MacRae v. Mattos

106 F.4th 122

• Court: Court of Appeals for the First Circuit
• Decided: June 28, 2024
• Docket: 23-1817
• Status: Published

Opinion

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).

- 2 - 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

- 3 - 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.

- 4 - 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].

- 5 - 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).

- 6 - 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

- 7 - 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-committee- member-tiktok-controversial-lgbtq-critical-race-theory- statements/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/bourne- teachers-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

- 9 - 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-macrae- wont-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-cod- kari-macrae-recall-effort-de-railed-bourne-petition-signature- issue/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).

- 11 - 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

- 12 - 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.

- 13 - 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.

- 14 - 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.

- 15 - 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

- 16 - 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

- 18 - 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.

- 19 - 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

- 20 - 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.

- 22 - 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

- 23 - 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

- 24 - 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

- 25 - 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.

- 27 - 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

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.

- 36 -