A regional school unit violated the First Amendment when it banned Shawn McBreairty from attending school functions and stepping foot on school property, according to a federal judge.
Regional School Unit (RSU) 22, which serves Winterport, Hampden, Newburgh, and Frankfort, banned McBreairty from school property and school meetings. McBreairty describes himself as an “advocate for students, parents, taxpayers, teachers and the First Amendment” on Twitter and a volunteer for the conservative Maine First Project. The ban, which was issued in May, came after the district alleged McBreairty played an obscene recording during a school board meeting, in violation of school board rules relating to public participation, and did not comply after being repeatedly directed to stop playing the recording and leave the meeting.
On July 20, Judge Nancy Torresen, appointed to the U.S. District Court for the District of Maine by former president Barack Obama, granted McBreairty a temporary restraining order on an emergency basis, preventing RSU 22 from enforcing the ban against him attending school meetings, and allowing him to attend a meeting later that day.
Torresen found that RSU 22’s ban of McBreairty, in part made because it determined his repeated use of the phrase “hardcore anal sex” in the phone recording he played at the April 27 meeting that led to his ban contained “patently obscene and vulgar language” to be improper.
Torresen wrote that McBreairty’s “expression of his school-related concerns at the podium during the public comment period of School Board meetings constitutes speech that is protected under the First Amendment.”
Contrary to arguments made by the RSU 22 school board, which alleged McBreairty’s comments during the school board meeting were less protected under the First Amendment because they occurred during a nonpublic forum, to be invalid.
Courts have generally found that some restrictions can be placed on speech made in nonpublic forums so long as they are content-neutral and place restrictions on the time, place, and manner of speech.
Torresen found that McBreairty’s speech fell within the content restrictions of school board meetings, limiting them to topics of concern related to RSU 22, such as “the purported teaching of critical race theory, issues with reading lists and books in the school libraries, the handling of complaints by the School Board and RSU 22 administrators, and other school governance issues.”
As a result, Torresen said the school board’s attempts to limit McBreairty would only “pass constitutional muster” if they were reasonable and viewpoint neutral, a standard she found the district failed to meet. Torresen questioned whether the school board’s ban was based on McBreairty’s viewpoint, calling some of the violations cited by RSU 22 in its ban “questionable and perhaps overblown.”
As part of this argument, Torresen found that McBreairty’s use of the phrase “hardcore anal sex” in reference to a book available in the school’s library was not in itself obscene.
Torresen also found that the district’s ban on McBreairty, set to stretch through the end of 2022, failed to meet reasonableness requirements necessary to justify limitations on speech and that the ban was likely to cause irreparable harm “in the absence of immediate relief.”
“This is a huge first step for parents in Maine and across the country to be able to use their protected Free Speech to address the educational issues we are seeing in these public schools. It’s a win for everyone, regardless of political affiliation, sex, race, or sexuality, as the First Amendment speaks for all Americans,” McBreairty said of the decision. “They tried to take away my First Amendment and Due Process rights and not listen to the concerns brought to me from students, parents, taxpayers and teachers of the district.”
McBreairty added that he hoped Heath Miller, chair of the RSU 22 school board, would settle the lawsuit quickly to avoid continuing to use taxpayer dollars.
Another lawsuit is pending against McBreairty in Penobscot County Superior Court in Bangor. That lawsuit is being brought against McBreairty by the Hermon School Department on the grounds that he made false and defamatory statements against a teacher.
