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.
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February 21, 2024
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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 
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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
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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 
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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 
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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, 2023 WL 3096787, at *12 (D. Me. Apr. 26, 2023). McBreairty 

timely appealed that decision. See 28 U.S.C. § 1292(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 
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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 
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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, 

523 U.S. 83, 95 (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, 438 F.3d 92, 97 (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., 549 U.S. 422, 431 (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, 504 

U.S. 555, 560 (1992). For there to be standing, the plaintiff 
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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 id. at 560-61. 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, 438 F.3d at 99; see also Babbitt v. United Farm 

Workers Nat'l Union, 442 U.S. 289, 297-98 (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, 99 F.3d 8, 13 (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.
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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 438 F.3d at 

98-99. 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 
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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, 30 F.3d 1332, 1336 (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, 808 F.3d 905, 912 (D.C. Cir. 2015) 

(requiring this higher showing to establish standing to seek a 

preliminary injunction); see also Lujan, 504 U.S. at 561 ("[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.").
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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 
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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, 556 U.S. 662, 679 (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, 442 U.S. at 297. 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. 438 F.3d at 99.

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

future speech has been chilled, see Gardner, 99 F.3d at 13, which,

in any event, is not a theory of standing he presses to us or 

pressed before the District Court.
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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, 425 F. Supp. 

3d 64 (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, 425 F. Supp. 3d 64 (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), 512 F. Supp. 3d 273 

(D.N.H. 2021), aff'd sub nom. Frese v. Formella (Frese III), 53 

F.4th 1 (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, 53 F.4th at 

5 n.2. 

McBreairty's complaint, however, does not itself contain 
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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, 765 F.3d 601 (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," id. at 608, while the out-of-circuit district 

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

Fort Lauderdale, 546 F. Supp. 3d 1227, 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, 2023 WL 4042580, 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 
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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, 2023 WL 3096787, 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, 239 F.3d 23, 27 (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, 
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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.