United States Court of Appeals For the First Circuit

No. 23-1389

SHAWN MCBREAIRTY,

Plaintiff, Appellant,

v.

HEATH MILLER, in his personal and official capacities; SCHOOL BOARD OF RSU 22,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Howard, Circuit Judges.

Marc J. Randazza, with whom Jay M. Wolman, Robert J. Morris, II and Randazza Legal Group PLLC were on the brief, for appellant Shawn McBreairty. Melissa A. Hewey, with whom Susan M. Weidner and Drummond Woodsum were on the brief, for appellees Heath Miller and School Board of RSU 22. J. Michael Connolly, with whom Consovoy McCarthy PLLC, Anastasia P. Boden and Laura A. Bondank were on the brief, for The Cato Institute, amicus curiae. Brett R. Nolan for Institute for Free Speech, amicus curiae. Jason Walta, with whom Benjamin K. Gant, Alice O'Brien, Philip A. Hostak and Nicole Carroll were on the brief, for the National Education Association and the Maine Education Association, amici curiae. February 21, 2024

- 2 - BARRON, Chief Judge. In this interlocutory appeal from

the District of Maine, Shawn McBreairty challenges the denial of

his request for a temporary restraining order and preliminary

injunction against a local school-board policy that he contends

violates the First Amendment by restricting him from saying certain

things at the board's public meetings. We vacate the decision

below because the record fails to show that McBreairty has standing

to seek the injunctive relief at issue.

I.

McBreairty filed the underlying suit in the United

States District Court for the District of Maine on March 24, 2023.

The defendants are the School Board of Regional School Unit 22 in

Maine and Heath Miller, who is the Board's chair.

The complaint set forth four counts, which sought,

respectively: (1) damages for a "[v]iolation of the First Amendment

to the United States Constitution: Retaliation"; (2) a declaratory

judgment and injunctive relief for a "[v]iolation of the First

Amendment to the United States Constitution"; (3) "relief" for a

"[v]iolation of the Article I Section 4 and Section 15 of the Maine

Constitution"; and (4) declaratory and injunctive relief for a

"[v]iolation of the Article I Section 4 and Section 15 of the Maine

Constitution."

The complaint alleged that the RSU 22 School Board holds

meetings at which members of the public may speak during a

- 3 - designated public-comment period. The complaint quoted from the

RSU 22 School Board's Public Participation Policy ("2020 Policy"),

which was attached as an exhibit.

The 2020 Policy states, in relevant part, that:

Confidential personnel information will not be shared in a public session. No complaints or allegations will be allowed at Board meetings concerning any person employed by the school system or against particular students. Personnel matters or complaints concerning student or staff issues will not be considered in a public meeting but will be referred through established policies and procedures.

Compl. ¶ 8 (emphasis in complaint). The 2020 Policy also states

that "[t]he Chair may interrupt or terminate an individual’s

statement when it is too lengthy, personally directed, abusive,

obscene, or irrelevant," and that "[t]he Chair has the authority

to stop any presentation that violates these guidelines or the

privacy rights of others." The 2020 Policy further provides that

"[a] speaker in violation of these rules may be required to leave

in order to permit the orderly consideration of the matters for

which the meeting was called" and that "the Chair may request law

enforcement assistance as necessary to restore order."

According to the complaint, McBreairty was not permitted

under the 2020 Policy "to even mention a teacher's name, unless it

is to praise that employee. Praise is allowed, but criticism is

not." In addition, the complaint alleged, McBreairty was stopped

from criticizing RSU 22 employees during his public comments at

- 4 - two separate RSU 22 School Board meetings that were held in early

2023.

The complaint alleged that the first of the two meetings

was held on February 15 and that McBreairty played an audio

recording of himself during the public-comment session of that

meeting "where he twice mentioned" the name of an RSU 22 teacher.

McBreairty attached as an exhibit to the complaint a video of the

meeting's public comment session during which he played the audio

recording.

The complaint alleged that the first time that

McBreairty mentioned the teacher's name during the audio recording

Miller "immediately warned Mr. McBreairty that 'we are not going

to mention names.'" The complaint alleged that the second time

McBreairty did so "Miller immediately ordered Mr. McBreairty to

stop his public comment and sit down. The School Board cut the

video feed, and the Hampden Police Department was contacted to

remove Mr. McBreairty from the school premises."

In addition to the video, the complaint also attached as

an exhibit the official report from the Hampden Police Department

of the call that was made to it to remove McBreairty from the Board

meeting. The report states that two officers responded and that

McBreairty agreed to leave the meeting with them but that he was

not arrested or charged with any crime.

With respect to the second of the two meetings, which

- 5 - was held on March 15, 2023, the complaint alleged as follows.

During the public comment session of that meeting, McBreairty

mentioned an RSU 22 teacher by name and "criticized her practices."

"Immediately after" McBreairty mentioned the teacher's name,

"Defendant Miller warned Mr. McBreairty stating, 'We are not going

to speak about school employees. This is your one warning.'"

McBreairty then also "criticized practices engaged in by" a

different teacher and "[i]mmediately after Mr. McBreairty

mentioned [the second teacher's] name, Defendant Miller ordered

Mr. McBreairty to stop speaking and sit down. The School Board

cut the video feed, and the police were contacted to remove Mr.

McBreairty from the school premises."

A video recording of the March 15 meeting that included

McBreairty's comments was attached as an exhibit to the complaint.

The complaint did not allege that McBreairty was arrested or

charged with any crime following his speech at the March 15

meeting.

On the same day that McBreairty filed the complaint, he

also filed an emergency motion for a temporary restraining order

("TRO") and preliminary injunction. The motion sought "the entry

of an injunction prior to the next RSU22 meeting on April 26,

2023." McBreairty did not attach any exhibits to this motion.

After receiving briefing from both sides, the District

Court held a hearing on McBreairty's motion on April 25, 2023. At

- 6 - this hearing, the only exhibit McBreairty submitted was a copy of

the public agenda for the RSU 22 School Board meeting that was to

take place on April 26, 2023.

The next day, the District Court denied the motion,

treating McBreairty's request for a TRO as merged with his request

for a preliminary injunction. See McBreairty v. Miller, No. 23-

00143,

, at *12 (D. Me. Apr. 26, 2023). McBreairty

timely appealed that decision. See

(a)(1).

While this appeal was pending, the RSU 22 School Board

amended the 2020 Policy. We refer to the new policy as the

2023 Policy. It states, in relevant part, that:

3(c) Discussion of personnel matters is not permitted during the public comment period due to the privacy, confidentiality and due process rights of school unit employees. For purposes of this policy, "discussion of a personnel matter" means any discussion, whether positive or negative, of job performance or conduct of a school unit employee. (d) Discussion of matters involving individual students are also not permitted during the public comment period due to the privacy, confidentiality, and due process rights of the school unit’s students. (e) Any concerns about personnel matters and/or student matters should be directed to the Superintendent or another appropriate administrator outside of Board meetings so that they can be addressed through an alternative channel and in a manner consistent with privacy, confidentiality, and due process rights of the individuals involved. (f) The Board Chair will stop any public comment that is contrary to these rules.

According to a sworn declaration by Miller, which was

- 7 - attached as an exhibit to the defendants' briefing in opposition

to McBreairty's motion for injunctive relief, the RSU 22 School

Board initiated the process of amending its public participation

policy at the suggestion of one of the members of the board who

"went to a presentation concerning various board policies," and

"came back . . . with the recommendation that the District change

its policy . . . such that the prohibition on discussion of

personnel matters relates not only to negative discussion but also

positive discussion." According to Miller's declaration, at this

member's urging, the RSU 22 School Board "reached out to the Maine

School Management Association and learned that a new policy would

be distributed for all districts to consider very soon. On March

15, 2023, [the Board] obtained a copy of the newly drafted" model

public participation policy, which the RSU 22 School Board adopted,

with some amendments, on June 16, 2023.

II.

The parties recognize that there is a potential

jurisdictional obstacle to our reaching the merits of the dispute

underlying this appeal because of the change to the 2020 Policy

that was made in 2023. They agree, however, that this change does

not moot this appeal, although the defendants contend that the

change does moot certain aspects of the appeal, given that the

2020 Policy itself is no longer in place.

We need not take on the mootness issue because it turns

- 8 - out that there is also another potential jurisdictional obstacle

to our reaching the merits of their dispute that we similarly are

not free to ignore. See Steel Co. v. Citizens for a Better Env't,

(1998) ("Every federal appellate court has a

special obligation to satisfy itself not only of its own

jurisdiction, but also that of the lower courts in a cause under

review, even though the parties are prepared to concede it."

(cleaned up)). And, as we will explain, this jurisdictional

obstacle, which concerns McBreairty's standing under Article III

of the U.S. Constitution to seek the injunctive relief at issue,

is an insurmountable one, even on de novo review. See Ramírez v.

Sánchez Ramos,

(1st Cir. 2006). We thus begin and

end our analysis with the standing question, which the parties did

not address in their briefing to us but which they have addressed

at our request in post-argument submissions. See Sinochem Int'l

Co. v. Malaysia Int'l Shipping Corp.,

(2007)

(holding that there is no required sequencing of jurisdictional

issues).

A.

Article III only permits federal courts to hear "Cases"

or "Controversies." See U.S. Const. art. III, § 2. To establish

that there is a case or controversy, a plaintiff must have standing

to obtain the relief sought. See Lujan v. Defs. of Wildlife,

(1992). For there to be standing, the plaintiff

- 9 - must have suffered an injury in fact, that is fairly traceable to

the challenged conduct, and that may be redressed by the requested

relief. See

. The component of Article III standing

that is in play here concerns injury in fact.

We have held that a plaintiff who, like McBreairty, also

was seeking injunctive relief from the enforcement of a limitation

on speech that allegedly violated the First Amendment lacked

Article III standing because she "never stated an intention to

engage in any activity that . . . fall[s] within the [challenged

rule]." Ramírez,

; see also Babbitt v. United Farm

Workers Nat'l Union,

(1979) (requiring a

plaintiff seeking injunctive relief under the First Amendment to

"allege[] an intention to engage in a course of conduct arguably

affected with a constitutional interest, but proscribed by [the

policy]," and that there "exists a credible threat of

prosecution").1 To be sure, one might wonder why a plaintiff who

seeks an injunction for a claimed First Amendment violation would

seek such relief absent a desire to engage in the future conduct

that the injunction would make possible. For that reason, one

1 A plaintiff can also assert First Amendment standing to seek injunctive relief by plausibly alleging that he "is chilled from exercising [his] right to free expression or forgoes expression in order to avoid enforcement consequences." See New Hampshire Right to Life Pol. Action Comm. v. Gardner,

(1st Cir. 1996). Neither the District Court nor McBreairty argue that he has adequately alleged standing on this theory, and we see no basis in the record for concluding that he did. - 10 - might wonder whether there is any sense in requiring that a

plaintiff seeking that relief for such a violation manifest

somewhere in the record an intent to engage in the speech on a

going forward basis. Why not simply infer that intention from the

request for the relief itself?

But Ramírez rightly recognizes the problem with our

relying on such surmise. Article III's "Case" or "Controversy"

requirement exists to ensure that we resolve only concrete, live

disputes and so do not end up rendering advisory opinions in what

are merely hypothetical disputes. And, as Ramírez recognizes, we

can be sure that a request for injunctive relief to permit future

speech presents a dispute of the former rather than latter kind

only if the one who seeks that relief has made manifest their

intention to engage in the speech in the future. See

. For, otherwise, even plaintiffs with no such intention

could obtain a First Amendment ruling from a federal court merely

by asking for an injunction.

Accordingly, for McBreairty to have standing to seek the

injunctive relief at issue here, he must have made the requisite

showing for this stage of the litigation that he has an intention

to engage in the speech in question at a future meeting of the RSU

22 School Board.2 As we will explain, he has not done so.

2 We assume, favorably to McBreairty, that a plaintiff's standing to seek a preliminary injunction "should be judged on the - 11 - 1.

In a Rule 28(j) letter that McBreairty submitted after

the issue of standing had been raised at oral argument on appeal,

McBreairty argues that the allegations in his complaint

sufficiently show that he has the requisite intention. He rests

this contention in part on the fact that his complaint uses the

present tense in setting forth certain allegations regarding the

conduct that he is challenging, as he maintains that this usage

impliedly reveals that he is alleging an intention to speak in the

future and not merely that he has so spoken in the past.

The complaint does use the present tense in setting forth

the allegations at various points, such as in passages that state

"McBreairty is not permitted to even mention a teacher's name,"

Compl. ¶ 9, or "Defendants' conduct of shutting down Mr.

McBreairty's speech and contacting the police to remove him from

RSU22 school premises . . . is unconstitutional and violates his

sufficiency of the allegations of the complaint, with any preliminary hearing evidence favorable to the plaintiffs on standing treated as additional allegations of the complaint," see Church v. City of Huntsville,

(11th Cir. 1994), rather than by the higher standard that would be required for a plaintiff to show standing at the summary-judgment stage, see Food & Water Watch, Inc. v. Vilsack,

(D.C. Cir. 2015) (requiring this higher showing to establish standing to seek a preliminary injunction); see also Lujan,

("[E]ach element [of the standing inquiry] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation."). - 12 - First Amendment rights," Compl. ¶ 23. But the former passage

appears only in the "Factual Background" section of the complaint,

while the latter passage appears only in the count that seeks

relief for retaliation. And, consistent with where each passage

appears in the complaint, each merely provides a description of

past events and makes no representations about what McBreairty

intends to do in the future.

Meanwhile, the present-tense passages that appear in the

only First Amendment-based claim for which McBreairty seeks

injunctive relief read merely as statements about the rule's

continued operation, see, e.g., Compl. ¶ 31 ("Rule 2 is a facially

unconstitutional viewpoint-based restriction that prohibits any

comments about RSU22 employees or students that the Chair deems is

negative."), or that refer to a past occurrence, see, e.g., Compl.

¶ 32 ("Other members of the public are permitted to address their

opinions about teachers while Mr. McBreairty's speech is silenced,

and he is ordered to leave."), without referring to what McBreairty

intends to do. Thus, those passages also fail to provide a basis

on which we could conclude that McBreairty's complaint alleges

that he has the requisite intention.

McBreairty does include a present-tense allegation in

Count III of the complaint, which concerns only his state

constitutional claim. There, the complaint states that McBreairty

"reasonably fears imminent injury." Compl. ¶ 36. But that

- 13 - allegation does little to enable McBreairty to show what he must

for present purposes, as it merely sets forth a legal conclusion,

not a factual representation about his future intentions.3 See

Ashcroft v. Iqbal,

(2009) ("While legal

conclusions can provide the framework of a complaint, they must be

supported by factual allegations.").

Of course, the complaint also contains a request for

injunctive relief. But, as we explained above, that request

cannot, in and of itself, suffice to show McBreairty has stated

the intention to engage in the speech for which he is requesting

injunctive relief. Otherwise, a plaintiff with no intention of

speaking in the future at all could call upon a federal court to

decide a constitutional question merely by, in effect, asking it

to do so, thereby securing the very kind of advisory opinion in a

hypothetical dispute that Article III exists to prevent. See

Babbitt,

. Indeed, the plaintiff in Ramírez

requested injunctive relief and yet we held there was no standing

because she did not allege "an intention to engage in [an]

activity" that would subject her to sanctions under the challenged

law.

.

Nor is this allegation sufficient to show that McBreairty's 3

future speech has been chilled, see Gardner,

, which, in any event, is not a theory of standing he presses to us or pressed before the District Court. - 14 - 2.

Notwithstanding the limitations of the complaint's

allegations, McBreairty contends in his 28(j) letter that

precedent shows that we should infer the required intention from

those allegations.

His strongest case in that regard is a district court

ruling from within our Circuit, Frese v. MacDonald,

(D.N.H. 2019), which held that the plaintiff there had

adequately alleged the necessary intention because the complaint

included an allegation that read: "[B]ased on his two prior arrests

under the statute, Mr. Frese reasonably fears future prosecution

under RSA 644:11 for his speech. He especially fears that he will

be arrested and/or prosecuted for speech criticizing law

enforcement and other public officials." Compl. ¶ 27, Frese v.

MacDonald,

(D.N.H. 2019) (No. 18-1180). The

case then later came to us on appeal after the district court

denied the defendant's motion to dismiss the plaintiff's amended

complaint, see Frese v. MacDonald (Frese II),

(D.N.H. 2021), aff'd sub nom. Frese v. Formella (Frese III),

(1st Cir. 2022), and we affirmed while noting that the

parties had not addressed standing but that we saw "no error" in

the district court's standing analysis, see Frese III,

n.2.

McBreairty's complaint, however, does not itself contain

- 15 - allegations regarding his future plans of even the sort that, as

we have seen, the plaintiff in Frese had made. McBreairty's most

analogous allegation, which we described above, appears only in an

allegation that is pertinent to one of his state law claims and

reads: "Plaintiff has been injured, or reasonably fears imminent

injury, by these constitutional violations, and Plaintiff is

entitled to relief." Compl. ¶ 36. That allegation does not refer,

however, to the type of speech that McBreairty would engage in and

instead is a purely conclusory legal assertion.

The other cases that McBreairty cites are of even less

help to him. The complaint underlying the Sixth Circuit decision

that McBreairty cites, Kiser v. Reitz,

(6th Cir.

2014), contained an express allegation that the plaintiff had

engaged in the prohibited speech before "and that he intends to do

so in the future,"

, while the out-of-circuit district

court cases McBreairty cites are similar, see Messina v. City of

Fort Lauderdale,

, 1233 (S.D. Fla. 2021)

(plaintiff alleged, among other things, that he "panhandles a few

times a week and would like to do so more often, but he doesn't

because of his fear of arrest"); Foothills Christian Church v.

Johnson, No. 22-0950,

, at *16 (S.D. Cal. June 15,

2023) ("Plaintiffs allege they plan to open and operate preschools,

which indisputably will be subject to the Act.").

Perhaps in some case a request for injunctive relief

- 16 - could combine with the allegations in a complaint, which on their

own would not be enough to make out the requisite intention by

implication, to nudge the allegations across the line. Perhaps

Frese may be such a case. But McBreairty's complaint is simply

too bare to warrant that conclusion, as, for the reasons we have

explained, it does not even allege what the complaint in Frese

did.

3.

In denying McBreairty's motion for a temporary

restraining order and preliminary injunction, the District Court

did note that "McBreairty has expressed that he would like to speak

at the next School Board meeting . . . scheduled for April 26,

2023." McBreairty,

, at *3. But the sole support

the District Court offered for this statement was the first page

of McBreairty's memorandum in support of his motion, which stated

that he "ha[d] been removed from two prior meetings, under threat

of arrest, for criticizing RSU22 employees -- and he intend[ed] to

do so again at the next meeting." An allegation in a pleading,

however, is not itself evidence that we may consider for these

purposes. Barrett v. Lombardi,

(1st Cir. 2001).

Indeed, McBreairty does not rely on this statement to contend that

he has shown what Ramírez requires.

B.

In sum, McBreairty has failed to make the showing that,

- 17 - under Ramírez, he must make to establish that he has standing to

seek the injunctive relief at issue. Accordingly, he cannot show

that this dispute over the denial of his request for that relief

presents a "Case" or "Controversy" within the meaning of Article

III, such that it is one over which a federal court has

jurisdiction.

III.

For the foregoing reasons we vacate the decision below

and remand to the District Court. No costs are awarded.

- 18 -