Tara McNeally brought a First Amendment retaliation claim after alleging that the bank she worked for and the school district conspired to stifle her free speech.
Shockingly (or not) – her termination came after she posted on social media criticizing school mask policies and the leadership voting for the mandate.
The lower court granted summary judgment and Ms. McNeally’s case was dismissed without a trial. She appealed and the Eighth Circuit Court of Appeals (that includes several states such as Nebraska, North Dakota and South Dakota) issued an interesting decision on Oct. 20.
The Court affirmed in part, but reversed a portion of the ruling and remanded it back for trial.
The facts were unique in the sense that the bank at issue operated a branch at the Shakopee High School.
Ms. McNeally’s kids also attended school there. She sometimes worked at the school branch. She received good to excellent performance ratings.
But then, Ms. McNeally had a conversation with the board chair about the mask policy at a parent-teacher event. The chair described it as contrary to “civil discourse.” Later, at a PTO meeting where McNeally was in attendance both as a parent and as an employee of the bank, a parent confronted her for not wearing a mask.
McNeally reported this incident to her bank vice president. The next day, she resigned from the PTO, and the school’s principal reported the incident to the superintendent.
At a school board meeting a few days later, McNeally did not speak but held a sign that said, “MASKS = NO LEVY.” After a later school board meeting, McNeally posted a public comment on her state legislator’s Facebook page. The post essentially expressed disappointment in a board member turning around to watch a clock during public comment.
The next day, the bank VP and the superintendent met for lunch. The superintendent allegedly discussed the post and told the bank VP to have her take it down. The bank VP then left the lunch and immediately texted McNeally asking her to take down the Facebook post because the school “District offices” were “upset.”
When a reporter contacted McNeally she provided comment about her interpretation of what had occurred. Then, that afternoon, the superintendent told the bank VP that McNeally would not be allowed to work at the school’s bank branch anymore. The bank VP requested he “follow up with something in writing.”
The superintendent sent out an email, essentially unilaterally no-trespassing her from the school property.
The Eighth Circuit held, “As an ordinary citizen, there is no dispute that McNeally engaged in protected speech.”
McNeally argued to the court that the property ban was an adverse action that would chill a person of ordinary firmness from continuing her political speech. The Court described that government action that engages in the “punitive machinery of government” to impose “concrete consequences” in retaliation for speaking out, chills speech.
A ban from public property does just that.
The Eighth Circuit took a stand for free speech, and decided that this plaintiff should get her day in court.
“While the jury may believe [the Superintendent’s] claim that he was not motivated by McNeally’s speech, we cannot say this ‘question is so free from doubt as to justify taking it from the jury.’”
This is an approach that is increasing in momentum. As more and more states consider “Anti-SLAPP” laws that prevent individuals from being sued for the free speech they exercise, courts are analyzing what the First Amendment is designed to protect. Anti-SLAPP laws prevent a scenario where the big guys silence the little guys through weaponized litigation designed to silence and bankrupt adverse parties and ideas.
The Eighth Circuit referred to precedent from the Fourth Circuit stating, “We have also held that a government official may not ban someone from government property in retaliation for speech.” The Court brought that precedent in stating, “And when [the Superintendent] allegedly conspired with the Bank, it was clearly established that a government official could not engage in ‘conduct in furtherance of a conspiracy to retaliate against Plaintiffs for exercising their First Amendment rights.’”
This opinion shows the growing trend of the nation to protect our ability to speak freely on the matters of importance to us. The opinion also creates inquiry about former administrators and private players working with establishment folks to make plans and have discussions outside of the public eye. Albeit, while informal in nature, it could be conspiracy, at least by the allegations allowed to move forward in the Eighth Circuit.
Will Wyoming do more to protect free speech so individuals are safe to express differing ideas and opinions? Last year saw a litany of bills around this concept, but given the budget year who knows what is coming down the pike.
In a world in a war over words, any time is the right time to talk about it.
Cowboy State Daily columnist Cassie Craven is a University of Wyoming College of Law graduate who practices law in Wyoming. She can be reached at: longhornwritingllc@gmail.com
