United States Court of Appeals
For the First Circuit
No. 23-1817
KARI MACRAE,
Plaintiff, Appellant,
v.
MATTHEW MATTOS; MATTHEW A. FERRON; HANOVER PUBLIC SCHOOLS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Gelpí, Selya, and Thompson,
Circuit Judges.
Michael Bekesha, with whom Judicial Watch, Inc. was on brief,
for appellant.
Gregor A. Pagnini, with whom Leonard H. Kesten, Deidre Brennan
Regan, and Brody, Hardoon, Perkins & Kesten LLP were on brief, for
appellees.
June 28, 2024
THOMPSON, Circuit Judge. Today's appeal was brought by
Kari MacRae ("MacRae"), a former teacher at Hanover High School
("Hanover High") in Hanover, Massachusetts, against Hanover High's
principal Matthew Mattos ("Mattos"), Hanover High's superintendent
Matthew A. Ferron ("Ferron"), and Hanover Public Schools ("the
District" and, collectively with Mattos and Ferron, "Defendants").
And here's the CliffsNotes' version of how the parties made it to
our bench: MacRae posted six allegedly controversial memes to her
personal TikTok account.1 A few months after posting the first
few of the six memes, she interviewed for a teaching position at
Hanover High and got the job. Soon after starting there, MacRae's
TikTok posts came to light and things hit the proverbial fan.
Concluding that to "continu[e] [her] employment in light of [her]
social media posts would have a significant negative impact on
student learning" at Hanover High, Defendants terminated MacRae's
employment.
Positive that Defendants had unconstitutionally
retaliated against her for exercising her First Amendment rights,
1 For those readers who don't keep up with the social-media
trends of the day, "meme" is defined as either "an idea, behavior,
style, or usage that spreads from person to person within a
culture" or "an amusing or interesting item (such as a captioned
picture or video) or genre of items that is spread widely online
especially through social media," Simpson v. Tri-Valley Cmty. Unit
Sch. Dist. No. 3, 470 F. Supp. 3d 863, 866 n.3 (C.D. Ill. 2020),
and "TikTok is a video-sharing social-media platform," Couture v.
Noshirvan, No. 23-cv-340,
2023 WL 8280955, at *1 (M.D. Fla. Nov.
30, 2023).
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MacRae took them to court. But Defendants didn't agree with her
take on things, and neither did the district court, which granted
their motion for summary judgment. Now on appeal, MacRae implores
us to do some course correction and fix what she says the district
court got wrong. After taking the time to carefully review both
sides' arguments, however, we conclude that the district court got
it right. In other words, we affirm, but before explaining our
reasons for doing so, a bit of factual and procedural table-setting
is in order.
TABLE-SETTING
To begin, we set the table with a factual and procedural
summary of how the parties got here. And as this is an appeal of
the grant a motion for summary judgment, we lay out the facts in
the light kindest to the nonmovant (here, MacRae), drawing all
reasonable inferences in her favor but only to the extent such
inferences are supported by the record. Hamdallah v. CPC Carolina
PR, LLC, 91 F.4th 1, 8 n.1 (1st Cir. 2024). The following facts
are uncontested, unless indicated otherwise.
The TikTok Posts
MacRae is a Bourne, Massachusetts resident, who started
working as a teacher in 2015 and has held several teaching
positions since then. In or around 2019, she created her own
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personal TikTok account under the username of "NanaMacof4."2 At
different points in 2021, but all prior to her employment at
Hanover High, MacRae liked, shared, posted, or reposted the
following six memes using her NanaMacof4 TikTok account:
• A photo of Dr. Rachel Levine, the United
States Assistant Secretary for Health and a
transgender woman, with text that reads:
"'I'm an expert on mental health and food
disorders.' . . . says the obese man who
thinks he's a woman."
• A text display that reads: "I feel bad for
parents nowadays. You have to be able to
explain the birds & the bees . . . The bees
& the bees . . . The birds & the birds . . .
The birds that used to be bees . . . The
bees that used to be birds . . . The birds
that look like bees . . . Plus bees that
look like birds but still got a stinger!!!
. . ."
• A photo of a muscular, bearded man wearing
a sports bra with text at the top that
reads: "Hi my name is Meagan, I'm here for
the Girl's track meet." The photo then
includes additional text at the bottom that
reads: "Equality doesn't always mean
equity."3
• A photo of a young and (presumably) white
American man with text that reads:
"Retirement Plan: 1) Move to Mexico 2) Give
2 The account itself did not identify MacRae by name or
indicate where she worked.
3 At MacRae's deposition, she confirmed that she liked,
shared, posted, or reposted all six memes using her NanaMacof4
TikTok account. In a subsequent, sworn declaration, though, she
backtracked her deposition testimony as it related to this track
meet meme. She clarified that she did not post it herself, but
rather another TikTok user posted it and tagged her NanaMacof4
account. Regardless of whether MacRae herself posted the track
meet meme, it would still appear if someone searched "NanaMacof4"
on TikTok, she confirmed that she stood by the views expressed on
her TikTok page and in her posts "[o]ne hundred percent," and
nothing in the record suggests she ever removed the tag.
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up citizenship 3) Come back illegally 4)
Set for life!"
• A photo of a panda bear with text that
reads: "Dude, racism is stupid. I am
black, white, and Asian. But everyone loves
me."
• A photo of Thomas Sowell with a quote that
reads: "Racism is not dead, but it is on
life support -- kept alive by politicians,
race hustlers and people who get a sense of
superiority by denouncing others as
'racists.'" The photo then includes
additional text at the top that reads:
"Thank you Mr Sowell!!"
Also in 2021, MacRae ran unchallenged for a seat in her
hometown on the Bourne School Committee, which was scheduled to
hold an election on May 17, 2021. On election day, MacRae posted
a campaign video on her NanaMacof4 TikTok account. In the video,
she can be seen discussing her election platform and beliefs as a
school board candidate:
So pretty much the reason why I ran for school
board and the reason why I'm taking on this
responsibility is to ensure that students, at
least in our town, are not being taught
critical race theory. That they're not being
taught that the country was built on racism.
. . . So . . . they're not being taught that
they can choose whether or not they want to be
a girl or a boy. . . . It's one thing to
include and it's one thing to be inclusive.
And it's one thing to educate everybody about
everything. It's completely another thing to
push your agenda. . . . With me on the school
board, that won't happen in our town.4
4 For those curious readers, the video can be seen here:
Massachusetts teacher fired over TikTok school board campaign
video on CRT, Fox News (Dec. 2, 2021), https://www.foxnews.com/
video/6284889512001 [https://perma.cc/MZ2X-TMGQ].
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MacRae won the election.
A few months after her election win, in late August 2021,
MacRae interviewed with the District's Curriculum Director Matthew
Plummer ("Plummer") for a teaching position at Hanover High, a
public school in Massachusetts about forty-five minutes away from
Bourne. At the time of the interview, Plummer did not know about
MacRae's TikTok posts or that she was an elected member of the
Bourne School Committee. By letter dated August 25, 2021, the
District informed her that she got the job and was set to start
teaching math and business courses on September 1, 2021. Among
the students MacRae was hired to teach were both African American
and LGBTQ+5 students.
The Fallout
On the very same day that MacRae was hired for the
position at Hanover High, August 25, 2021, the Bourne School
Committee received a letter from a "concerned citizen" complaining
about MacRae's TikTok posts. That letter had a domino effect,
which ultimately resulted in the termination of MacRae's
employment at Hanover High.
5 This acronym stands for "'lesbian, gay, bisexual,
transgender and queer' with a '+' sign to recognize the limitless
sexual orientations and gender identities used by members of the
LGBTQ+ community." Macdonald v. Brewer Sch. Dep't, 651 F. Supp.
3d 243, 252 n.2 (D. Me. 2023) (citation omitted) (cleaned up).
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During the evening of September 1, 2021 (the same day
MacRae started teaching at Hanover High), the Bourne School
Committee held an executive session, at which it determined that
some of MacRae's TikTok posts violated the core values of Bourne
Public Schools. The Bourne School Committee also stated it would
have a public resolution at its next meeting to further address
the issue and hear a "more formal statement" from MacRae. MacRae
did not inform any Defendant about her posts or any of the
goings-on related to the Bourne School Committee's September 1,
2021 executive session.
In the following days, the situation worsened. On
September 15, 2021, the Bourne School Committee and Committee
Chairperson were informed "that the social media posts directed at
the LGBTQ population had circulated and staff and students were
very upset." The Bourne Educators Association also met and voted
unanimously "to make a public statement against the comments made
by" MacRae.
All of this commotion ended up attracting the attention
of the Cape Cod Times, a local newspaper which published an article
about MacRae on Friday, September 17, 2021. The article discussed
MacRae's social media activity and the reactions thereto from the
Bourne School Committee and members of the Bourne community. It
also indicated that the Bourne School Committee had scheduled its
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next meeting for Wednesday, September 22, 2021, during which MacRae
and members of the public could make a statement.6
By the morning of Monday, September 20, 2021, Plummer
caught wind of the Cape Cod Times article because Stacey Pereira
("Pereira"), a business teacher at Hanover High, had seen the
article over the weekend on her Facebook feed,7 was concerned about
its impact on the students, and brought it to Plummer's attention.
Plummer thereafter sent a link to the article to Mattos and Ferron,
who (to refresh the memory) are Hanover High's principal and
superintendent, respectively. Their response was swift: Later
that same morning, Mattos met with MacRae to inform her that
Defendants had learned of her social media posts and had chosen to
6 Any reader interested in reading the Cape Cod Times article
can do so here: Cynthia McCormick, Should a Bourne School
Committee member resign because of her TikTok videos? Some say
yes, Cape Cod Times (Sept. 17, 2021), https://www.capecodtimes.c
om/story/news/2021/09/17/kari-macrae-bourn-school-committeemember-tiktok-controversial-lgbtq-critical-race-theorystatements/8367424002/ [https://perma.cc/5V7W-CTA5]. It's also
worth noting that the media coverage was not limited to just this
one Cape Cod Times article. For example, one publication that
also picked up the story prior to MacRae's eventual termination
was Boston.com, whose article can be found here: Julia Taliesin,
Bourne teachers want school committee member to resign after TikTok
posts about race, gender, Boston.com (Sept. 22, 2021),
https://www.boston.com/news/local-news/2021/09/22/bourneteachers-school-committee-resign-tiktok-race-gender/
[https://perma.cc/3K54-KAN5]. MacRae's story also got some
airtime on local television.
7 Again, for readers behind on today's social-media trends,
Facebook "is a social networking [site] that allows users to
communicate by creating Facebook 'pages.'" Ahmed v. Hosting.com,
28 F. Supp. 3d 82, 85 (D. Mass. 2014) (citations omitted) (cleaned
up).
- 8 -
place her on paid administrative leave pending an investigation.
Within the first day or so of MacRae's leave, Andrew McLean
("McLean"), a science teacher at Hanover High and Vice President
of the Hanover Teacher's Union, overheard some students talking
about MacRae's social media posts, but, when asked during a
deposition taken a year later, could not recall the exact details
of the students' conversation.
Wednesday, September 22, 2021 finally arrived and
brought with it the Bourne School Committee's meeting. At the
meeting, several people presented their concerns regarding
MacRae's social media posts, including that "the posts did not
create a safe, inclusive or welcoming learning environment within
the school community." Among the speakers against the posts was
a transgender student who highlighted that MacRae's posts were
harmful to himself and any other transgender student. Other
speakers put forth statistical data regarding the elevated risk of
suicide in LGBTQ+ and African American youth. There were also
some speakers who voiced support for MacRae. MacRae's supporters
expressed their opinions that critical race theory should not be
taught in Bourne Public Schools and that the Bourne School
Committee was engaging in a "witch hunt" against MacRae. During
the meeting, MacRae apologized not for her social media posts, but
rather for the media attention her social media posts brought to
Bourne Public Schools and the Bourne School Committee. As part of
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Defendants' investigation into MacRae's social media posts, Ferron
tuned in online for part of the Bourne School Committee meeting
and discussed it with Plummer and Mattos the next day, September
23, 2021.8
Also as part of Defendants' investigation, Mattos
interviewed MacRae on September 24, 2021. Ann Galotti ("Galotti"),
Hanover High's Math Department Head, and McLean were also in
attendance for this interview. During the interview, MacRae
received a copy of her TikTok posts and a document containing the
District's Mission Statement, Beliefs, and Core Values. The listed
Beliefs included "[e]nsur[ing] a safe learning environment based
on respectful relationships." Among the Core Values listed were
"[c]ollaborative relationships" and "[r]espect for human
differences." The interview involved Mattos asking MacRae a series
of questions, including if she could "see how the media coverage
may be widespread among students and staff, [and] families of
Hanover High School." She "agreed that there w[ere] probably some
students and staff that were aware of it."
8 Also on September 23, 2021, the Cape Cod Times published
another article on MacRae, this time recapping the happenings at
the Bourne School Committee's September 22, 2021 meeting. Paul
Gately, Bourne school board member won't resign over social media
posts, Cape Cod Times (September 23, 2021),
https://www.capecodtimes.com/story/news/2021/09/23/kari-macraewont-resign-bourne-school-committee-over-tik-tok-lgbtq-critical-race-theory/5824685001/ [https://perma.cc/M9UN-JTW3].
- 10 -
As Mattos and Ferron were concerned about the potential
negative impact MacRae's social media posts would have on staff
and students, they decided, with input from Plummer, to terminate
her employment. On September 29, 2021, Defendants sent MacRae a
termination letter, explaining that "continuing [her] employment
in light of [her] social media posts would have a significant
negative impact on student learning" at Hanover High.
At some point during all this, TikTok deleted MacRae's
NanaMacof4 account for "community standard violations" relating to
the posts at issue today.9
The Lawsuit
MacRae did not take her termination on the chin. Rather,
she filed the instant lawsuit on November 29, 2021, and later
amended her complaint to assert a single claim against Defendants
under 42 U.S.C. § 198310 for allegedly retaliating against her for
exercising her First Amendment rights. Defendants eventually
filed a motion for summary judgment. In their motion, they argued
9 Also worth mentioning is that a later effort to recall
MacRae from the Bourne School Committee proved unsuccessful due to
deficiencies in the recall paperwork. Paul Gately, Unaffirmed
signatures de-rail efforts to recall school committee's Kari
MacRae, Cape Cod Times (Feb. 15, 2022),
https://www.capecodtimes.com/story/news/2022/02/15/cape-codkari-macrae-recall-effort-de-railed-bourne-petition-signatureissue/6803511001/ [https://perma.cc/64C7-JA8Q].
10 At the risk of oversimplification, this statute allows a
party to seek "money damages against state actors who violate the
[federal] Constitution." Quinones-Pimentel v. Cannon, 85 F.4th
63, 68 (1st Cir. 2023).
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that (1) when applying the First Amendment retaliation framework
for claims brought by public employees against their government
employers, Defendants' interest in preventing disruption to the
learning environment at Hanover High outweighed MacRae's First
Amendment interest; and (2) Mattos and Ferron were entitled to
qualified immunity.11
MacRae, on the other hand, had a much different view of
the issues. In her opposition, she argued that (1) the First
Amendment retaliation framework for claims brought by public
employees against their government employers should not apply here
because she posted the memes to her TikTok account before she
started the job at Hanover High and, thus, her posts constituted
pre-employment speech; (2) even if that framework did apply, there
were seven genuine disputes of material fact that precluded the
district court from giving Defendants a summary-judgment win under
that framework,12 and, regardless, her First Amendment interest
11 For those new to all this legal mumbo jumbo, qualified
immunity is a judge-created doctrine, which lets public officials
off the hook for money damages when they decide open legal
questions in reasonable (but ultimately wrong) ways. Ciarametaro
v. City of Gloucester, 87 F.4th 83, 87-88 (1st Cir. 2023).
12 The seven alleged genuine disputes of material fact were
(1) whether the TikTok campaign video factored into Defendants'
decision to fire MacRae; (2) whether MacRae posted the track meet
meme; (3) whether Defendants fired MacRae because they allegedly
disliked her TikTok posts (as opposed to for their stated concern
regarding disruption to the learning environment); (4) whether
Defendants misinterpreted MacRae's intent in posting the memes and
video; (5) whether Defendants were aware of any teacher's concerns
about MacRae's TikTok posts; (6) whether MacRae acknowledged that
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outweighed Defendants' interest; and (3) those same genuine
disputes of material fact precluded the district court from
granting Mattos and Ferron qualified immunity.
For its part, the district court agreed with Defendants'
takes on things, concluding that (1) the framework for claims
brought by public employees applied; (2) the factual disputes
MacRae raised did not amount to genuine disputes of material fact;
(3) Defendants' interest in preventing disruption outweighed
MacRae's free speech interests; and (4) Mattos and Ferron were
entitled to qualified immunity.
Not to be outdone, MacRae filed a timely appeal and
brought the case to our attention.
THE MAIN COURSE
With the table set, we turn our attention to the main
course: the merits of MacRae's appeal. Remember that MacRae
raised only one claim under 42 U.S.C. § 1983 against Defendants
for terminating her employment and thereby (allegedly) retaliating
against her for exercising her First Amendment rights. To state
a § 1983 claim, she must make a two-part showing that Defendants
acted under color of state law and that they denied her a right
secured by the federal Constitution or federal law. Najas Realty,
her TikTok posts may impact the learning environment at Hanover
High; and (7) whether MacRae's TikTok posts caused or would cause
a disruption to learning.
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LLC v. Seekonk Water Dist., 821 F.3d 134, 140 (1st Cir. 2016).
Because no one disputes that Defendants were acting under color of
state law when they let MacRae go, the only real question before
us is whether they violated her First Amendment rights in doing
so.
As to that question, MacRae essentially makes only two
arguments on appeal: The First Amendment retaliation framework
for claims brought by public employees does not apply here and,
even if it did, Defendants' interest does not outweigh her First
Amendment interest.13 Defendants naturally disagree with both
arguments and, as it turns out, so do we. Before explaining why
we disagree, though, we press pause to describe our standard of
review.
Standard of Review
Summary-judgment decisions get de novo review on appeal,
which, to speak plainly, just means that we give the arguments and
the issues a fresh look without any deference to the district
Eagle-eyed readers following along closely will note that
13
conspicuously absent from this list is any challenge on MacRae's
part to the district court's determinations that there were no
genuine disputes of material fact and that Mattos and Ferron are
entitled to qualified immunity. In practice, this means two
things. First, any arguments MacRae might have had on those fronts
have been waived. Hamdallah, 91 F.4th at 18 n.21. Second, even
though MacRae appears to frame her appeal against Defendants
collectively, by not challenging the district court's
qualified-immunity decision, the only issue before this Court is
the entry of summary judgment in favor of the District.
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court's reasoning. Hamdallah, 91 F.4th at 16; United States v.
Soler-Montalvo,
44 F.4th 1, 7 (1st Cir. 2022). In doing so, the
bottom-line questions we must answer are whether there are any
genuine disputes of material fact and whether the summary-judgment
movants (here, Defendants) are entitled to judgment as a matter of
law based on those undisputed facts. Hamdallah,
91 F.4th at 16.
Crucially, however, in answering those questions we must examine
the facts in the light most favorable to the summary-judgment
nonmovant (here, MacRae) and draw all reasonable inferences
supported by the record in her favor. Rivera-Corraliza v.
Puig-Morales,
794 F.3d 208, 214 (1st Cir. 2015). A dispute is
genuine when a reasonable factfinder could come out in favor of
the nonmoving party based on the evidence, and a fact is material
when there's a chance it could affect the case's ultimate outcome.
Hamdallah,
91 F.4th at 16.
The Framework
Our standard of review in place, we first turn our
attention to the parties' squabble over whether the First Amendment
retaliation framework for claims brought by public employees
applies to MacRae's claim. As a refresher, MacRae argues we
shouldn't apply that framework, whereas Defendants argue we
should. To explain our decision, we'd better start off with an
explanation of that framework and its underlying rationale.
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The right to speak on matters of public concern is
guaranteed by the First Amendment. See U.S. Const. amend. I. And
that right is not lost when an individual chooses to work for the
government. See Curran v. Cousins, 509 F.3d 36, 44 (1st Cir.
2007). That said, in Garcetti v. Ceballos, the Supreme Court
explained that government employers need some leeway in
controlling their employees' speech for a variety of reasons:
Government employers . . . need a significant
degree of control over their employees' words
and actions; without it, there would be little
chance for the efficient provision of public
services. Public employees, moreover, often
occupy trusted positions in society. When
they speak out, they can express views that
contravene governmental policies or impair the
proper performance of governmental functions.
547 U.S. 410, 418-19 (2006) (internal citation omitted). Given
these considerations, public employees' First Amendment rights
"are not absolute," Curran,
509 F.3d at 44, and so public employees
"by necessity must accept certain limitations on [their] freedom,"
Garcetti,
547 U.S. at 418. At the same time, though, they need
only accept "those speech restrictions that are necessary for their
employers to operate efficiently and effectively." Garcetti,
547
U.S. at 419; see also
id. at 418 ("[T]he restrictions [the
government entity] imposes must be directed at speech that has
some potential to affect the entity's operations.").
The upshot of all this is that, when a state government
employer retaliates against its employee for exercising First
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Amendment rights, that employee can pursue a claim under 42 U.S.C.
§ 1983. See Bruce v. Worcester Reg'l Transit Auth.,
34 F.4th 129,
134-35 (1st Cir. 2022). But, in order to balance the competing
interests of the government employer and the employee, such a claim
must be pursued under the well-established framework announced by
the Supreme Court in Garcetti.
547 U.S. at 418 (describing
framework); see Curran,
509 F.3d at 45 (noting Garcetti framework
is "consistent with this circuit's prior three-part test").
At step one, we "determin[e] whether the employee spoke
as a citizen on a matter of public concern." Garcetti, 547 U.S.
at 418. If the employee did not speak as a citizen on a matter of
public concern, the inquiry ends there and "the employee has no
First Amendment cause of action based on his or her employer's
reaction to the speech."
Id. If the employee did speak as a
citizen on a matter of public concern, "then the possibility of a
First Amendment claim arises" and we move on to step two.
Id.
At step two, we must determine "whether the relevant
government entity had an adequate justification for treating the
employee differently from any other member of the general public."
Id. In answering this question, we "must balance the interests of
the employee, as a citizen, in commenting upon matters of concern
and the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
employees." Davignon v. Hodgson,
524 F.3d 91, 100 (1st Cir. 2008)
- 17 -
(citation and internal quotations mark omitted). This balancing
act is commonly referred to as Pickering balancing after the
Supreme Court's decision in Pickering v. Board of Education of
Township High School District 205, Will County, 391 U.S. 563, 568
(1968), which articulated the original version of the balancing
test. If the balancing scales tip in the employer's favor, the
inquiry ends there, and the employee's speech is not
constitutionally protected. But, if the balancing scales tip in
the employee's favor, the employee's speech "is protected speech
under the First Amendment" and "[t]he analysis then proceeds to
the third step." Ciarametaro,
87 F.4th at 88.
At step three, we determine whether the employee's
protected speech "was a substantial or motivating factor in the
adverse employment decision." Curran, 509 F.3d at 45. Even if
the plaintiff satisfies their burden at all three steps, the
employer then has the opportunity "to prove by a preponderance of
evidence that 'it would have reached the same decision regarding
the adverse employment event even in the absence of the protected
conduct.'" Stuart v. City of Framingham,
989 F.3d 29, 35 (1st
Cir. 2021) (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle,
429 U.S. 274, 287 (1977)) (cleaned up). These three steps
balance the opposing goals of "promot[ing] the individual and
societal interests that are served when employees speak as citizens
on matters of public concern and . . . respect[ing] the needs of
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government employers attempting to perform their important public
functions." Garcetti, 547 U.S. at 420.
Turning back to MacRae's argument, she urges us to chuck
the Supreme Court's nuanced Garcetti framework for claims brought
by public employees out the window and apply, in its stead, the
framework for claims brought by private individuals against
government entities who retaliate against them. That framework
only requires consideration of whether the plaintiff can show that
they engaged in constitutionally protected conduct and that there
was a causal connection between the constitutionally protected
conduct and the allegedly retaliatory response. Najas Realty,
LLC, 821 F.3d at 141.14 Notably, this framework, unlike the
Garcetti framework, omits any consideration of the government's
interest and, in MacRae's view, is therefore less "government
friendly." According to MacRae, we should apply this less
"government friendly" framework because "MacRae's speech occurred
months before she was employed" by Defendants. Applying the
Garcetti framework to pre-employment speech, MacRae warns, would
force individuals who may want to eventually work for the
14 Najas Realty, LLC, a First Amendment retaliation claim
regarding a plaintiff's purchase of land and the defendants'
opposition to the plaintiff's plan to develop that land, is not
even remotely factually analogous to MacRae's case. 821 F.3d at
137, 139. In fact, this Court has no caselaw on the books applying
the framework described in Najas Realty, LLC to a claim such as
MacRae's.
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government to self-censor. In her view, because social media usage
is ubiquitous and can start as early as twelve years old, applying
the Garcetti framework to pre-employment speech would allow
government employers "to fire employees because of their speech
from their teenage years, even if the speech occurred 30 years
prior to their employment." Having taken the time to mull over
MacRae's arguments, we decline her invitation to use the framework
for private individuals and opt for the Garcetti framework for
public employees. And we do so for several reasons.
To start with the most obvious reason, the allegations
at issue here involve a government employer firing its public
employee for their speech. As the Garcetti framework is used "[t]o
determine whether an adverse employment action against a public
employee violates her First Amendment free speech rights,"
Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011), MacRae's
allegations place us squarely within that framework. Indeed, the
retaliatory response MacRae complains of -- namely, her
termination -- is inexorably linked to the fact that she was a
public employee.
Second, the framework MacRae would have us apply
involves no consideration of the important government interests
articulated in Garcetti. We see no reason (and MacRae has provided
none) why the government's interest in the efficient provision of
public services would simply evaporate into thin air just because
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the speech in question occurred prior to the start of employment
and the employer did not learn of the purported disruptive speech
until after the employee began working for it.
Third, the facts at issue here are a far cry from
MacRae's hypothetical of a government employer firing an employee
for speech "from their teenage years" that "occurred 30 years prior
to their employment." MacRae's pre-employment speech was not
nearly as temporally removed from the start of her employment. By
MacRae's own recollection, she posted four of the six memes on
March 16, 18, 24, and 29, 2021 -- only five months before her
late-August-2021 interview and her September 1, 2021 start date.
She then posted a fifth meme (again, according to MacRae's own
timeline) on August 13, 2021 -- mere weeks before her interview
and start date at Hanover High.15 And don't forget, at the Bourne
School Committee's September 22, 2021 meeting (which, to be clear,
occurred while MacRae was already employed at Hanover High), she
did not apologize for the memes but instead for the media attention
her TikTok posts brought to Bourne Public Schools and the Bourne
School Committee. This is not to say MacRae should or should not
have apologized for her posts but, by failing to express any
regrets for the substance of the posts, she essentially reaffirmed
the views articulated therein while in a public forum and employed
15Nowhere does MacRae explain when in 2021 the other TikTok
user allegedly tagged her in the track meet meme.
- 21 -
by Defendants. Indeed, at her deposition, MacRae confirmed she
still held the views expressed in her posts "[o]ne hundred
percent." In our view, therefore, the relatively short period of
time between MacRae's posts and the start of her employment
counsels in favor of applying the Garcetti framework to the facts
at issue here.
Fourth, applying the Garcetti framework to
pre-employment speech aligns with the limited caselaw dealing with
similar claims. Between the parties' research and our own, we
have located only two cases involving alleged First Amendment
retaliation for pre-employment speech and, by our reading, both
cases applied the Garcetti framework. The first case is Riel v.
City of Santa Monica, No. CV 14-04692, 2014 WL 12694159 (C.D. Cal.
Sept. 22, 2014). There, Elizabeth Riel ("Riel"), a newly-hired
public affairs officer for the City of Santa Monica ("the City"),
was fired because she had previously written newspaper articles
that were critical of the City. Id. at *1-2. In denying the
City's motion to dismiss, the court determined that Riel had stated
a valid claim for First Amendment retaliation. Id. at *6-8.
Notably, in analyzing the claim, the district court outlined the
Garcetti framework (including by citing to that decision) and
explicitly balanced the City's interest "in the effective
administration of its duties" against Riel's First Amendment
rights. Id. at *4, *6-7.
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The second case is Cleavenger v. University of Oregon,
No. CV 13-1908, 2015 WL 4663304 (D. Or. Aug. 6, 2015), which MacRae
argues supports her position because, according to her, the court
there supposedly applied the framework for private citizens to
pre-employment speech. It did no such thing. There, the plaintiff
James Cleavenger ("Cleavenger") claimed the University of Oregon
Police Department ("UOPD") terminated him in part because of a
pre-employment public speech that was posted to YouTube where he
criticized the University of Oregon for providing tasers to UOPD
officers. Id. at *2. To analyze Cleavenger's First Amendment
retaliation claims, the court noted the analysis required
consideration of the following factors:
(1) whether the plaintiff spoke on a matter of
public concern; (2) whether the plaintiff
spoke as a private citizen or public employee;
(3) whether the plaintiff's protected speech
was a substantial or motivating factor in the
adverse employment action; (4) whether the
state had an adequate justification for
treating the employee differently from other
members of the general public; and (5) whether
the state would have taken the adverse
employment action even absent the protected
speech.
Id. at *6 (quoting Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.
2009)). The quoted text mirrors the framework announced in
Garcetti and demonstrates that the Cleavenger court believed that
framework applied even in the context of pre-employment speech.
Moreover, the Cleavenger court cited Garcetti throughout its
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decision. Id. at *8-9, *14. While the court certainly expressed
misgivings about the implications of government retaliation for
pre-employment speech, particularly given the advent of the
internet, id. at *11-12, nothing in the decision even remotely
suggests the framework for public employees' First Amendment
retaliation claims should be set aside when the speech at issue is
pre-employment speech. To be sure, the parties in that case urged
the court to apply the framework for private individuals to
Cleavenger's pre-employment speech claim, but the district court
did not even bother to mention that framework in its decision.
In sum, on these facts and this particular timeline of
events, we see no pressing reason to depart from the Supreme
Court's tried-and-true mode of analysis for public employees'
First Amendment retaliation claims simply because MacRae posted
the memes at most a few months before and at least a few weeks
before her government employment.
The Application
Having determined that the Garcetti framework applies,
all that is left for us to do is actually apply that framework to
the facts at issue here. Both parties agree that MacRae, in
posting the memes, spoke as a citizen on a matter of public concern
and the memes were a substantial and motivating factor behind
Defendants' decision to terminate her employment, thereby
satisfying steps one and three of this Court's application of the
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Garcetti framework. Curran, 509 F.3d at 45. Therefore, the sole
issue that remains in dispute is step two -- the Pickering
balancing of MacRae's First Amendment interest and Defendants'
interest in preventing disruption.
MacRae argues that her First Amendment interest
outweighs Defendants' interest and the district court erred in
concluding otherwise. Specifically, she argues that (1) a
government employer's mere prediction of disruption is
insufficient to outweigh an employee's interest in engaging in
political speech; (2) the reasonableness of a government
employer's prediction of disruption is a question for the jury;
and (3) Defendants' prediction of disruption was unreasonable.
None of these arguments persuade, and we'll explain why after a
quick primer on Pickering balancing.
While the Pickering balancing inquiry is "a matter of
law for the court to decide," Bruce, 34 F.4th at 138, it is also
a "fact-intensive" inquiry, Fabiano v. Hopkins,
352 F.3d 447, 457
(1st Cir. 2003) (citation and internal quotation marks omitted),
demanding "a hard look at the facts of the case, including the
nature of the employment and the context in which the employee
spoke," Decotiis,
635 F.3d at 35. At bottom, the analysis
"requires a balancing of the value of an employee's speech against
the employer's legitimate government interest in preventing
unnecessary disruptions and inefficiencies in carrying out its
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public service mission." Davignon, 524 F.3d at 103 (citation and
internal quotation marks omitted) (cleaned up). The government
employer's interest must be proportional to the value of the
employee's speech; in other words, "the stronger the First
Amendment interests in the speech, the stronger the justification
the employer must have." Curran,
509 F.3d at 48 (citing Connick
v. Myers,
461 U.S. 138, 150 (1983)). In analyzing the government's
interest, a court may consider a whole host of factors, including
"(1) the time, place, and manner of the employee's speech, and (2)
the employer's motivation in making the adverse employment
decision." Davignon,
524 F.3d at 104 (citations omitted). If,
after taking into account all of these factors, we determine that
"the relevant government entity had an adequate justification for
treating the employee differently from any other member of the
general public," Garcetti,
547 U.S. at 418, then the employee's
speech is not constitutionally protected and no First Amendment
retaliation claim lies.
Against that legal backdrop, we proceed to balance the
parties' competing interests. Starting with MacRae, there is no
dispute about the content of the memes. Viewing the facts in the
light most favorable to MacRae (as we must on summary judgment),
some of her memes touched upon hot-button political issues, such
as gender identity, racism, and immigration. Accordingly,
MacRae's First Amendment interest in posting the memes would
- 26 -
normally weigh in her favor on the Pickering scale because the
Supreme "Court has frequently reaffirmed that speech on public
issues occupies the highest rung of the hierarchy of First
Amendment values, and is entitled to special protection." Connick,
461 U.S. at 145 (citation and internal quotation marks omitted).
Here, though, MacRae's First Amendment interest weighs less than
it normally would because some of her memes comment upon such
hot-button political issues in a mocking, derogatory, and
disparaging manner. See Curran,
509 F.3d at 49 ("Speech done in
a vulgar, insulting, and defiant manner is entitled to less weight
in the Pickering balancing."); see also Bennett v. Metro. Gov't of
Nashville & Davidson Cnty., 977 F.3d 530, 538-39 (6th Cir. 2020)
(concluding that "speech . . . couched in terms of political
debate" "was not in the 'highest rung' of protected speech" in
part because it used an "offensive slur"). For example, the meme
about Dr. Rachel Levine was clearly insulting and disparaging when
it included the following text: "'I'm an expert on mental health
and food disorders.' . . . says the obese man who thinks he's a
woman." And you needn't take just our word for it. MacRae herself
stated that she could understand how not only the Dr. Rachel Levine
meme, but also the track meet meme, could be viewed as derogatory
towards transgender people. As such, while MacRae's interest still
weighs in her favor, it is not accorded the highest value by the
First Amendment.
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On the other side of the Pickering balancing scales, we
have Defendants' interest in preventing disruption to the learning
environment at Hanover High, which they cited as the reason for
MacRae's termination in her termination letter. We have repeatedly
recognized that a government employer has a legitimate and "strong
interest in 'preventing unnecessary disruptions and inefficiencies
in carrying out its public service mission.'" Díaz-Bigio v.
Santini, 652 F.3d 45, 53 (1st Cir. 2011) (quoting Guilloty Perez
v. Pierluisi,
339 F.3d 43, 52 (1st Cir. 2003)).
MacRae counters that, even if preventing disruption is
a legitimate government interest, any such interest Defendants
might have had should not weigh heavily in their favor because "no
actual disruption took place." On that score, she is both right
and wrong. To explain, she is right in the sense that the record
includes limited evidence of actual disruption at Hanover High.
While some teachers, like McLean and Pereira, were concerned about
MacRae's TikTok posts and some students were aware of the posts
and discussed them at school, there is no evidence in the record
that Defendants received calls or complaints from students,
parents, or community members. There is, likewise, no evidence in
the record that teachers and administrators had to devote
- 28 -
significant school time to addressing disruptions caused by
MacRae's posts.16
However, MacRae is wrong to suggest that the lack of
evidence of actual disruption means Defendants' interest in
preventing disruption cannot outweigh her First Amendment
interest. That is so because "[a]n employer need not show an
actual adverse effect in order to terminate an employee under the
Garcetti/Pickering test." Curran, 509 F.3d at 49. An employer
can rely, instead, on "a speech's potential to disrupt." Davignon,
524 F.3d at 105. And a government employer's reasonable prediction
of disruption is afforded significant weight in the Pickering
inquiry, even if the speech at issue is on a matter of public
concern. Curran,
509 F.3d at 49 (quoting Waters v. Churchill,
511
U.S. 661, 673 (1994)).
In response, MacRae offers yet another comeback and one
which we previewed above -- namely, that "[a] government employer's
mere prediction of disruption is insufficient to outweigh an
employee's interest in engaging in political speech." Setting
aside the glaring issue that she did not raise this argument below
and so it is waived on appeal, Hamdallah, 91 F.4th at 27 n.32, we
16In fairness, though, the Cape Cod Times article that first
brought attention to MacRae's social media activity was published
on Friday, September 17, 2021 and MacRae was placed on leave by
that Monday. Accordingly, there was little opportunity in that
interim for actual disruption to have occurred at Hanover High.
- 29 -
don't think her argument makes much sense given our caselaw.
Quoting the Ninth Circuit's decision in Moser v. Las Vegas
Metropolitan Police Department, MacRae argues that "the government
cannot rely on mere speculation that an employee's speech will
cause disruption" and "bare assertions of future conflict are
insufficient to carry the day at the summary judgment stage." 984
F.3d 900, 909 (9th Cir. 2021) (citations omitted). Rather, (and,
again, still quoting Moser), MacRae asserts that "[t]he government
can meet its burden by showing a reasonable prediction of
disruption."
Id. at 908-09 (citation and internal quotation marks
omitted) (cleaned up). But we see no difference between the quoted
language from Moser and our own caselaw. For example, we have
explained that "[t]he mere incantation of the phrase 'internal
harmony in the workplace' is not enough to carry the day," because
the "record" must "support . . . allegations that [the] . . .
speech . . . could disrupt . . . operations." Davignon,
524 F.3d
at 105 (citation and internal quotation marks omitted). In this
way, then, mere speculation of disruption has never been enough.
Rather, and in line with the Ninth Circuit's Moser decision, we
have explained that an employer's prediction of disruption must be
reasonable based upon the record. See Bruce,
34 F.4th at 139.
- 30 -
And here, we struggle to see how Defendants' prediction
of disruption was anything but reasonable.17 A brief recap of the
facts explains why. MacRae's TikTok posts became the subject of
substantial media coverage. Moser, 984 F.3d at 909 ("Courts have
accepted a government employer's predictions of disruption when it
provided evidence that the community it serves discovered the
speech or would inevitably discover it," such as through media
coverage.). Bourne, a town less than an hour's drive away from
Hanover, and its school system became embroiled in controversy
over the exact same speech at issue here, and the evidence of
disruption in Bourne was extraordinary. Id. ("Courts also are
more likely to accept a government employer's prediction of future
disruption if some disruption has already occurred."). For
example, consider the following uncontroverted evidence of
disruption: (1) the controversy was a topic at two of the Bourne
17 To briefly respond to MacRae's contention that the
reasonableness of a government employer's prediction of disruption
is a question for a jury, it is true that the Pickering inquiry
can involve factual disputes for a factfinder but we have explained
"the process ultimately embodies a legal determination
appropriately made by the court in circumstances in which no
genuine dispute exists as to the substance of what the employee
said and did." Hennessy v. City of Melrose, 194 F.3d 237, 246
(1st Cir. 1999). Here, no genuine dispute exists as to what MacRae
said and did, and recall that MacRae does not argue on appeal that
any genuine disputes of material fact remain. And more to the
point, this Court has repeatedly evaluated the reasonableness of
a government employer's prediction of disruption as a matter of
law. See, e.g., Ciarametaro,
87 F.4th at 89-90; Díaz-Bigio,
652
F.3d at 55; Curran,
509 F.3d at 49-50.
- 31 -
School Committee's meetings; (2) the Bourne School Committee
determined that some of MacRae's TikTok posts violated the core
values of Bourne Public Schools; (3) the Bourne School Committee
and Committee Chairperson were informed "that the social media
posts directed at the LGBTQ population had circulated and staff
and students were very upset"; (4) the Bourne Educators Association
met in response to the posts and voted unanimously "to make a
public statement against the comments made by" MacRae; and (5) at
the Bourne School Committee's September 22, 2021 meeting, over a
dozen people presented their concerns or support for MacRae.18
In addition to the goings-on at Bourne, Defendants had
separate reasons specific to Hanover to reasonably predict
disruption would ensue. To begin, MacRae had a much more
public-facing and, particularly, student-facing role at Hanover
being a teacher, than she did at Bourne, where she was just a
member of the Bourne School Committee. Next, the Cape Cod Times
article was published on Friday, September 17, 2021, and by that
18MacRae makes a passing argument that we cannot consider the
events in Bourne -- a town a stone's throw away from Hanover -- in
assessing the reasonableness of Defendants' prediction of
disruption because Mattos testified that he was not influenced by
what transpired there and Ferron testified that it did not factor
into his decision-making process. We disagree. Even assuming
that the events in Bourne did nothing to tip the scales in Mattos'
and Ferron's decision-making, the Bourne community's reaction to
MacRae's social media posts supports our conclusion that it was
objectively reasonable for Defendants to predict that the posts
were likely to cause disruption in Hanover.
- 32 -
Monday, Pereira had seen the article, determined it was about
MacRae (despite the article not mentioning her affiliation to
Hanover High), and was concerned about the effect her posts would
have on the Hanover High student body. McLean also expressed
concerns about her posts once he learned about them. Within days
of MacRae being placed on administrative leave, McLean overheard
students discussing her social media activity. MacRae's classes
included LGBTQ+ students whose identities her posts could
reasonably be seen to mock. The insulting nature of some of her
TikTok posts (at least arguably) conflicted with the District's
Belief of "[e]nsur[ing] a safe learning environment based on
respectful relationships" and Core Value of "[r]espect[ing] . . .
human differences." See Bennett, 977 F.3d at 539-40 (considering
speech's potential to "undermine[] the mission of the employer" in
Pickering balancing inquiry). And importantly, during MacRae's
interview with Mattos, Galotti, and McLean, she "agreed that there
w[ere] probably some students and staff that were aware of" her
posts. Given the circumstances both at Bourne and at Hanover,
Defendants were eminently reasonable in predicting disruption
would be forthcoming if they did not act.
Further supporting this conclusion is the fact that
nothing in the record suggests Defendants terminated MacRae's
employment because of any personal dislike or disapproval of her
posts (as opposed to for their stated concern of the posts'
- 33 -
potential to disrupt the learning environment at Hanover High).
Mattos, Ferron, and Plummer consistently testified that students
would not feel safe or comfortable learning from MacRae, given the
potential to perceive some of her posts as transphobic, homophobic,
or racist.19 See Davignon, 524 F.3d at 105 (considering whether
government employer suspended employee "out of a legitimate
concern that their speech compromised safety" or "because of their
pro-union activity" in Pickering balancing inquiry).
MacRae offers two additional retorts, neither of which
persuade. First, she argues that Defendants' decision to fire her
was made solely based on Mattos', Ferron's, and Plummer's
subjective belief that her posts would cause disruption in the
classroom. But that argument is plainly untrue. Defendants have
pointed to the aforementioned specific facts and circumstances at
Bourne and Hanover that support their prediction. Moreover, giving
Defendants the benefit of the doubt as it relates to their
prediction aligns closely with Supreme Court precedent, which
explains that our judicial higher-ups "have consistently given
greater deference to government predictions of harm used to justify
restriction of employee speech than to predictions of harm used to
MacRae appears to agree that Defendants were not motivated
19
by any personal dislike of her posts because, while she argued
that this was a genuine dispute of material fact before the
district court and the district court ruled against her on that
point, she does not challenge that ruling on appeal.
- 34 -
justify restrictions on the speech of the public at large."
Waters, 511 U.S. at 673.
Second, MacRae argues that other evidence in the record
suggests any prediction of disruption would be mere speculation.
For example, she mentions that, during Defendants' investigation,
she informed them that she never discussed political issues in the
classroom, and she used students' preferred pronouns. We fail to
see how either of these facts makes Defendants' prediction of
disruption unreasonable. Even though MacRae did not discuss
politics in class, the widespread media coverage made the content
of her TikTok posts readily accessible. Similarly, the use of
students' preferred pronouns doesn't move the needle in MacRae's
direction where even she admits some of her posts could be seen as
derogatory by LGBTQ+ students. MacRae also argues that, during
discovery, Defendants learned that she had a positive relationship
with a student in one of her nighttime classes, who is gay and
from Cape Verde, despite that student knowing of her social media
posts. MacRae, however, points to no evidence in the record that
Defendants were aware of this when they decided to terminate her
employment.
Ultimately, the record reflects that MacRae, a
newly-hired teacher, was hired to educate a diverse population of
young students. A few weeks after she started teaching, her social
media posts became the subject of extensive media attention, after
- 35 -
the educators of Bourne, a neighboring town, concluded her posts
(which appeared to denigrate the identities of some students) would
be detrimental to Bourne's school community. Coupled with the
undisputed evidence that some Hanover High students and teachers
were aware of MacRae's posts and were discussing them, there is
ample evidence to conclude that Defendants were reasonably
concerned disruption would erupt, just as it did in Bourne. And
given the significant weight afforded to a government employer's
reasonable prediction of disruption, even when, as here, the speech
at issue is on a matter of public concern, Curran, 509 F.3d at 49
(quoting Waters,
511 U.S. at 673), we conclude that Defendants
"had an adequate justification for treating [MacRae] differently
from any other member of the general public," Garcetti,
547 U.S.
at 410, and Defendants' interest outweighs MacRae's. The district
court, therefore, was correct in granting Defendants summary
judgment.
PARTING WORDS
For the reasons explained above, we affirm the district
court. Each party shall bear their own costs.
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