Amicus Curiae Brief — Kari MacRae, Petitioner v. Matthew Mattos, et al.

No. 24-355

In the

Supreme Court of the United States

_________________________

KARI MACRAE,

Petitioner,

v.

MATTHEW MATTOS, ET AL.,

Respondents.

_________________________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the First Circuit

_________________________

BRIEF OF CATHOLICVOTE.ORG

EDUCATIONAL FUND AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

_____________________

SCOTT W. GAYLORD

HIGH POINT UNIVERSITY SCHOOL OF LAW

APPELLATE ADVOCACY CLINIC

One University Parkway

High Point, NC 27268

(336) 841-2635

sgaylord@highpoint.edu

Counsel for Amicus Curiae

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

i

TABLE OF CONTENTS

Page

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . ii

Interests of Amicus Curiae . . . . . . . . . . . . . . . . . . . 1

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . 2

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

Pickering grants government employers

a limited authority to regulate certain

types of expression by current employees,

not a broad power to punish the speech of

political candidates (or others) made

prior to becoming a government

employee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II.

Allowing government employers to

punish pre-employment speech will

impermissibly chill the expression of

millions of current and future

government employees. . . . . . . . . . . . . . . . 21

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Arnett v. Kennedy,

416 U.S. 134 (1974) . . . . . . . . . . . . . . . . . . . . . . . . 10

Bd. of Educ., Island Trees Union Free Sch. Dist.

No. 26 v. Pico,

457 U.S. 853 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 21

Brandenburg v, Ohio,

395 U.S. 444 (1969) . . . . . . . . . . . . . . . . . . . . . . . . 29

Borough of Duryea, Pa. v. Guarnieri,

564 U.S. 379 (2011) . . . . . . . . . . . . . . . . . . . . . . . . 13

Brown v. Hartlage,

456 U.S. 45 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . 18

Cafeteria and Rest. Workers Union, Local 473

v. McElroy,

367 U.S. 886 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . 8

Cantwell v. Connecticut,

310 U.S. 296 (1940) . . . . . . . . . . . . . . . . . . . . . . . . 27

Carey v. Brown,

447 U.S. 455 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . 3

City of San Diego v. Roe,

543 U.S. 77 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . 12

iii

Cleavenger v. University of Oregon,

2015 WL 4663304 (D. Or. 2015) . . . . . . . . . . . . . . 23

Cohen v. California,

403 U.S. 15 (1971) . . . . . . . . . . . . . . . . . . . . . . 15, 26

Connick v. Myers,

461 U.S. 138 (1983) . . . . . . . . . . . . . . . . 8, 10, 12, 14

Elrod v. Burns,

427 U.S. 347 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 29

Garcetti v. Ceballos,

547 U.S. 410 (2006) . . . . . . . . . . 1, 7, 9-11, 13, 14, 15

Garrison v. Louisiana,

379 U.S. 64 (1964) . . . . . . . . . . . . . . . . . . . . 3, 26, 28

Harris v. Quinn,

573 U.S. 616 (2014) . . . . . . . . . . . . . . . . . . . . . . . . 12

Houston Cmty. Coll. Sys. v. Wilson,

595 U.S. 468 (2022) . . . . . . . . . . . . . . . . . . . . . . . . 17

Hurley v. Irish–American Gay, Lesbian and

Bisexual Group of Boston, Inc.,

515 U.S. 557 (1995) . . . . . . . . . . . . . . . . . . . . . . . . 21

Keyishian v. Bd. of Regents of Univ. of State of N.Y.,

385 U.S. 589 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Lane v. Franks,

573 U.S. 228 (2014) . . . . . . . . . . . . . . . . . . . . . . 6, 14

iv

MacRae v. Mattos,

106 F.4th 122 (1st Cir. 2024) . . 1, 6, 9, 18-20, 22-25

NAACP v. Button,

371 U.S. 415 (1963) . . . . . . . . . . . . . . . . . . . . . . 5, 24

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . 3, 27, 29

Nieves v. Bartlett,

587 U.S. 391 (2019) . . . . . . . . . . . . . . . . . . . . . . . . 17

Perry v. Sindermann,

408 U.S. 593 (1972) . . . . . . . . . . . . . . . . . . . . . . 4, 17

Pickering v. Bd. of Educ. of Twp. High Sch.

Dist. 205,

391 U.S. 563 (1968) . . . 1, 2, 6, 9-12,14, 15,17-19, 21,

23, 30

Rankin v. McPherson,

483 U.S. 378 (1987) . . . . . . . . . . . . . . . . . . . . . 11, 30

Republican Party of Minn. v. White,

536 U.S. 765 (2002) . . . . . . . . . . . . . . . . . . . . . . . . 18

Riel v. City of Santa Monica,

2014 WL 12694159 (C.D. Cal. 2014) . . . . . . . . . . 23

Rosenberger v. Rector and Visitors of Univ. of Va.,

515 U.S. 819 (1995) . . . . . . . . . . . . . . . . . . . . . . . . 13

Roth v. United States,

354 U.S. 476 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . 3

v

Shelton v. Tucker,

364 U.S. 479 (1960) . . . . . . . . . . . . . . . . 17-18, 24-26

Snyder v. Phelps,

562 U.S. 443 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . 20

Speiser v. Randall,

357 U.S. 513 (1958) . . . . . . . . . . . . . . . . . . . . . . . 4, 17

Stromberg v. California,

283 U.S. 359 (1931) . . . . . . . . . . . . . . . . . . . . . . . . . 26

Texas v. Johnson,

491 U.S. 397 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 20

Thornhill v. Alabama,

310 U.S. 88 (1940) . . . . . . . . . . . . . . . . . . . . . . . 17, 28

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Nat’l Treasury Emps. Union,

513 U.S. 454 (1995) . . . . . . . . . . . . . . . . . . . . . . 14, 15

Waters v. Churchill¸

511 U.S. 661 (1994) . . . . . . . . . . . . . . . . . 4, 11, 16, 21

Whitney v. California,

274 U.S. 357 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . 29

Wieman v. Updegraff,

344 U.S. 183 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . 8

vi

Wood v. Georgia,

370 U.S. 375 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . 18

W.V. Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . 21

Constitutional Provisions

U.S. Constitution

First Amendment . . . . . . . . 2-7, 9, 10, 13-18, 20, 21,

24-27, 29

U.S. Constitution Fourteenth Amendment . . . . . . 27

Other Authorities

Annual Estimates of the Resident Population

for the United States, Regions, States, District

of Columbia and Puerto Rico: April 1, 2020 to

July 1, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

How Many Teachers Are in the U.S.?

(Jan. 11, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

States Where the Most People Work for

the Government (June 4, 2021) . . . . . . . . . . . . . . . 22

Total number of government employees in the

United States from 1982-2022 . . . . . . . . . . . . . . . . 22

1

INTERESTS OF AMICUS CURIAE 1

CatholicVote.org Education Fund (“CVEF”) is a

nonpartisan voter education program devoted to

promoting religious freedom for people of all faiths.

Given its educational mission, CVEF is concerned

about the First Circuit’s opinion in MacRae v.

Mattos, 106 F.4th 122 (1st Cir. 2024), which takes

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

205, 391 U.S. 563 (1968) to authorize a public

school’s firing a teacher for political speech she made

months before accepting a position at that school.

This capacious interpretation is inconsistent with

Pickering and its progeny, which limit the

government’s ability to regulate employee

expression to speech made during the government

employer-employee relationship.

Garcetti v.

Ceballos, 547 U.S. 410, 418-19 (2006) (citation

omitted) (recognizing that “[g]overnment employers

… need a significant degree of control over their

employees’ words and actions; without it, there

would be little chance for the efficient provision of

public services…. When [employees] speak out, they

1 Each party received notice of the filing of this amicus brief as

required by Rule 37.2. Pursuant to Rule 37.6, amicus states

that no counsel for a party authored this brief in whole or in

part, and no person other than the amicus and its counsel

made any monetary contribution intended to fund the

preparation or submission of this brief.

2

can express views that contravene governmental

policies or impair the proper performance of

governmental functions.”).

Accordingly,

by

permitting

government

employers to punish pre-employment speech that

was fully protected when made, the First Circuit not

only infringes on the First Amendment rights of

hundreds of thousands of government employees in

the First Circuit, but also unconstitutionally chills

the speech of millions more who might seek

government employment at some point in the

future. CVEF comes forward, therefore, to urge this

Court to grant certiorari and to determine whether

Pickering permits a government employer to fire a

current employee for political expression she made

prior to joining that government entity.

SUMMARY OF ARGUMENT

The First Circuit has decided an important and

novel federal question—whether Pickering applies

to speech that a candidate for political office makes

months before becoming a government employee—

in a way that directly conflicts with this Court’s

government-as-employer precedents. Contrary to

the First Circuit’s opinion, this Court has never

suggested, let alone held, that Pickering applies

outside the limited context of speech that a

government employee makes while employed by the

government—and for good reasons. The First

3

Amendment “was fashioned to assure unfettered

interchange of ideas for the bringing about of

political and social changes desired by the people.”

Roth v. United States, 354 U.S. 476, 484 (1957). This

broad protection is necessary because “speech

concerning public affairs is more than selfexpression; it is the essence of self-government.”

Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).

Accordingly, speech on matters of public concern

“has always rested on the highest rung of the

hierarchy of First Amendment values.” Carey v.

Brown, 447 U.S. 455, 467 (1980). And this Court has

repeatedly confirmed the “profound national

commitment to the principle that debate on public

issues should be uninhibited, robust, and wideopen.” New York Times Co. v. Sullivan, 376 U.S.

254, 270 (1964).

When the government acts in a special capacity,

such as a landlord, educator, or employer, the First

Amendment grants it some authority to regulate

expression that interferes with or undermines the

government’s unique interests in that role:

[T]he extra power the government has

… comes from the nature of the

government’s mission as employer.

Government

agencies

…

hire

employees to help do [particular] tasks

as effectively and efficiently as

possible. When someone who is paid a

4

salary so that she will contribute to an

agency’s effective operation begins to

do or say things that detract from the

agency’s effective operation, the

government employer must have some

power to restrain her.

Waters v. Churchill¸ 511 U.S. 661, 675 (1994). The

government’s power is predicated on and confined to

the unique relationship between government

employers and their employees.

Before entering an employment relationship

with the government, individuals enjoy the full

scope of First Amendment speech protection. Id.

(“The government cannot restrict the speech of the

public at large just in the name of efficiency.”).

When accepting government employment, an

individual relinquishes some First Amendment

freedom within the context of that employment

relationship. The government, however, cannot

“deny [employment] to a person because of [her]

constitutionally protected speech or associations.”

Perry v. Sindermann, 408 U.S. 593, 597 (1972).

Such a power would “penalize[] or inhibit[]” her

“exercise of those freedoms,” permitting “the

government to ‘produce a result which [it] could not

command directly.’

Such interference with

constitutional rights is impermissible.” Id. (quoting

Speiser v. Randall, 357 U.S. 513, 526 (1958)). The

First Circuit’s opinion, which enables a public school

5

to dismiss a teacher based on her pre-employment

speech activity, contravenes these well-established

principles.

Moreover, left unchecked, the First Circuit’s

opinion will chill the expression of hundreds of

thousands of people in the First Circuit who work

for government entities as well as the millions more

who may want to do so in the future. NAACP v.

Button, 371 U.S. 415, 433 (1963) (“[First

Amendment] freedoms are delicate and vulnerable,

as well as supremely precious in our society. The

threat of sanctions may deter their exercise almost

as potently as the actual application of sanctions.”).

Accordingly, review is needed to determine whether

government employers can punish current

employees for speech activity prior to the advent of

the government employer-employee relationship,

and if not, to remove the unconstitutional chill the

First Circuit’s opinion imposes on the preemployment speech of millions of current and future

government employees.

6

ARGUMENT

I.

Pickering grants government employers a

limited authority to regulate certain types

of expression by current employees, not a

broad power to punish the speech of

political candidates (or others) made

prior

to

becoming

a

government

employee.

As this Court has acknowledged, neither

“students [n]or teachers shed their constitutional

rights to freedom of speech or expression at the

schoolhouse gate.” Tinker v. Des Moines Indep.

Cmty. Sch. Dist., 393 U.S. 503, 506 (1969); Lane v.

Franks, 573 U.S. 228, 231 (2014) (confirming “that

citizens do not surrender their First Amendment

rights

by

accepting

public

employment”).

Undeterred, the First Circuit expanded the scope of

Pickering, allowing public schools to punish the

speech of teachers that was made months or years

before they traversed the schoolhouse gate as a

teacher. In particular, the panel upheld a public

school’s dismissal of a teacher, Kari MacRae,

because of political expression she engaged in—and

that was fully protected—before she was hired as a

public school teacher. MacRae, 106 F.4th at 128.

This broad grant of governmental authority is

inconsistent with the reasons Pickering advanced

7

for giving government employers some limited

power over their employees’ speech.

As an employer, a public school acts in a special

capacity, which gives it more authority to regulate

the speech of its employees than the government has

when acting as sovereign. Specifically, a public

school can, in certain circumstances, restrict

employee speech that interferes with the efficient

operations of the school:

[The government] need[s] a significant

degree of control over [its] employees’

words and actions; without it, there

would be little chance for the efficient

provision of public services. Public

employees, moreover, often occupy

trusted positions in society. When they

speak out, they can express views that

contravene governmental policies or

impair the proper performance of

governmental functions.

Garcetti, 547 U.S. at 418-19 (citation omitted).

When accepting public employment, an individual

“by necessity must accept certain limitations on his

or her freedom,” but “[t]he First Amendment limits

the ability of a public employer to leverage the

employment relationship to restrict, incidentally or

intentionally, the liberties employees enjoy in their

capacities as private citizens.” Id. at 419. When

employed and “speaking as citizens about matters of

8

public concern, [employees] must face only those

speech restrictions that are necessary for their

employers to operate efficiently and effectively.” Id.

The government’s added authority arises only by

virtue of the employment relationship and extends

only to certain expression occurring during that

relationship, i.e., “[w]hen [employees] speak out.”

Id. Prior to an individual’s becoming an employee,

a government employer lacks authority to leverage

the possibility of a future employment relationship

to restrict that person’s free speech rights as a

private citizen. Pre-employment, the individual

neither holds a position of public trust nor is in

position to directly affect “the efficient provision of

public services” through her speech activity. Id. at

418. The government employer, therefore, has no

right to restrict or punish such pre-employment

expressive activity any more than it has the power

to “prevent[] or ‘chill[]’ [government employees] by

the fear of discharge from joining political parties

and other associations that certain public officials

might find ‘subversive.’ ” Connick v. Myers, 461 U.S.

138, 145 (1983); Wieman v. Updegraff, 344 U.S. 183

(1952) (holding that a State cannot require

employees to take an oath denying past affiliations

with the Communist party); Cafeteria and Rest.

Workers Union, Local 473 v. McElroy, 367 U.S. 886

(1961) (concluding that the government cannot deny

employment for prior membership in a particular

9

party); Keyishian v. Bd. of Regents of Univ. of State

of N.Y., 385 U.S. 589 (1967) (rejecting New York’s

attempt to bar public employment based on an

individual’s membership in a “subversive”

organization).

Ignoring these precedents, the First Circuit

adopted a literal reading of Garcetti’s first inquiry—

“whether the employee spoke as a citizen on a

matter of public concern.” 547 U.S. at 418. MacRae

was an employee of a public school who spoke (by

posting memes and a campaign video) as a citizen on

matters of public concern. That was all the panel

required—a current government employee’s

expression on a matter of public concern regardless

of when that speech was made. MacRae, 106 F.4th

at 136. The timing of the expression was irrelevant;

MacRae spoke at some point, and months later that

speech threatened to disrupt the school’s operations.

Id. at 134 (concluding that Pickering applies because

“the allegations at issue here involve a government

employer firing its public employee for their

speech”).

Whether Pickering applies to pre-employment

speech, however, cannot be determined simply by

noting that MacRae engaged in speech on a matter

of public concern at some point during her political

campaign. The timing of the speech is the central—

and novel—question, a question Pickering and

Garcetti never addressed given that the speech

10

activity in those cases was made by government

employees while employed. The panel’s cursory

analysis, therefore, begs the question, assuming

what needs to be proven—that Pickering extends to

an

employee’s

pre-employment

statements.

Moreover, a careful review of the First Amendment

principles underlying the government-as-employer

doctrine shows that the First Circuit’s analysis is

inconsistent with Pickering, which provides

government officials with a narrow grant of

authority to regulate employee speech made during

the government employer-employee relationship.

Connick, 461 U.S. at 151 (quoting Arnett v. Kennedy,

416 U.S. 134, 168 (1974) (Powell, J., concurring in

part)) (describing the government’s “ ‘prerogative to

remove employees whose conduct hinders efficient

operation and to do so with dispatch. Prolonged

retention of a disruptive or otherwise unsatisfactory

employee can adversely affect discipline and morale

in the workplace, foster disharmony, and ultimately

impair the efficiency of an office or agency.’ ”).

As Garcetti explained, the First Amendment

permits government employers to exercise “control

over their employees’ words and actions” in certain

situations because “[w]hen [public employees] speak

out, they can express views that contravene

governmental policies or impair the proper

performance of governmental functions.” 547 U.S.

at 419. The government’s power is cabined by its

11

special interests as an employer: “The government

cannot restrict the speech of the public at large just

in the name of efficiency. But where the government

is employing someone for the very purpose of

effectively achieving its goals, such restrictions may

well be appropriate.” Waters, 511 U.S. at 675. Not

surprisingly, then, the scope of the government’s

authority depends on the nature of the employee’s

particular job: “The burden of caution employees

bear with respect to the words they speak will vary

with the extent of authority and public

accountability the employee’s role entails.” Rankin

v. McPherson, 483 U.S. 378, 390 (1987). Stated

differently, the employer’s “heightened interests”

relate only to “controlling speech made by an

employee in his or her professional capacity.”

Garcetti, 547 U.S. at 422 (emphasis added).

Accordingly, “[w]hen someone who is paid a salary

so that she will contribute to an agency’s effective

operation begins to do or say things that detract

from the agency’s effective operation, the

government employer must have some power to

restrain her.” Waters¸ 511 U.S. at 675.

The upshot of all this is that, contrary to the First

Circuit’s holding, Pickering applies to only three

types of expression that an employee might make

while working for the government: speech that (1) is

about a private matter; (2) relates to her job duties;

or (3) is on a matter of public concern and, therefore,

12

is subject to Pickering balancing. Pickering, 391

U.S. at 568 (balancing “the interests of the teacher,

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 that it performs through its employees”).

As an employer, the government has relatively

broad authority over the first two categories of

employee speech. City of San Diego v. Roe, 543 U.S.

77, 82 (2004) (per curiam) (noting that “Pickering

did not hold that any and all statements by a public

employee are entitled to balancing”). If an employee

engages in expressive activity that is not a matter of

public concern, the government employer generally

can regulate her speech. As Connick explained:

when a public employee speaks not as

a citizen upon matters of public

concern, but instead as an employee

upon matters only of personal interest,

… a federal court is not the appropriate

forum in which to review the wisdom of

a personnel decision taken by a public

agency allegedly in reaction to the

employee’s behavior.

461 U.S. at 147; Harris v. Quinn, 573 U.S. 616, 653

(2014) (“Under [Pickering and later cases], employee

speech is unprotected if it is not on a matter of public

concern (or is pursuant to an employee's job

13

duties).”); Borough of Duryea, Pa. v. Guarnieri, 564

U.S. 379, 386 (2011) (same).

Similarly, if the employee’s expressive activity is

related to her responsibilities within the

organization, the government employer generally

has the authority to restrict her speech:

[W]hen public

employees

make

statements pursuant to their official

duties, the employees are not speaking

as citizens for First Amendment

purposes, and the Constitution does

not insulate their communications

from

employer

discipline….

Restricting speech that owes its

existence to a public employee’s

professional responsibilities does not

infringe any liberties the employee

might have enjoyed as a private citizen.

It simply reflects the exercise of

employer control over what the

employer itself has commissioned or

created.

Garcetti, 547 U.S. at 421-22; Rosenberger v. Rector

and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995)

(“[W]hen the government appropriates public funds

to promote a particular policy of its own it is entitled

to say what it wishes.”). The contrast with preemployment speech is stark.

Restricting preemployment speech infringes on First Amendment

14

freedoms because at the time of the speech the

employee was a private citizen and had no official

duties, thereby moving such speech outside of the

Pickering framework.

Pickering balancing is triggered only when an

employee makes statements on matters of public

concern that do not trace back to her professional

duties: “[e]mployees who make public statements

outside the course of performing their official duties

retain some possibility of First Amendment

protection because that is the kind of activity

engaged in by citizens who do not work for the

government.” Garcetti, 547 U.S. at 423; United

States v. Nat’l Treasury Emps. Union, 513 U.S. 454,

466 (1995) (“NTEU”) (“[W]e have applied Pickering’s

balancing test only when the employee spoke ‘as a

citizen upon matters of public concern’ rather than

‘as an employee upon matters only of personal

interest.’ ”) (citation omitted). Of course, nonemployees who make statements on matters of

public concern receive full First Amendment

protection, a protection that is not forfeited by

accepting government employment. Connick, 461

U.S. at 142 (“[I]t has been settled that a state cannot

condition public employment on a basis that

infringes the employee’s constitutionally protected

interest in freedom of expression.”); Lane, 573 U.S.

at 231 (“Almost 50 years ago, this Court declared

that citizens do not surrender their First

15

Amendment

rights

employment.”).

by

accepting

public

Consequently, if the speech at issue was not

made in the context of the government employeremployee relationship, Pickering simply does not

apply: “In Pickering and a number of other cases we

have recognized that Congress may impose

restraints on the job-related speech of public

employees that would be plainly unconstitutional if

applied to the public at large.” NTEU, 513 U.S. at

465. Why? Because when a citizen, who is not

employed by the government, speaks, she does so as

a citizen only. Her expression has “no official

significance” and “b[ears] similarities to [expression

engaged in] by numerous citizens every day.”

Garcetti, 547 U.S. at 422. Having no employment

relationship with the person at the time of the

speech, the government employer cannot restrict or

punish her expression ex post—regardless of the

impact her pre-employment speech might have on

the efficiency of the public services provided.

Consider an example. In Cohen v. California¸

this Court held that the First Amendment

safeguarded Cohen’s right to wear a linguistically

colorful jacket in the corridors of a courthouse. 403

U.S. 15 (1971). Suppose that a public school

subsequently hires Cohen, who, emboldened by his

prior Supreme Court victory, wears the same jacket

to his new job. School officials repeatedly instruct

16

him to remove the jacket. He refuses and is

ultimately dismissed. In this situation, Cohen has

no First Amendment claim because this Court has

“never expressed doubt that a government employer

may bar its employees from using Mr. Cohen’s

offensive utterance to members of the public or to

the people with whom they work.” Waters, 511 U.S.

at 672.

Now suppose that after being hired Cohen

neither wears his jacket at school nor engages in

such colorful language with students, parents, or

other school employees; he simply does his job and

does it well. The government entity subsequently

discovers, after several complaints from parents

lead to a kerfuffle, that Cohen is the person from the

famous case and dismisses him for his preemployment expression.

In this hypothetical,

Cohen’s pre-employment jacket-wearing provides no

basis for the school’s firing him:

[The government] may not deny a

benefit to a person on a basis that

infringes his constitutionally protected

interests—especially, his interest in

freedom of speech.

For if the

government could deny a benefit to a

person because of his constitutionally

protected speech or associations, his

exercise of those freedoms would in

effect be penalized and inhibited. This

17

would allow the government to

“produce a result which [it] could not

command directly.” Such interference

with

constitutional

rights

is

impermissible.

Perry, 408 U.S. at 597 (quoting Speiser, 357 U.S. at

526).

While a school district has “the right … to

investigate the competence and fitness of those

whom it hires to teach in its schools … [based] on a

broad range of factors,” Shelton v. Tucker, 364 U.S.

479, 485 (1960), Pickering confers no authority to

dismiss a teacher for political expression that was

fully protected when made pre-employment: “The

freedom of speech and of the press guaranteed by

the Constitution embraces at the least the liberty to

discuss publicly and truthfully all matters of public

concern without previous restraint or fear of

subsequent punishment.” Thornhill v. Alabama,

310 U.S. 88, 101-02 (1940). As this Court explained

in Houston Cmty. Coll. Sys. v. Wilson, “ ‘[a]s a

general matter,’ the First Amendment prohibits

government officials from subjecting individuals to

‘retaliatory actions’ after the fact for having engaged

in protected speech.” 595 U.S. 468, 474 (2022)

(quoting Nieves v. Bartlett, 587 U.S. 391, 398

(2019)). The school can no more punish MacRae for

her pre-employment speech than it could for her preemployment political associations. Shelton, 364

18

U.S. at 485-86 (“To compel a teacher to disclose his

every associational tie is to impair that teacher’s

right of free association, a right closely allied to

freedom of speech and a right, which like free

speech, lies at the foundation of free society.”).

Unfortunately, Hanover School officials did just

that, terminating MacRae based on “concern[] about

the potential negative impact MacRae’s social media

posts would have on staff and students.” MacRae,

106 F.4th at 130. And the First Circuit upheld her

dismissal, expanding Pickering’s limited grant of

government authority in the employment context to

encompass pre-employment political speech. In so

doing, the First Circuit “sets [this Court’s] First

Amendment jurisprudence on its head,” Republican

Party of Minn. v. White, 536 U.S. 765, 781 (2002), by

allowing government employers to exert influence

over “[t]he role that elected officials play in our

society” even though that role “makes it all the more

imperative that they be allowed freely to express

themselves on matters of current public

importance.” Wood v. Georgia, 370 U.S. 375, 395

(1962); Brown v. Hartlage, 456 U.S. 45, 60 (1982) (“It

is simply not the function of government to ‘select

which issues are worth discussing or debating’ in the

course of a political campaign.”) (citation omitted).

MacRae ran for a seat on the Bourne School

Committee to stop, what she viewed as, the

Committee’s “push[ing its] agenda” on students

19

regarding “hot-button political issues, such as

gender identity, racism, and immigration.” MacRae,

106 F.4th at 128, 137. The Committee disagreed

with her views, highlighting “a difference of opinion

between [MacRae] and the [Committee] as to the

preferable manner of operating the school system, a

difference of opinion that clearly concerns an issue

of general public interest.” Pickering, 391 U.S. at

571. While Hanover school officials were free to

have their own positions on such issues:

whether a school system [should

pursue a specific agenda] is a matter of

legitimate public concern on which the

judgment of the school administration,

including the School Board, cannot, in

a society that leaves such questions to

popular vote, be taken as conclusive.

On such a question free and open

debate is vital to informed decisionmaking

by

the

electorate….

Accordingly, it is essential that

[teachers] be able to speak out freely on

such questions without fear of

retaliatory dismissal.

Id. at 571-72. Given that MacRae was not employed

by Hanover when she engaged in public expression,

she spoke only “as a member of the general public.”

Id.

20

To the extent Hanover disagreed with MacRae’s

views or those views caused unrest after she began

teaching, the school “could easily have” responded to

MacRae through its own statements on such issues

“via a letter to the … newspaper or otherwise.” Id

at 572. The school also could have implemented

curricular changes to address particular topics that

MacRae’s campaign raised. What the school could

not do was dismiss her for her pre-employment

political speech even if that speech upset or offended

some members of the community:

[S]peech [on a matter of public concern]

is entitled to “special protection” under

the First Amendment. Such speech

cannot be restricted simply because it

is upsetting or arouses contempt. “If

there is a bedrock principle underlying

the First Amendment, it is that the

government may not prohibit the

expression of an idea simply because

society finds the idea itself offensive or

disagreeable.” Indeed, “the point of all

speech protection ... is to shield just

those choices of content that in

someone's eyes are misguided, or even

hurtful.”

Snyder v. Phelps, 562 U.S. 443, 458 (2011) (quoting

Texas v. Johnson, 491 U.S. 397, 414 (1989) and

21

Hurley v. Irish–American Gay, Lesbian and Bisexual

Group of Boston, Inc., 515 U.S. 557, 574, (1995)).

Just as “local school boards may not remove books

from school library shelves simply because they

dislike the ideas contained in those books,” school

officials should not be allowed to dismiss teachers

for pre-employment political statements with which

the officials disagree. Bd. of Educ., Island Trees

Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853,

872 (1982); W.V. Bd. of Educ. v. Barnette, 319 U.S.

624, 642 (1943) (holding that schools cannot

“prescribe what shall be orthodox in politics,

nationalism, religion, or other matters of opinion”).

Despite the broad protection afforded expression,

the First Circuit permitted the school to discipline a

teacher for her prior expressive activity. Only this

Court can determine the proper scope of First

Amendment protection afforded pre-employment

speech under Pickering and the First Amendment.

II.

Allowing government employers to

punish pre-employment speech will

impermissibly chill the expression of

millions

of

current

and

future

government employees.

As Pickering recognized, “it is apparent that the

threat of dismissal from public employment is

nonetheless a potent means of inhibiting speech.”

391 U.S. at 574; Waters, 511 U.S. at 669 (“Speech

22

can be chilled and punished by administrative

action as much as by judicial processes; in no case

have we asserted or even implied the contrary.”). If

MacRae can be fired for making controversial or

insensitive pre-employment remarks (as judged by

whomever is leading a school at a given time), then

so can millions of other people who currently serve

(or hope to serve) our Nation as government

employees. Consequently, the impact the First

Circuit’s mistaken interpretation will have on free

speech is staggering given that more than

14,100,000 people live within the First Circuit. 2 In

2020, 684,200 of these people worked for federal,

state, and local governments in Maine,

Massachusetts, New Hampshire, and Rhode

Island. 3 If MacRae is not reconsidered, all current

government employees confront the threat of

dismissal for statements they made preemployment. Any of the remaining 13,415,800

individuals in the First Circuit who may seek

2 Annual Estimates of the Resident Population for the United

States, Regions, States, District of Columbia and Puerto Rico:

April 1, 2020 to July 1, 2023 (available at

www2.census.gob/programs-surveys/popest/tables/20202023/state/totals/NST-EST2023-POP.xlsx)

3 States Where the Most People Work for the Government, 24/7

Wall

St.

(June

4,

2021)

(available

at

https://247wallst.com/special-report/2021/06/04/states-wherethe-most-people-work-for-the-government4/?tpid=890318&tv=link&tc=in_content

23

government employment at some point must be

cautious about what they say, write, or post about

political and social issues because a government

entity might claim that their pre-employment

speech subsequently disrupted its operations.

Moreover, the 22,100,000 or more people who work

for federal, state, and local governments across the

country, 4 including the roughly 3,525,397 who are

public school teachers, 5 must be wary in case they

ever decide to take a similar position in the First

Circuit or other courts adopt the First Circuit’s

broad view of Pickering, which the panel contends

has already happened in California and Oregon.

MacRae, 106 F.4th at 135 (discussing Riel v. City of

Santa Monica, 2014 WL 12694159 (C.D. Cal. 2014)

and Cleavenger v. University of Oregon, 2015 WL

4663304 (D. Or. 2015)).

The chilling effect on speech is almost palpable.

As the current election cycle illustrates, the

American public is deeply divided on a wide range of

issues, including the “hot-button political issues,

such as gender identity, racism, and immigration”

4 Total number of government employees in the Unites Dates

from

1982-2022

(available

https://www.statista.com/statistics/204535/number-ofgovernment-employees-in-the-us/)

at

How Many Teachers Are in the U.S.? (Jan. 11, 2023)

(available

at

https://www.weareteachers.com/how-manyteachers-are-in-the-us/).

5

24

about which MacRae spoke. MacRae, 106 F.4th at

137. Allowing public schools to dismiss teachers for

pre-employment speech on such important political

topics whenever school officials—or a vocal group of

students and parents—disagree would not only

encourage a heckler’s veto, but also would force

would-be teachers (or other government employees)

to remain silent on controversial social or political

issues:

[T]he pressure upon a teacher to avoid

any ties which might displease those

who control his professional destiny

would be constant and heavy. Public

exposure, bringing with it the

possibility of public pressures upon

school boards to discharge teachers

who belong to unpopular or minority

organizations, would simply operate to

widen and aggravate the impairment

of constitutional liberty.”

Shelton, 364 U.S. at 486-87; Button, 371 U.S. at 433

(“[First Amendment] freedoms are delicate and

vulnerable, as well as supremely precious in our

society. The threat of sanctions may deter their

exercise almost as potently as the actual application

of sanctions.”).

This case illustrates the danger to uninhibited

and robust discussion. MacRae’s political views and

postings became known when a “concerned citizen,”

25

unhappy with MacRae’s beliefs, complained about

her posts. MacRae, 106 F.4th at 128. Suddenly, her

new colleagues on the Committee called an

executive session and determined that her beliefs

violated “core values” of the school system. Id. They

also decided to “have a public resolution” and to

require a “more formal statement” from MacRae. Id.

Others with different views on gender identity,

immigration, and race relations expressed their

concern, and the Bourne Educators Association

“voted unanimously ‘to make a public statement

against the comments made by’ MacRae.” Id. at 129.

If all of that were not enough to cause anyone

considering a government job to forswear making

statements on controversial issues, the Committee

held a public meeting during which community

members both attacked and supported MacRae. Id.

at 129-30. After learning about her campaign

speech, Hanover officials decried her posts and then

fired her because of her political statements. Id. at

136.

The problem is that the First Amendment was

adopted to safeguard such expression: “The

maintenance of the opportunity for free political

discussion to the end that government may be

responsive to the will of the people and that changes

may be obtained by lawful means, an opportunity

essential to the security of the Republic, is a

fundamental principle of our constitutional system.”

26

Stromberg v. California, 283 U.S. 359, 369 (1931);

Garrison, 379 U.S. at 74-75 (“[S]peech concerning

public affairs is more than self-expression; it is the

essence of self-government.”). And “[t]he vigilant

protection of constitutional freedoms is nowhere

more vital than in the community of American

schools.” Shelton, 364 U.S. at 487. The First

Circuit’s “unwarranted inhibition upon the free

spirit of teachers … has an unmistakable tendency

to chill that free play of the spirit which all teachers

ought especially to cultivate and practice; it makes

for caution and timidity in their associations by

potential teachers.”

Id.

Disagreements over

difficult social and political issues are inevitable in

a free society committed to robust, open discussion,

Cohen, 403 U.S. at 24, but the First Amendment

safeguards a candidate’s right to inform voters

about her positions and beliefs nonetheless:

In the realm of religious faith, and in

that

of

political

belief,

sharp

differences arise. In both fields the

tenets of one man may seem the

rankest error to his neighbor. To

persuade others to his own point of

view, the pleader, as we know, at times,

resorts to exaggeration, to vilification

…, and even to false statement. But

the people of this nation have ordained

in the light of history, that, in spite of

27

the probability of excesses and abuses,

these liberties are, in the long view,

essential to enlightened opinion and

right conduct on the part of the citizens

of a democracy.

Cantwell v. Connecticut, 310 U.S. 296, 310 (1940).

The First Circuit’s opinion is directly at odds

with these principles, fashioning a novel rule under

which “would-be critics of official conduct [or social

policies] may be deterred from voicing their

criticism, … tend[ing] to make only statements

which ‘steer far wider of the unlawful zone,’ ” and, in

the process, “dampen[ing] the vigor and limit[ing]

the variety of public debate. [Such a] rule is

inconsistent with the First and Fourteenth

Amendment.” N.Y. Times, 376 U.S. at 725-26

(citation omitted); San Diego, 543 U.S. at 82

(describing how, if public employees are precluded

from commenting on their government employers’

operations, “the community would be deprived of

informed opinions on important public issues. The

interest at stake is as much the public’s interest in

receiving informed opinion as it is the employee’s

own right to disseminate it.”) (citation omitted). To

ensure that all are free to participate in the

marketplace of ideas, the First Amendment protects

not only the right of school officials and parents to

label MacRae’s speech as contrary to the school’s

values,

harmful,

denigrating,

transphobic,

28

homophobic, and racist, but also her right to engage

in such expression: “Indeed, ‘malicious,’ ‘seditious,’

and other such evil-sounding words often have been

invoked to punish people for expressing their views

on public affairs. Fining men or sending them to jail

for criticizing public officials not only jeopardizes the

free, open public discussion which our Constitution

guarantees, but can wholly stifle it.” Garrison, 379

U.S. at 80 (Black, J., concurring).

This Court has recognized the chill that

government regulation of speech can cause.

Thornhill, 310 U.S. at 97 (“The power of the licensor

… is pernicious not merely by reason of the censure

of particular comments but by reason of the threat

to censure comments on matters of public concern.

It is not merely the sporadic abuse of power by the

censor but the pervasive threat inherent in its very

existence that constitutes the danger to freedom of

discussion.”). Allowing public schools to punish

teachers for pre-employment expression threatens

the speech of a broad swath of would-be government

employees in the same way, causing speakers to be

cautious and to avoid talking about controversial

topics:

[The Founders] knew that order cannot

be secured merely through fear of

punishment for its infraction; that it is

hazardous to discourage thought, hope

and imagination; that fear breeds

29

repression; that repression breeds

hate; that hate menaces stable

government; that the path of safety lies

in the opportunity to discuss freely

supposed grievances and proposed

remedies; and that the fitting remedy

for evil counsels is good ones. Believing

in the power of reason as applied

through public discussion, they

eschewed silence coerced by law-the

argument of force in its worst form.

Recognizing the occasional tyrannies of

governing majorities, they amended

the Constitution so that free speech

and assembly should be guaranteed.

Whitney v. California, 274 U.S. 357, 375-76 (1927)

(Brandeis, J., concurring) (quoted in N.Y. Times, 376

U.S. at 270, and overruled on other grounds by

Brandenberg v, Ohio, 395 U.S. 444 (1969)). Review,

therefore, is warranted to prevent the chilling effect

that the First Circuit’s opinion will have on the

speech rights of those living and working in the First

Circuit. Elrod v. Burns, 427 U.S. 347, 373-74 (1976)

(“The loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes

irreparable injury.”).

30

CONCLUSION

As this Court warned in Rankin, “[v]igilance is

necessary to ensure that public employers do not use

authority over employees to silence discourse, not

because it hampers public functions but simply

because superiors disagree with the content of

employees’ speech.” 483 U.S. at 384. This case

demands such vigilance. The First Circuit has

adopted an expansive view of Pickering, giving

government employers the ability to punish the preemployment speech of employees, even political

speech made during a campaign. Such a broad grant

of authority is inconsistent with Pickering, which

confines a government employer’s power to the

regulation of speech made during the government

employer-employee relationship. Moreover, many

non-governmental employees, confronted with the

possibility of being terminated in the future for preemployment statements on controversial topics, are

apt to steer far clear of any polarizing topics.

Pickering, 391 U.S. at 574 (recognizing that “the

threat of dismissal from public employment is … a

potent means of inhibiting speech”). Review is

necessary, therefore, to determine the proper scope

of Pickering and to avoid the chilling effect the First

Circuit’s opinion will have on present and future

government employees.

31

Respectfully submitted,

SCOTT W. GAYLORD

HIGH POINT UNIVERSITY SCHOOL OF LAW

APPELLATE ADVOCACY CLINIC

One University Parkway

High Point, NC 27268

(336) 841-2635

sgaylord@highpoint.edu

Counsel for Amicus Curiae

October 30, 2024