A federal judge has found that Regional School Unit 22’s ban on a conservative activist’s participation in board meetings and school events was unconstitutional and violated the free speech clause of the 1st Amendment.
U.S. District Judge Nancy Torresen issued her strongly worded order Wednesday in time for Shawn McBreairty to attend and speak at a board meeting that night, where he accused the board of creating “a culture of fear” making residents reluctant to criticize or question its actions and policies.
McBreairty, a volunteer with the conservative activist organization Maine First Project, has attended RSU 22 school board meetings throughout the past year, repeatedly saying that district teachers teach “critical race theory,” a common national refrain from conservatives. He has also complained about books in RSU 22 school libraries and a district teacher’s reading list that highlighted books by LGBTQ authors and authors of color.
The temporary restraining order issued by Torresen, an appointee of former President Barack Obama, marks a victory from McBreairty, who is also facing a lawsuit from the neighboring Hermon School Department that accuses him of making it a “personal mission” to publicly bully a teacher.
RSU 22 in May banned McBreairty, 51, of Hampden from attending any school functions, both in person and remotely, and from stepping foot on school grounds for meeting purposes until Dec. 31 after he was removed from a school board meeting the previous month.
RSU 22 serves Winterport, Hampden, Newburgh and Frankfort.
The board took the action “due to Mr. McBreairty’s blatant and repeated failure to comply with reasonable RSU 22 policies regarding meeting attendance,” and an audio recording he played at a meeting that the district claimed contained “obscene language.”
McBreairty sued the district on July 8 in federal court in Bangor seeking an emergency temporary restraining order lifting the ban, which the judge issued.
Torresen strongly disagreed with RSU 22.
She found that McBreairty’s reference to “hardcore anal sex” in a book in the school library was not obscene under the law because it was “not appealing to any prurient interest and [was] offered to make a political or philosophical point.”
The judge also said that the school board’s restrictions on McBreairty’s speech “suggest pretext, and they raise the specter of viewpoint discrimination.”
“Here, it is hard to shake the sense that the school board is restricting the speech because the board disagrees with both McBreairty’s opinions and the unpleasantness that accompanies them,” Torresen concluded.
It was unclear Friday what, if any, impact Torresen’s ruling will have on the Hermon School Department’s lawsuit against McBreairty. That lawsuit is pending in Penobscot County Superior Court in Bangor.
At Wednesday’s board meeting, McBreairty apologized to residents of the towns that make up RSU 22 for the legal fees the district has had to pay due to his lawsuit. McBreairty posted his comments on YouTube. He suggested that board chair Heath Miller also should apologize to taxpayers for legal expenses incurred by banning McBreairty.
Neither Miller nor the district’s attorney, Allison Economy of Bangor, immediately returned a request for comment on Torresen’s ruling.
McBreairty’s attorney, Marc Randazza of Gloucester, Massachusetts, said that McBreairty was “elated” by the decision. Based on Torresen’s ruling, he said, the lawsuit should be settled rather than go forward.
Randazza described the board as “power drunk” when it banned McBreairty.
“We hope this sobers them up,” the lawyer said. “The difference between me and my client and the defendants in this case is that, in the future, when someone’s trying to stifle [the board’s] freedom of expression, we will be there to defend their rights, too.”