McBreairty v. Brewer

Brewer, Maine:  A group of students circulated a petition pertaining to bathroom policies at Brewer High School.  The school shut down the petition, threatening the students with discipline if they continued circulating it.  The students also report that they were threatened that the petition was a “hate crime.”  (The school denies this).  Shawn McBreairty is a journalist who wrote about the story, and included a photograph that was widely circulating on social media.

The school district sent a threat to McBreairty.  The DrummondWoodsum law firm, on the district’s behalf, sent a threat telling McBreairty that if he did not remove certain material from the article, including the photograph, they would take “further action” against him.   In that threat, they cited his article as violating criminal law, civil liability, and administrative policies.   Of course, trying to avoid government repercussions, McBreairty took down the article.  He posted the threat letter though, and the government threatened him yet again, to take that down.

Given how obviously unconstitutional the government’s actions were, McBreairty sought an injunction from the District of Maine. (Motion).   The government opposed, (Opposition),  and McBreairty replied.  (Reply).   The Court then requested supplemental briefing on whether the photo enjoyed First Amendment protection.  This is discussed at this post.  The government takes the position that the photo has no First Amendment protection, which is (to put it plainly) some of the most incredibly shocking bullshit that this firm has ever seen a government argue.   You do need to read this briefing in order to believe that this really happened.  (McBreairty Brief) (Government Arguing the First Amendment does not apply).

The District Court spent two weeks thinking about the issue, and then issued an order that it felt that it needed more facts before it could make a decision.  (Order).   Given that this is a “hot news” situation, where a debate is raging, the failure of the Court to make a decision is essentially a ruling from the court that the censorship should continue until the story doesn’t matter anymore.

Given that urgency, we asked the court for an injunction pending appeal. (Motion).  Naturally, the Government opposed. (Opposition) and we replied.  (Reply).

The Court was not kind to our request.  The Order is here.

We then sought review, on an emergency basis, from the First Circuit Court of Appeals.  Here is our Motion for Injunction Pending Appeal, The Government’s Opposition, and our Reply.

Will the First Circuit rule in our favor?  We can not predict that right now.  It is unusual for an appellate court to issue an injunction pending appeal.  However, this is such an outrageous and obvious issue, suppressing journalism, that we hope that the First Circuit is not able to do contortions in order to protect this blatantly unconstitutional act of authoritarianism.

We will update this post with whatever the First Circuit has to say about this.  But, if you’re reading this, you should understand that YOUR First Amendment rights are meaningless if the government can suppress journalism like this, and the courts are complicit.

There is a similar case, up on appeal to the First Circuit Court of Appeals, Berge v. Gloucester School Committee.  That case is not yet decided, but the issues are very similar.  In that case, at oral argument, the justices were very skeptical of the same kinds of arguments that Brewer is making here.