“Disruption” Cannot Trump Viewpoint Neutrality: A Commentary on Justice Thomas’s Statement in MacRae v. Mattos (606 U.S. ___ (2025))

1. Introduction

In MacRae v. Mattos, the Supreme Court declined to review a First Circuit decision that had upheld the dismissal of a public-school employee for politically charged social-media posts made prior to her employment. Although the petition for certiorari was denied, Justice Clarence Thomas authored a six-page statement criticizing the lower court’s application of the Pickering–Garcetti balancing test. His writing, while not binding precedent, supplies a forceful clarification of two key First Amendment principles:

1. The tone or perceived offensiveness of public-employee speech does not diminish its constitutional value when it addresses matters of public concern.
2. Government employers may not invoke a speculative fear of “disruption,” especially when anchored in disagreement with the employee’s viewpoint, to justify adverse employment action.

Because the merits issue—the correct weighting of speech value versus employer interests—continues to percolate in the circuits, Justice Thomas’s observations are likely to influence future litigation and signal the Court’s readiness to revisit Pickering balancing in an appropriate vehicle.

2. Background of the Case

Kari MacRae was hired by Hanover Public Schools (Massachusetts) as a special-education paraprofessional in 2021. Before her first day on the job, administrators discovered that her TikTok account contained six memes expressing views that:

• Immigration laws should be enforced;
• Biological sex is immutable; and
• Society ought to adopt a color-blind approach to race.

School officials feared the posts would undermine the district’s stated “core value” of respecting human differences and create turmoil among students and staff, some of whom had already commented on the posts. MacRae was terminated. She sued, alleging retaliation for protected speech under 42 U.S.C. §1983. The district court granted summary judgment to the defendants, and the First Circuit affirmed. The appellate court acknowledged that MacRae spoke as a citizen on matters of public concern but concluded that the employer’s prediction of disruption outweighed her speech interest.

3. Summary of Justice Thomas’s Statement

Justice Thomas agreed that certiorari should be denied because the petition had not squarely challenged the underlying framework, focusing instead on whether Pickering balancing applies to pre-employment speech. Nevertheless, he penned a separate statement to flag what he perceived as “deeply flawed” reasoning by the First Circuit:

• The court MacRae’s speech value based on tone (“mocking, derogatory, disparaging”), contravening Supreme Court precedent that unpopular or caustic speech can still be highly protected (e.g., Snyder v. Phelps).
• The court gave excessive weight to speculative or viewpoint-based predictions of disruption, such as generalized discomfort with views labeled “transphobic” or “racist.”
• By treating conflict with the district’s declared values as evidence of disruption, the First Circuit effectively allowed the employer’s own institutional viewpoint to suppress dissent, violating the principle of viewpoint neutrality.

Thomas characterized the decision as the latest in a “trend of lower-court decisions” that use the guise of preventing disruption to silence disfavored speech, especially in educational settings, and indicated willingness to grant certiorari in a future case that squarely presents the proper application—or possible overhaul—of Pickering-Garcetti.

4. Analysis

4.1 Precedents Cited

1. Pickering v. Bd. of Educ., 391 U.S. 563 (1968) – established the balancing test for public-employee speech.
2. Garcetti v. Ceballos, 547 U.S. 410 (2006) – clarified that when employees speak pursuant to their official duties, the speech is unprotected; otherwise Pickering balancing applies.
3. Snyder v. Phelps, 562 U.S. 443 (2011) – emphasized that even hurtful speech on public issues receives full First Amendment protection.
4. Rankin v. McPherson, 483 U.S. 378 (1987) – held that controversial comments by a county employee about an attempted presidential assassination were protected.
5. United States v. National Treasury Employees Union (NTEU), 513 U.S. 454 (1995) – required “reasonable” predictions of disruption when restricting employee speech.
6. Recent circuit cases (Dodge, Noble, Porter, etc.) illustrating divergent approaches to “disruption.”

Justice Thomas relied heavily on Snyder and Rankin to demonstrate that caustic expression does not reduce First Amendment value, and on NTEU to clarify that speculative disruption is inadequate. By invoking L.M. v. Middleborough (2025) and Mahmoud v. Taylor (2025), he highlighted the Court’s growing concern that lower courts misapply balancing tests when faced with hot-button political speech.

4.2 Legal Reasoning

Justice Thomas’s critique unfolds in two prongs:

1. Intrinsic value of the speech. The First Circuit erred in giving “less than full weight” to speech because its tone was “mocking.” Supreme Court doctrine (Rankin, Snyder) treats content and tone as irrelevant to the threshold determination of public concern.

2. Employer’s interest. Predictions of disruption must be reasonable and viewpoint-neutral. Invoking conflict with institutional “core values” is tantamount to viewpoint discrimination—precisely what Pickering prohibits.

He concluded that, had the First Circuit properly valued MacRae’s speech and discounted speculative or viewpoint-based disruption, the balance likely would have tipped the other way. Importantly, he refused to revisit whether historical practice supports Pickering; instead he reminded lower courts that “unless and until” the Supreme Court overrules Pickering, they must apply it faithfully—meaning they must protect even disagreeable speech.

4.3 Potential Impact

• Signal to Circuits: Statements respecting denial often telegraph the views of at least one Justice. Lawyers and judges will treat MacRae as a cautionary tale: ignoring the content- and viewpoint-neutrality commands in Pickering invites further review.
• Future Petitions: Litigants challenging employee discipline for social-media expression will highlight Thomas’s statement to argue that lower courts have split on how to weigh offensive speech and predicted disruption.
• School District Policies: Educational employers may need to re-draft social-media and “respectful workplace” policies to ensure they do not penalize employees merely for expressing unpopular political viewpoints.
• Academic Debate: The opinion invigorates scholarly discussion over whether Pickering is faithful to original meaning or whether a categorical rule (either greater liberty for speech or greater deference to employers) should replace the balancing test.

5. Complex Concepts Simplified

6. Conclusion

Although MacRae v. Mattos did not yield a formal Supreme Court opinion, Justice Thomas’s statement sharpens the contours of First Amendment analysis in public-employment settings. Two doctrinal reminders stand out:

1. Public-employee speech on core political issues retains its full constitutional value, regardless of tone or social acceptability.
2. Employer predictions of disruption must be evidence-based and viewpoint-neutral; reliance on institutional mission statements to suppress dissent is constitutionally suspect.

Taken together, these points fortify the protection of pre-employment (and, by implication, off-duty) political expression. Lower courts that discount speech because it is controversial—or that magnify speculative fears of disruption—risk summary reversal when an “appropriate case” reaches the Supreme Court. For practitioners, school districts, and public-sector employers, the message is clear: the First Amendment tolerates robust, even abrasive, debate, and governmental convenience cannot override that fundamental commitment.