Teacher Fired for TikTok Posts Pre-Hire Loses Free Speech Appeal

A Massachusetts school district defeated a First Amendment appeal by a high school teacher it fired over TikTok posts on gender identity, critical race theory, and illegal immigration that were deemed to violate the district’s “core values.”

The “six allegedly controversial memes” the teacher posted to her personal TikTok account weren’t discovered until after she was hired, but the usual test for determining when a public worker’s speech is shielded by the US Constitution still applied, the US Court of Appeals for the First Circuit said. It rejected the teacher’s argument that the First Amendment test “for claims by private individuals against government entities who retaliate against them” governed instead.

Taking that approach would fail to account for Hanover Public Schools’ interests in promoting efficient public services and avoiding the workplace disruption that was reasonably predicted in the wake of Kari Macrae’s speech, Judge O. Rogeriee Thompson said. There’s no reason why those governmental interests “would simply evaporate into thin air just because the speech in question occurred prior to the start of employment” and was only discovered by the employer afterwards, the judge said.

The First Circuit was unpersuaded by Macrae’s warning that adhering to the usual standard in situations like hers will enable public employers to fire someone 30 years later for speech they engage in as a teenager. That wasn’t what happened to Macrae, the court said.

Macrae also “essentially reaffirmed” the views expressed in her posts shortly after beginning at Hanover High School, when she spoke at a school committee meeting in the nearby town where she lived and was a committee member, Thompson said.

Her speech was entitled to less weight when balanced against the school district’s interests than it would have been otherwise, the First Circuit said, because some of Macrae’s posts were mocking in nature.

Macrae’s posts “touched upon hot-button political issues, such as gender identity, racism, and immigration,” Thompson said. But one post “about Dr. Rachel Levine was clearly insulting and disparaging” and Macrae admitted that another post, which included a photo of a muscular bearded man in a sports bra at a girls’ track meet, “could be viewed as derogatory by transgender people,” the judge said.

Proof of actual disruption to the school district, such as calls or complaints from the school community, wasn’t necessary, Thompson said.

The town where Macrae served on the school committee was “less than an hour’s drive away,” and it “became embroiled in controversy over the exact same speech,” the judge said.

The evidence of the disruption that school system experienced was enough to show Hanover’s interests outweighed Macrae’s free-speech rights, Thompson said. That was especially true because Macrae had a more public- and student-facing role in Hanover as a teacher than she did as a committee member in the neighboring town, the judge said.

Judges by Gustavo A. Gelpí Jr. and Bruce M. Selya joined the opinion.

Judicial Watch Inc. represented Macrae. Brody, Hardoon, Perkins & Kesten LLP represented the school district.

The case is Macrae v. Mattos, 2024 BL 221644, 1st Cir., No. 23-01817, 6/28/24.