the Court’s

precedent concerning private speech.

This is

demonstrated by how the First Circuit balanced the

competing interests of MacRae and the school district.

The First Circuit held that MacRae’s interest in

speaking as a private citizen on matters of public

concern before she was hired to teach at Hanover

High School was outweighed by the school district’s

“interest in preventing disruption to the learning

environment.” App. 33a-34a. The court also held that

no actual disruption was necessary. App. 28a. All

that was needed was a reasonable prediction of

disruption, and such disruption included media

attention stirred up by educators in a neighboring

town as well as “some” students and teachers

“discussing” MacRae’s posts at Hanover High School.

App. 33a-34a.

16

By allowing Hanover Public Schools to fire

MacRae based on that response to unrelated,

preemployment speech alone amounts to a heckler’s

veto—contrary to this Court’s warnings. Bachellar v.

Maryland, 397 U.S. 564, 567 (1970) (internal

quotations and citations omitted) (“[U]nder our

Constitution the public expression of ideas may not be

prohibited merely because the ideas are themselves

offensive to some of their hearers.”). Whether some

members of the public are offended by MacRae’s

speech has nothing to do with whether she is a fit and

competent teacher. As the Court has said, albeit in a

different context:

[A] function of free speech under our

system of government is to invite

dispute. It may best serve its high

purpose when it induces a condition of

unrest, creates dissatisfaction with

conditions as they are, or even stirs

people to anger.

Speech is often

provocative and challenging. It may

strike at prejudices and preconceptions

and have profound unsettling effects as

it presses for acceptance of an idea. That

is why freedom of speech, though not

absolute, is nevertheless protected

against censorship or punishment,

unless shown likely to produce a clear

and present danger of a serious

substantive evil that rises far above

public inconvenience, annoyance, or

unrest.

Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (internal

citations omitted). The First Circuit’s view that

17

MacRae’s unrelated, preemployment speech would

lead to a disruption—i.e., members of the public may

discuss the memes and their meaning—is exactly

what the First Amendment protects. Just because

MacRae became a public-school teacher months after

posting the memes on social media does not discount

the protected nature of her speech.

The Pickering balancing test also demands a

court to assign value to the speech itself. Here, the

First Circuit gave less protection to MacRae’s social

media posts because it found the memes to be

“mocking, derogatory, and disparaging.” App. 26a.

However, “speech concerning public affairs is more

than self-expression; it is the essence of self

government.” Snyder v. Phelps, 562 U.S. 443, 452

(2011). “Accordingly, speech on public issues occupies

the highest rung of the hierarchy of First Amendment

values, and is entitled to special protection.” Id. Even

speech that may be deemed offensive is protected.

Matal v. Tam, 582 U.S. 218, 223 (2017) (“Speech may

not be banned on the ground that it expresses ideas

that offend”). Indeed, “the proudest boast of our free

speech jurisprudence is that we protect the freedom

to express the thought that we hate.” Id. at 246

(cleaned up). This is especially true in the context of

education. “To endure the speech of false ideas or

offensive content and then to counter it is part of

learning how to live in a pluralistic society, a society

which insists upon open discourse towards the end of

a tolerant citizenry.” Lee v. Weisman, 505 U.S. 577,

590-591 (1992). In other words, it is precisely because

MacRae’s speech was perceived by some to be

“mocking, derogatory, and disparaging” (App. 26a)

that it requires First Amendment protection. “The

18

Court should not [] gloss over [] decades of

jurisprudence and the centrality of First Amendment

freedoms in our lives because it is confronted with

speech it does not like and because a government

employer fears a potential public response that it

alone precipitated.” Pappas v. Giuliani, 290 F.3d 143,

154 (2nd Cir. 2002) (Sotomayor, J. dissenting). Thus,

the Pickering balancing test should not apply to

private speech on matters of public concern that

occurred prior to a teacher’s hiring and unrelated to

the job.

II.

This Case Presents an Ideal Vehicle To

Protect Unrelated, Preemployment Speech

on Matters of Public Concern.

With no facts in dispute, this case presents a

purely legal question of exceptional importance: does

Pickering

balancing

apply

to

unrelated,

preemployment speech on matters of public concern?

There is no dispute that MacRae’s memes

communicated matters of public concern. App. 34a.

There is also no dispute that the memes were

unrelated to Hanover Public Schools, its

administrators, teachers, parents, or students. App.

3a and 26a. Nor is there any dispute that MacRae

posted the memes before she was employed by the

school district. App. 3a.

There is also no dispute that Hanover Public

Schools fired MacRae because of her unrelated,

preemployment speech on matters of public concern.

App. 11a. There is also no dispute that the school

administrators fired MacRae because they believed

the existence of MacRae’s social media posts would

cause a disruption at Hanover High School. App. 27a.

19

Nor is there a dispute that the district and appellate

courts employed the Pickering balancing test to

determine that Hanover Public Schools did not violate

MacRae’s free speech rights when it fired her. App.

24a-25a. All that is in dispute is whether the

Pickering balancing test applies in this situation.

This case could not be a more perfect vehicle for the

Court to determine the rights of the tens-of-millions

aspiring teachers who are participating in public

affairs and the four million public-school teachers

who spoke on matters of public concern before they

were employed.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

MICHAEL BEKESHA

Counsel of Record

JUDICIAL WATCH, INC.

425 Third Street, S.W.

Suite 800

Washington, DC 20024

(202) 646-5172

mbekesha@judicialwatch.org

September 26, 2024

Counsel for Petitioner