Brewer School Department policy did not apply to a post targeting a transgender student published by Shawn McBreairty, a U.S. District Court judge said.
McBreairty published an article in February 2024 that was in part about a transgender student using the girls bathroom. It included a picture of the student, who was fully clothed in the bathroom. The school department’s lawyer sent McBreairty an email that alluded to taking legal action if he did not remove the post.
He removed the post and then sued the school department. McBreairty died June 3. His wife, Patricia McBreairty, continued the lawsuit as the representative of his estate. Lawyers had asked Judge Lance Walker to issue decisions to potentially resolve the case without needing a trial.
Brewer school policies about anti-bullying and anti-hazing did not apply to McBreairty or his post, Walker said in an order Tuesday. It did not justify the conduct by Brewer schools that led to the lawsuit, he said.
The email from Brewer school’s lawyer would deter “a reasonably hardy person” to continue publishing the post, Walker said. It would especially deter a person like McBreairty, who was previously sued by the same law firm that was representing a current school district.
While professional journalists often choose to not identify minors in an article about controversial topics, those standards are not dictated by the First Amendment or Maine laws, Walker said.
McBreairty’s attorney, Marc Randazza, did not comment on the lawsuit when reached by the Bangor Daily News. But on X, the social media platform formerly known as Twitter, Randazza said McBreairty was his friend and he fought to ensure his friend’s legacy was that of a winner.
Brewer School Department Superintendent Gregg Palmer said he can’t comment on pending litigation.
Brewer schools did not make a solid argument about why speech should be regulated simply because it identifies “by name a child who is in the eye of the storm of a public controversy,” Walker said.
“It is natural for adults to endeavor to protect minors from the harsh light of a journalistic effort that wants to make them Exhibit A in a [controversial opinion piece],” he said.
The school department could have asked McBreairty to remove the photo for the sake of the people depicted in it, but a warning of legal consequences and the threat of future action was “over-exuberant saber rattling,” the ruling said.
While the article was highly offensive to the transgender teenager, it was also “of legitimate
concern to the public,” and related to the student’s public life at the high school, Walker said.
“It bears stating, as well, that the irony in this case is palpable,” Walker’s ruling said. “To respond to bullying the School Department enlisted legal counsel to demand revision upon threat of further action, despite the School Department’s blatant lack of standing to pursue relief under any of the statutory provisions it cited. The School Department and its counsel effectively determined that such a tactic was justified insofar as they would have performed some kind of public service.”
In the order, Walker dismissed Brewer High School Principal Brent Slowikowski as a defendant from the lawsuit. He denied motions for summary judgments for the school department and Palmer.
The lawsuit is scheduled to go to trial July 2.