Two Bangor area school districts won early victories over conservative activist Shawn McBreairty in rulings recently from state and federal judges.
The judges ruled in favor of the Hermon School District and RSU 22, which includes Hampden, Newburgh, Winterport and Frankfort. Both cases will go forward but it was unclear Tuesday how long it would take for them to be resolved.
Superior Court Justice Bruce Mallonee denied McBreairity’s motion to dismiss the lawsuit the Hermon district filed a year ago in Penobscot County Superior Court. Last month, U.S. District Judge Nancy Torresen denied McBreairty’s motion for a temporary restraining order and a preliminary injunction in his second lawsuit filed against RSU 22 which challenges the district’s rule that staff may not be named publicly at school committee meetings.
McBreairty has criticized teachers and staff by name at meetings of both boards. He claims to limit public comment is a violation of the 1st Amendment’s guarantee of free speech.
Torresen found the Hampden-area district’s rule reasonable. The 1st U.S. Circuit Court of Appeals in Boston on May 12 refused to hear the case on an emergency basis. A trial date in federal court in Bangor has not been set.
Meanwhile, Hermon’s lawsuit will go forward in state court in Bangor. The district sued McBreairty a year ago in Penobscot Superior Court after he allegedly referred to a teacher a “sexual predator” and “head of the hypersexualization movement” in statements on social media, his podcast, local radio and in a letter to the school department.
The teacher, who no longer works in Hermon, allegedly had to change classrooms, seek counseling and miss work because of the emotional distress that McBreairty’s statements caused, the complaint said.
The lawsuit asked the judge to declare that McBreairty engaged in bullying and harassing behavior toward the teacher, and that his behavior violates school policy. The department also wants a judge to prohibit McBreairty from engaging in similar behavior to protect other Hermon educators from future bullying and harassment, according to the complaint.
In his motion to dismiss the lawsuit, McBreairty claimed it violated Maine’s anti-SLAPP statute. SLAPP stands for strategic lawsuits against public participation that are generally aimed at silencing criticism.
Maine’s anti-SLAPP statute was enacted in 1995 with the intention of protecting activists who are sued by real estate developers for speaking out against proposed projects.
McBreairty argued in his motion to dismiss that his statements were opinion “similar to calling [a] person racist, unfair, or unjust.”
Mallonee agreed that McBreairty’s characterization of the teacher as “a leftist progressive who is an anti-Trumper” was an opinion but found that his other statements were purported as factual “without reasonable support,” including his allegedly labeling the teacher a sexual predator.
The judge also denied the motion to dismiss based on the district’s allegations that the teacher’s classroom had to be moved because of a “plausible sense of danger generated by his various communications.”
Melissa Hewey, the Portland attorney who represents both school districts, said Tuesday that the recent rulings “are of critical importance to schools and school boards around the state because they both clearly establish that members of the public do not have the right to bully school employees in the name of the First Amendment.”
McBreairty’s attorney, Marc Randazza of Gloucester, Massachusetts, said that Mallonee’s ruling will be appealed to the Maine Supreme Judicial Court and the federal case will move forward.
“If we had prevailed at the trial level [in state court], that would have no effect on civil liberties throughout Maine,” he said Tuesday. “It would’ve only protected Mr. McBriarty. Now, when the Maine Supreme Court corrects this order, it will help protect the rights of everybody in Maine.”
In September, RSU 22 paid McBreairty a $40,000 settlement after a federal judge ruled the district had illegally barred him from board meetings.
The next step in the legal process most likely is for both sides to file motions for summary judgment.