and 22-2702 GEORGE FALCONE v. NEIL DICKSTEIN, Personally

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 22-2701 and 22-2702
GEORGE FALCONE,
Appellant in No. 22-2701
v.
NEIL DICKSTEIN, Personally and in his capacity as the
Superintendent of Freehold Public Schools; MICHELLE
LAMBERT, Personally and in her capacity as the
President of the Freehold Board of Education; MICHAEL S.
AMOROSO, Personally and in his capacity as the Vice
President of the freehold board of education;
JENNIFER PATTEN, Personally and in her capacity as a
member of the freehold board of education; DEBRA
COSTANZA, Personally and in her capacity as a member of
the freehold board of education; ELENA O’SULLIVAN,
Personally and in her capacity as a member of the freehold
board of education; MARY COZZOLINO, Personally and in
her capacity as a member of the freehold board of education;
MEG THOMANN, Personally and in her capacity as a
member of the freehold board of education; NEIL
GARGIULO, Personally and in his capacity as a
member of the freehold board of education; KERRY
VENDITTOLI, Personally and as a member of the freehold
board of education; FREEHOLD BOARD OF EDUCATION;

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FREEHOLD TOWNSHIP POLICE DEPARTMENT;
MYROSLAV ALFELDI, Personally and in his capacity as a
freehold township police officer; JOHN DOES 1-25, Said
names being fictitious
GWYNETH K. MURRAY-NOLAN,
Appellant in No. 22-2702
v.
SCOTT RUBIN; KURT PETSCHOW; LISA CARBONE;
TERRY DARLING; BRETT DRYER; WILLIAM HULSE;
NICOLE SHERRIN KESSLER; MARIA LOIKITH;
PATRICK LYNCH; KRISTEN MALLON; CRANFORD
BOARD OF EDUCATION; JENNIFER OSBOURNE;
SCIARRILLO CORNELL MERLINO MCKEEVER AND
OSBOURNE LLC; JOHN DOES 1-25; ABC
DEFENDANTS 1-25; ANTHONY SCIARRILLO;
CRANFORD POLICE DEPARTMENT; NADIA JONES;
ROBERT CHAMRA; DENNIS MCCAFFERY; LESLI
RICE; ANTHONY GIANNICO
________________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action Nos. 3-22-cv-00921 and 2-22-cv-00801)
District Judges: Hon. Peter G. Sheridan and Hon. Evelyn
Padin
________________
Argued on September 27, 2023

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Before: KRAUSE, ROTH and AMBRO, Circuit Judges
(Opinion filed: February 5, 2024)
Ronald A. Berutti (Argued)
Murray-Nolan Berutti
136 Central Avenue
2nd Floor
Clark, NJ 07066
Counsel for Appellants
Ruby Kumar-Thompson (Argued)
Cleary Giacobbe Alfieri & Jacobs
169 Ramapo Valley Road
Upper Level 105
Oakland, NJ 07436
Eric L. Harrison (Argued)
Methfessel & Werbel
2025 Lincoln Highway
Suite 200
Edison, NJ 08818
Eileen M. Ficaro (Argued)
Gregory S. Hyman
Brandon L. Wolff
Kaufman Dolowich & Voluck
1650 Market Street
One Liberty Place, Suite 4800
Philadelphia, PA 19103

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John F. Gillick (Argued)
Rainone Coughlin Minchello
555 U.S. Highway 1 South
Suite 440
Iselin, NJ 08830
Counsel for Appellees
OPINION OF THE COURT
AMBRO, Circuit Judge
In the wake of the COVID-19 pandemic, federal, state,
and local governments scrambled to implement policies to
control the spread of the disease. These measures—which
included mandates to wear face masks in public indoor spaces
such as schools, businesses, and restaurants—spawned
skepticism and debate. Some objectors voiced their discontent
online, some turned to their elected representatives, and some
asked the courts to intervene. Others took less trodden paths.
The plaintiffs in the consolidated cases before us, two
New Jersey parents, chose to express their opposition through
multiple means. One was to attend school board meetings
while refusing to wear a mask in what they believed was a
symbolic protest against masking requirements in schools.
Their conduct led not to debate or policy changes but to a
summons and an arrest.
The plaintiffs sued. The summons or arrest, they
claimed, were retaliation for exercising their First Amendment

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rights. The District Court in both cases dismissed the
complaints, though on different grounds.
For the reasons that follow, we reverse and remand the
Court’s order against George Falcone and affirm the Court’s
order against Gwyneth Murray-Nolan. A question shadowing
suits such as these is whether there is a First Amendment right
to refuse to wear a protective mask as required by valid health
and safety orders put in place during a recognized public health
emergency. Like all courts to address this issue, we conclude
there is not.
I. Background
On March 9, 2020, New Jersey Governor Phil Murphy
declared a state of emergency in response to the quickly
spreading coronavirus known as COVID-19. N.J. Exec. Order
No. 103; Falcone App. 61-68. As we now know, it primarily
spreads through airborne particles that accumulate in enclosed
spaces, respiratory droplets produced when a person coughs,
sneezes, or talks, and occasionally through contact with objects
contaminated with the virus. How COVID-19 Spreads, CDC
(Aug. 11, 2022), https://perma.cc/EPP9-AUWT. Individuals
infected with COVID-19 can spread the disease while
asymptomatic or pre-symptomatic, making the virus difficult
to control. Over the course of the ensuing months, Governor
Murphy issued a series of Executive Orders to monitor and
curb its spread. One of them mandated that New Jersey schools
“maintain a policy regarding mandatory use of face masks by
staff, students, and visitors in the indoor portion of the school
district premises,” except, for example, when an individual
qualifies for and obtains a medical exemption. N.J. Exec.
Order No. 251 (Aug. 6, 2021). The mandate was aimed at
resuming in-person teaching and other activities while

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reducing transmission of the virus and protecting unvaccinated
individuals. Falcone App. 83. In preparation for the 2021-
2022 school year, New Jersey School Districts—including the
Freehold Township and Cranford Township School Districts—
implemented mandatory indoor masking policies consistent
with the Executive Order.
COVID-19 has since become endemic (that is, regularly
recurring in particular areas or communities), and the statewide
school mask mandate has been terminated. See N.J. Exec.
Order No. 292 (Mar. 2, 2022). But litigation related to masking
policies has not. In the cases before us, the plaintiffs separately
brought suit against various groups of defendants claiming
they were unlawfully retaliated against for protesting policies
adopted by their local Boards of Education related to
mandatory masking in schools. The cases stem from similar
sets of facts and involve related issues of law, so we have
consolidated them for review.
On appeal from the dismissal of a complaint, we take
the factual allegations as true.
A. George Falcone
Falcone brought suit under 42 U.S.C § 1983 and the
New Jersey Civil Rights Act (“NJCRA”), N.J. Stat. Ann.
§ 10:6-2(c), against the Superintendent of Freehold Public
Schools, various members of the Freehold Township Board of
Education (“BOE” or “Board”), as well as the Freehold
Township Police Department and one of its officers, Myroslav

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Alfeldi (“Police Defendants”).1 Falcone opposed the
mandatory masking policy adopted by the Freehold BOE and
voiced that opposition at Board meetings and via social media.
Falcone App. 16. He “sought to drum up popular support for
serving notice on the Board” that it was “liable for harming
children with the mask mandate.” Id. Some or all of the
defendants allegedly knew of Falcone’s vocal opposition and
activities.
On February 8, 2022, the Freehold BOE held an indoor
public meeting on School District premises. Joined by around
fifteen other maskless individuals, Falcone entered the
building without a mask “with the well[-]known intent to
engage in protected political speech and activity regarding
unmasking.” Id. They were advised to wear a mask or else the
meeting would not begin. In an “overt and obvious political
protest against the Board’s masking policies,” Falcone
responded that he would not put on a mask. Id. at 17. Some
members of the BOE then called the Freehold Township Police
Department for backup. When Officer Alfeldi arrived and
insisted that Falcone wear a mask, he responded “that he was
engaged in constitutionally protected activities, including his
remaining unmasked, and that he would not put on a mask
unless defendant Alfeldi advised that he would be arrested for
not doing so.” Id. Officer Alfeldi assured Falcone that he
would not be arrested, so he remained maskless. Moments
before the Board convened, Falcone “served what he believed
were legal papers on each Board member.” Id. He then spoke
at the podium for public citizen speakers—still maskless—and
was approached by a second police officer who again directed
1 All Defendants in Falcone’s lawsuit collectively are referred
to as the “Freehold Defendants.”

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him to wear a mask. Falcone responded by pointing out that
the officer himself was unmasked.
Following the meeting, Officer Alfeldi allegedly issued
a summons and complaint charging Falcone with defiant
trespass in violation of N.J. Stat. Ann. § 2C:18-3b(1), a
misdemeanor. He was the only person among all maskless
attendees to receive a summons, which he alleges was
“clearly” in retaliation for his “protected political and symbolic
speech, and organization thereof.” Falcone App. 18. Two
weeks later, the Board held another meeting. But when
Falcone and several others attended it (again maskless) to
“protest . . . defendants’ actions and policies,” the Board and
Superintendent canceled the meeting. Id. at 19.
Falcone’s lawsuit followed.2 He alleged the Freehold
Defendants unlawfully retaliated against him for exercising his
First Amendment rights and deprived him of substantive due
process.3 They did so by (1) issuing, or conspiring to cause
issuance of, a summons for trespass “in retaliation for hi[s]
organizing and leading a constitutionally protected political
and symbolic protest against the Board’s masking policies,”
Falcone App. 19; Dist. Ct. Dkt. 13 at 20, and (2) canceling the
second BOE meeting “with the purpose of depriving the
plaintiff of his rights to speak,” Falcone App. 20; Dist. Ct. Dkt.
2 He filed his initial complaint on February 22, 2022, after he
received the summons. He amended it on March 17, 2022, to
add allegations pertaining to the BOE’s cancellation of the
second meeting.
3 Falcone initially also sued under 42 U.S.C. § 1985 for
conspiracy to violate his civil rights. He affirmatively
abandoned that claim on appeal. See Appellant Br. 15 n.1.

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13 at 20. He requested compensatory and punitive damages as
well as injunctive relief. Falcone App. 20-21.
The Freehold Defendants moved to dismiss. They
argued, among other things, that Falcone lacked standing to sue
and that he failed to state a First Amendment retaliation claim
because his refusal to wear a mask was not constitutionally
protected conduct. See Dist. Ct. Dkt. 6 at 10-14, 18-19.
The District Court dismissed the amended complaint on
the ground that Falcone had no standing to sue. It found his
alleged injuries—the receipt of a summons and the Board’s
meeting cancellation—were not “traceable” to the BOE or
Police Defendants but instead to Governor Murphy’s
Executive Order that the Board had to obey. Falcone App. 7-
9. It followed, in the District Court’s view, that Falcone’s
alleged injuries also were not “redressable” by injunctive relief
because “an injunction directed at Defendants would not enjoin
the Governor from implementing or enforcing a mask
mandate.” Id. at 9. Having found that Falcone lacked standing,
the Court did not address the Freehold Defendants’ remaining
arguments. He appeals to us.
B. Gwyneth Murray-Nolan
Murray-Nolan is an “advocate for parental choice in
masking children at school.” Murray-Nolan App. 79. Her
opposition to the Cranford Township BOE’s masking
requirement was also well known: she had testified before the
State Assembly and Senate, posted on social media about “the
harm to her own children, and to children generally, from
masking in school,” and voiced her concerns at Board meetings
on at least six occasions. Id. at 84-85. In September 2021,

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Murray-Nolan filed a Harassment, Intimidation and Bullying
Complaint against the Superintendent of Cranford Public
Schools, a Cranford school principal, and a school nurse
claiming that Murray-Nolan’s children were “the subject of an
alleged retaliatory incident . . . related to the masks that they
were wearing.” Id. at 85.
Fast forward to January 24, 2022, when the Board held
a public meeting on School premises. Murray-Nolan entered
the building maskless “in a sign of silent protest against the
Cranford School [Board’s] masking policy, related Executive
Orders, as well as the [Board’s] lack of action related to
unmasking children in schools,” particularly “those with
special needs.” Id. at 79. By not wearing a mask, she was
“showing solidarity with all such children” and “protesting the
BOE’s violation of their civil rights.” Id. at 81. She sat in the
front row, maskless, listening to virtual student presentations
for about twenty minutes, when the BOE’s legal counsel—
Defendant Jennifer Osbourne—stated “that everyone in the
room must be masked.” Id. at 79-80. Murray-Nolan refused
to take a mask that was offered to her, so Osbourne, after
consulting with Superintendent Rubin, announced she would
“contact law enforcement on anyone in attendance at the
meeting who remained unmasked.” Id. at 80. Murray-Nolan
did not relent, so the Board, Osbourne, and Superintendent
Rubin convened for a private meeting. During the ten-minute
break, “almost all” attendees allegedly “removed their masks
in solidarity with” Murray-Nolan. Id. The Board then
canceled the meeting; hence the public comment portion never
took place.
The next day, the Board posted a statement on the
Cranford Public Schools’ Facebook page explaining why the

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meeting ended abruptly: “a member of the public” refused to
wear a mask in violation of the BOE’s masking policy. Id. at
81, 105-06. It noted that individuals who disagreed with this
policy could attend Board meetings virtually and explained
“the individual” was so informed and offered a mask but
refused both times. Id. at 105. “Rather than contacting the
police, the Board chose to end the meeting so it could be in
compliance with the [Governor’s] executive order.” Id. The
statement concluded by emphasizing that attendees would be
expected to comply with the masking policy going forward. Id.
A few days later, Murray-Nolan spoke to the Chief of
the Cranford Police to voice her concerns about the BOE’s
“threat to call the police,” and the Chief allegedly insinuated
that “no parent would be arrested for refusing to wear a mask
at a BOE meeting.” Id. at 83.
In anticipation of the Board’s February 14, 2022,
meeting, the Superintendent circulated an email explaining that
any individuals wishing to attend the meeting in person would
have to comply with the masking policy unless they qualified
for a medical exemption. Id. at 83, 108-09. The email also
referred to the Board’s policy permitting it to “request[]
assistance from law enforcement officers in the removal of a
disorderly person when that person prevents or disrupts a
meeting,” and it asked that “residents [who] object to executive
orders . . . focus [their] efforts on those individuals who either
created the orders or who have the power to [e]ffect change[.]”
Id. at 108-09. Believing that the email targeted her, Murray-
Nolan posted in a Facebook group a “statement in response”
explaining the origin and nature of her opposition to the BOE’s
masking requirement and asserting that “filing a lawsuit

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against the state and the Governor was the only recourse for
[her] kids.” Id. at 113.
Rather than suing them, Murray-Nolan filed her initial
complaint and an order to show cause against Superintendent
Scott Rubin, various members of the Cranford BOE, and
attorney Osbourne. She did so just before the February 14
meeting and served copies on them via email an hour before it
began. When Murray-Nolan arrived at the School—again
maskless—she was advised by an employee of the Board that
“he was ‘told’ to call the police on [her] if she entered the
building unmasked.” Murray-Nolan App. 87. She countered
that “not wearing a mask was politically protected free speech”
and proceeded to enter. Id. at 88. She handed a courtesy copy
of her complaint to the Board’s secretary and sat down, still
maskless. In the hallway, one of the Board’s legal counsel,
Defendant Anthony Sciarrillo, met with members of the
Cranford Police to “alert them that he sought to have [Murray-
Nolan] arrested if she did not place a mask on her face, to
which the [Police Department] and the officers agreed.” Id. at
89. Sciarrillo entered the meeting room, sat next to Murray-
Nolan, and instructed her to put on a mask. Id. She responded
by serving him a copy of the complaint. When Sciarrillo
repeated his request, Murray-Nolan restated that “not wearing
a mask was politically protected speech under the First
Amendment.” Id. at 89-90. Sciarrillo then signaled to the back
of the room and toward the entrance of the conference room,
where three police officers were watching. Shortly thereafter,
they arrested her for defiant trespass under N.J. Stat. Ann.
§ 2C:18-3b, the same violation that led to Falcone’s summons.
Murray-Nolan amended her initial complaint, thereby
suing three groups of defendants under 42 U.S.C. § 1983 and

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the NJCRA4: Superintendent Rubin and various members of
the Cranford BOE (together, the “BOE Defendants”), the
Board’s two legal counsel (“Attorney Defendants”), and the
Cranford Police Department and several police officers
(“Police Defendants”).5 As relevant here, Murray-Nolan
alleged the Cranford Defendants retaliated against her for
exercising her First Amendment rights when they canceled the
first Board meeting, published “threats” via email and social
media, and arrested her following her maskless attendance at
the second meeting. Murray-Nolan App. 94-95; Dist. Ct. Dkt.
13 at 15-16.6 She sought compensatory and punitive damages
as well as injunctive relief.
The Cranford Defendants moved to dismiss, arguing,
among other things, that Murray-Nolan lacked standing to sue
4 Murray-Nolan also alleged that the Cranford Defendants
conspired to deprive her of her civil rights in violation of 42
U.S.C. § 1985 and failed to prevent such a conspiracy in
violation of § 1986. Murray-Nolan App. 98, 100. The District
Court dismissed both counts. Her claims under § 1983 and the
NJCRA are the only ones at issue in this appeal. See Reply Br.
10.
5 All defendants in Murray-Nolan’s lawsuit collectively are
referred to as the “Cranford Defendants.”
6 Murray-Nolan’s complaint did not specifically identify a First
Amendment retaliation claim. It alleged only that the Cranford
Defendants “intentionally, recklessly, and/or negligently
interfered with and have deprived and/or damaged the Plaintiff
by violating her rights, privileges, and/or immunities.” See
Murray-Nolan App. 94-95. Murray-Nolan specified that she
was pressing a First Amendment retaliation claim in her
opposition to the Cranford Defendants’ separate motions to
dismiss. See Dist. Ct. Dkt. 13 at 15; Dkt. 30 at 20.

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and that her First Amendment retaliation claim failed because
she did not allege any “constitutionally protected conduct.”
Dist. Ct. Dkt. 12 at 10-20; Dkt. 21 at 10-17, 21-26; Dkt. 27 at
9-15. The Attorney Defendants also contended they were not
“state actors” for purposes of § 1983. Dkt. 21 at 17-20. And
the Police Defendants asserted the retaliatory arrest claim
failed because they had probable cause to arrest her and, in any
event, they were entitled to qualified immunity. Dkt. 27 at 19-
22.
The District Court rejected the Cranford Defendants’
standing arguments but agreed Murray-Nolan failed to state a
claim for First Amendment retaliation. Murray-Nolan App.
16-19, 22-26 (citing Rumsfeld v. F. for Acad. & Inst. Rts., Inc.
(“FAIR”), 547 U.S. 47, 66 (2006), and Texas v. Johnson, 491
U.S. 397, 404 (1989)). Her alleged “right to appear at [the
Board meetings] without a mask” was not “inherently
expressive” conduct, it reasoned, but rather was expressive
only “because she told Defendants that it was, and sued to
prove it.” Id. at 16-19, 22-26. The Court also found the
Attorney Defendants were not “state actors,” id. at 26-27, and
Murray-Nolan’s retaliatory arrest claim failed against the
Police Defendants for the additional reason that they had
probable cause to arrest her for willfully refusing to wear a
mask, id. at 27-29. She also appeals.
II. Jurisdiction and Standard of Review
The District Court in both cases had jurisdiction under 28
U.S.C. §§ 1331 and 1367, and we have jurisdiction under 28
U.S.C. § 1291. When reviewing a dismissal for lack of
standing or failure to state a claim, we give it a fresh look. See
Free Speech Coal., Inc. v. Att’y Gen., 677 F.3d 519, 530 (3d
Cir. 2012); Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210,

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218 (3d Cir. 2015). We accept the plaintiffs’ well pled factual
allegations as true and draw all reasonable inferences in their
favor. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). But
we disregard unsupported conclusions or legal conclusions
couched as factual allegations. See Morrow v. Balaski, 719
F.3d 160, 165 (3d Cir. 2013).
III. Discussion
Though we consolidated the cases for review, the issues
before us are distinct. We first address the District Court’s
order dismissing Falcone’s suit for lack of standing. The
parties ask us to do more, but we begin and end our inquiry
there. We then turn to the District Court’s order dismissing
Murray-Nolan’s suit for failure to state a claim.
A. Falcone - Standing
Falcone challenges the District Court’s finding that he lacks
standing to sue and is not entitled to injunctive relief. Our
standing inquiry is separate from any assessment of his claims’
merits. See Cottrell v. Alcon Lab’ys, 874 F.3d 154, 162 (3d
Cir. 2017). All we ask is whether Falcone plausibly alleges he
was injured under his theory of the underlying legal claims.
So, while we necessarily reference the “nature and source of
the claims” he asserts, id. (quoting Warth v. Seldin, 422 U.S.
490, 500 (1975)), we must not “confuse weakness on the merits
with absence of Article III standing,” Ariz. State Legislature v.
Ariz. Indep. Redistricting Comm’n, LLC, 576 U.S. 787, 800
(2015) (quoting Davis v. United States, 564 U.S. 229, 249 n.10
(2011)). Instead, we assume he would succeed, even if
ultimate recovery is “uncertain or even unlikely.” Mission
Prod. Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652,
1660 (2019).

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To satisfy the familiar requirements for Article III
standing, Falcone (1) must have suffered injury in fact (2) that
is fairly traceable to the challenged conduct and (3) redressable
by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992).
As for injury, Falcone must show that he suffered “an
invasion of a legally protected interest” that is “concrete and
particularized” and “actual or imminent, not conjectural or
hypothetical.” Id. (internal quotation marks omitted). In the
context of a motion to dismiss, the “[i]njury-in-fact element is
not Mount Everest,” and Falcone need only allege “some
specific, identifiable trifle of injury.” Blunt v. Lower Merion
Sch. Dist., 767 F.3d 247, 278 (3d Cir. 2014) (quoting Danvers
Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 294 (3d Cir.
2005)).
The Police Defendants no longer argue that Falcone
failed to establish this requirement. Oral Argument at 22:45-
55 (conceding that he has shown injury in fact). Wisely so.
Falcone contends he was injured on receiving a criminal
summons after exercising his First Amendment right to protest
at a Board meeting. The District Court ruled, and we agree,
that receipt of a summons can be a tangible injury for standing
purposes. Cf. Smith v. Campbell, 782 F.3d 93, 99 n.4 (2d Cir.
2015) (assuming that issuance of traffic ticket can constitute
injury).
Falcone also claims he was injured when the Board
canceled the second meeting to prevent him from exercising
his constitutional rights. At oral argument, counsel for the
BOE Defendants appeared to suggest that the meeting
cancellation cannot cause an individualized injury because

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others were likewise prevented from speaking. Oral Argument
at 44:31-42. Of course, canceling or rescheduling a meeting in
the normal course does not inflict an Article III injury, but
Falcone alleges that the meeting was canceled specifically for
the purpose of preventing him from speaking in that forum.
Conduct undertaken to curtail someone’s First Amendment
rights does not become less injurious or non-retaliatory just
because it has collateral consequences for other people. We
are also unconvinced by the BOE counsel’s contention that
Falcone was not injured by the meeting cancellation because
he might have an opportunity to speak at a later meeting. Oral
Argument at 47:00-51. That argument may fare well as a
response to the merits of Falcone’s substantive due process
violation claim, but it does not help Defendants’ standing
challenge. “[A]lleged First Amendment free speech violations
are concrete and particular injuries for purposes of Article III
standing.” Henry v. Att’y Gen., Alabama, 45 F.4th 1272, 1288
(11th Cir. 2022). That the Board did not indefinitely prevent
Falcone from speaking is of no moment. Cf. Roman Cath.
Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020) (“The
loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury.”
(citation omitted)). So far, we agree with the District Court.
Next, we consider whether Falcone’s alleged injuries
are “fairly traceable” to the Freehold Defendants’ conduct.
The District Court held that they are not because “the mask
mandate emanated from the Governor’s Executive Order and
the BOE was obligated to comply with it.” Falcone App. 7-9.
Falcone contends the Court erred in so holding because it
misconstrued his complaint as a challenge to the mask
mandate. Appellant Br. 9-11. We agree. Falcone does not
claim he was injured from “having to wear a mask” and he does

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not—at least in this suit—challenge the constitutionality of the
mask mandate or the permissibility of the Board’s masking
policy. Instead, he alleges the Freehold Defendants retaliated
against him for his views by issuing a criminal summons and
canceling the second Board meeting to prevent him from
speaking. They cannot hide behind the Governor’s Executive
Order when it is their specific actions that allegedly harmed
Falcone.
We disagree with the BOE Defendants that the issuance
of the summons is not traceable to them. Oral Argument at
40:54-41:16. Falcone claims the Board “conspired” or
“cooperated” with the police to issue the summons. Falcone
App. 19; Appellant Br. 17. Although that claim may not
survive a Rule 12(b)(6) motion to dismiss, it suffices for
purposes of our standing inquiry. We agree with the Police
Defendants, however, that the cancellation of the Board
meeting is not traceable to them, as Falcone does not allege
they had any part in it. See Police Defs. Br. 13.
Third, we consider whether Falcone has established that
his injury can be redressed by a favorable court decision. The
remedy he seeks need not be complete or relieve every injury
alleged to satisfy Article III standing. See Uzuegbunam v.
Preczewski, 141 S. Ct. 792, 801 (2021) (“[T]he ability to
effectuate a partial remedy satisfies the redressability
requirement.” (quotation marks and citation omitted)).
Falcone requested both monetary damages and injunctive
relief, seeking to prevent the defendants from (1) threatening
arrest, summons, or complaint to people attending in-person
Board meetings and exercising their “constitutional rights,” (2)
threatening, intimidating, or coercing him or any other person
“in an attempt to chill the[ir] First Amendment rights,” and (3)

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taking further retaliatory action against him. See Falcone App.
20-21.
The District Court correctly held that Falcone is not
entitled to injunctive relief, and he conceded as much at oral
argument. Our basis, however, parts from that of the Court. It
denied this relief because “an injunction directed at Defendants
would not enjoin the Governor from implementing or
enforcing a mask mandate.” Falcone App. 9. As noted,
Falcone is not challenging the mask requirement or requesting
an injunction barring its enforcement. For the sake of
completeness, the relief he sought is improper, first, because
all his injunctive requests are impermissibly overbroad “obey-
the-law” orders, which are unenforceable for lack of
specificity. See, e.g., Belitskus v. Pizzingrilli, 343 F.3d 632,
650 (3d Cir. 2003). Second, Falcone has alleged no facts on
the Freehold Defendants’ intent to engage in the challenged
conduct again. Without showing a likelihood or immediate
threat of future harm, a plaintiff cannot obtain standing for
prospective relief. Brown v. Fauver, 819 F.2d 395, 400 (3d
Cir. 1987) (citing City of Los Angeles v. Lyons, 461 U.S. 95,
105 (1983)).
As Falcone observes, however, he also seeks money
damages for his past injuries. Falcone App. 20-21; Reply Br.
6. That his alleged injuries are difficult to quantify is
irrelevant. In a § 1983 case, where the plaintiff’s rights were
violated but the violation did not result in any injury calling for
compensatory damages, a request even for “nominal damages
satisfies the redressability element of standing.” Uzuegbunam,
141 S. Ct. at 801-02. Falcone’s monetary damages claim
suffices to establish redressability, and it survives.

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20
Falcone has shown all three elements of standing by
alleging he received a criminal summons and was deprived of
his right to speak in retaliation for exercising his First
Amendment rights. The District Court erred in dismissing his
claims for lack of standing. Accordingly, we reverse and
remand for it to consider the Freehold Defendants’ Rule
12(b)(6) arguments in the first instance. See Shorter v. United
States, 12 F.4th 366, 375 n.9 (3d Cir. 2021) (“[I]n the absence
of exceptional circumstances, we decline to consider an issue
not passed upon below.”). This is not to say, of course, that
Falcone’s claims are likely to survive. On remand, the District
Court may wish to consider, for example, if Falcone has
forfeited any theory that the “constitutionally protected
conduct” undergirding his First Amendment retaliation claim
is something other than his refusal to wear a mask. Arguably
he did, as he repeatedly claimed that “not wearing a mask is
politically protected freedom of speech” and that he was
“retaliated against for actions which were akin to pure speech.”
Dist. Ct. Dkt. 9 at 10; Dkt. 13 at 8.
B. Murray Nolan - First Amendment Retaliation
Murray-Nolan’s amended complaint survived the
Cranford and BOE Defendants’ attack for lack of standing, and
correctly so.7 But the District Court dismissed her First
7 The BOE Defendants challenge the District Court’s standing
analysis, claiming Murray-Nolan’s injuries are (1) not
traceable to them but instead to the Governor, and (2) not
redressable by an injunction. We disagree with the first
argument for the reasons just stated. We agree with the BOE
Defendants (as did the District Court) that Murray-Nolan is not

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21
Amendment retaliation claim under § 1983 and the NJCRA for
failing to allege constitutionally protected conduct, a
component of such a claim.
To prevail, Murray-Nolan must establish that (1) she
engaged in conduct protected by a right in the Constitution, (2)
the Cranford Defendants “engaged in retaliatory action
sufficient to deter a person of ordinary firmness from
exercising [her] constitutional rights,” and (3) a “causal link”
existed between the protected activity and the retaliatory
action. Palardy v. Township of Millburn, 906 F.3d 76, 80-81
(3d Cir. 2018) (quotation marks and citation omitted).8
Ordinarily, Murray-Nolan would need to demonstrate at the
outset that all defendants are “state actors” because § 1983
authorizes suits for violation of federal rights only against
entitled to injunctive relief though, as explained, she is entitled
to monetary damages and so has standing to sue.
We decline to consider Murray-Nolan’s argument
raised in her reply brief that the District Court erred in holding
she was not entitled to injunctive relief because she never
raised it in her opening brief. See Garza v. Citigroup Inc., 881
F.3d 277, 284-85 (3d Cir. 2018). But we understand from our
exchange with counsel during oral argument that Murray-
Nolan concedes she is not entitled to the relief she requested.
Oral Argument at 1:26:15-27:41.
8 As noted, Murray-Nolan asserts a First Amendment
retaliation claim under both § 1983 and the NJCRA, New
Jersey’s state-law analogue. N.J. Stat. Ann. § 10:6-2(c).
Because the NJCRA is interpreted analogously to § 1983, our
analysis applies equally to that statute. See Perez v. Zagami,
LLC, 94 A.3d 869, 877 (N.J. 2014); Filgueiras v. Newark Pub.
Schs., 45 A.3d 986, 997 (N.J. Super. Ct. App. Div. 2012).

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22
persons or entities who acted “under color of law.” See 42
U.S.C. § 1983; Groman v. Township of Manalapan, 47 F.3d
628, 638 (3d Cir. 1995). In limited circumstances, even private
parties like the Attorney Defendants here may be treated as
state actors. See Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass’n, 531 U.S. 288, 295 (2001). They dispute their
status as such. Although it is not obvious to us that their actions
meet that threshold, we assume for purposes of our analysis
that they do.
The District Court, as noted, held that Murray-Nolan’s
First Amendment claim faltered by failing to show that her
refusal to wear a mask was constitutionally protected conduct.
She argues the Court erred because it “fail[ed] to analyze the
retaliatory nature of her arrest” and to “recognize that the
nature of [her] First Amendment protest was well known to all
defendants.” Appellant Br. 23. But of course the District Court
was not required to address those issues after finding Murray-
Nolan’s conduct was not constitutionally protected.
To be sure, the First Amendment protects not only “the
spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404
(1989). It also applies to some conduct in some settings, as
circumstances matter. See United States v. O’Brien, 391 U.S.
367, 376 (1968). The Supreme Court has limited First
Amendment protections to what it has called “inherently
expressive” conduct. FAIR, 547 U.S. at 66. To qualify, an
action must satisfy two elements: the actor must “inten[d] to
convey a particularized message,” and there must be a high
“likelihood” that “the message [will] be understood by those
who view[] it.” Johnson, 491 U.S. at 404 (quoting Spence v.

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23
Washington, 418 U.S. 405, 410-11 (1974)).9 The first element
does not pose a high bar, but the second is trickier. That is so
because a viewer must be able to understand the message from
the conduct alone. See FAIR, 547 U.S. at 66. If some
“explanatory speech is necessary,” the conduct does not
warrant protection; otherwise, a party “could always transform
conduct into ‘speech’ simply by talking about it.” Id.
Hence context comes into play. See Spence, 418 U.S.
at 410. It is what separates activity that is sufficiently
expressive from similar activity that is not. For example, the
burning of the American flag in Johnson was expressive
because it occurred during a “political demonstration” against
President Reagan’s policies. 491 U.S. at 405-06. Likewise,
the taping of a peace sign to the American flag in Spence was
expressive because it was “roughly simultaneous with and
concededly triggered by the Cambodian incursion [during the
Vietnam conflict] and the Kent State tragedy.” 418 U.S. at
410. And in Tinker, students’ wearing of black armbands to
protest American military involvement was expressive because
it “conveyed an unmistakable message about a
contemporaneous issue of intense public concern—the
Vietnam hostilities.” Id. (citing Tinker v. Des Moines Indep.
Cmty. Sch. Dist., 393 U.S. 503, 505 (1969)).
9 Paradigms of protected conduct-based speech are the burning
of the American flag as part of a political demonstration, see
id. at 404-06, students’ wearing of black armbands to protest
American military involvement in Vietnam, see Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969), and
sit-ins by black persons in “whites only” areas to protest racial
segregation, see Brown v. Louisiana, 383 U.S. 131, 141-42
(1966).

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24
Against this backdrop, we consider whether the First
Amendment protects Murray-Nolan’s refusal to wear a
COVID mask at a Board meeting when doing so was required
by an Executive Order implemented by Board policy. The first
element—the intent to convey a particularized message—is
easily met here. Murray-Nolan alleged she refused to wear a
mask to “silent[ly] protest” the Board and Superintendent’s
“lack of action related to unmasking children in schools,
particularly those with medical conditions and special needs.”
Appellant Br. 6-7; Murray-Nolan App. 39, 79; see also
Appellant Br. 8, 23. Her mask refusal, she explains, was a sign
of “solidarity with all such children in protesting the Board’s
violation of their civil rights.” Appellant Br. 8.
But Murray-Nolan cannot satisfy the second element
because it is unlikely that a reasonable observer would
understand her message simply from seeing her unmasked at
the Board meeting. She claims that, “in the then-existing
political climate[,] refusing to wear a mask itself was an overt
political statement.” Appellant Br. 6. We have no doubt that,
during the pandemic, some people refused to wear a mask to
send a political message. But the problem for Murray-Nolan
is that going maskless is not usually imbued with symbolic
meaning. The Governor’s Executive Order, for example,
exempted individuals from the masking requirement for
medical reasons. How would attendees know that Murray-
Nolan was unmasked not because she was medically exempt
but because she intended to express her dismay with the
Board’s inaction related to unmasking of school children?
They wouldn’t, unless they were aware of her vocal protests
predating her maskless appearance at the meeting. She
concedes as much by contending that Defendants “knew why
[she] engaged in a long-standing silent protest” because of her

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25
“vocal protests through her speeches about their inaction.”
Appellant Br. 20. Furthermore, how would attendees know
what “particularized message” Murray-Nolan sent by refusing
to wear a mask? Was it general defiance of the government?
Skepticism toward government health experts? Opposition to
the Governor’s mask mandate? Or, as she alleges, opposition
to the Board’s and Superintendent’s “lack of action related to
unmasking children in schools, particularly those with medical
conditions and special needs”? Murray-Nolan App. 79.
Again, her message was susceptible to multiple interpretations,
and understanding it required additional “explanatory speech.”
FAIR, 547 U.S. at 66.
Unlike burning a flag, wearing a medical mask—or
refusing to do so—is not the type of thing someone typically
does as “a form of symbolism.” Spence, 418 U.S. at 410. The
American flag is inherently symbolic. See Johnson, 491 U.S.
at 405. A medical mask is not. It is a safety device—
“protective equipment” used “to protect the wearer from
particles or from liquid contaminating the face.” N95
Respirators, Surgical Masks, Face Masks, and Barrier Face
Coverings, FDA (Mar. 10, 2023), https://perma.cc/E8FM-
2M2K. To combat COVID-19, people wear it to curb the
spread of an airborne disease. Skeptics are free to—and did—
voice their opposition through multiple means, but disobeying
a masking requirement is not one of them. One could not, for
example, refuse to pay taxes to express the belief that “taxes
are theft.” Nor could one refuse to wear a motorcycle helmet
as a symbolic protest against a state law requiring them. The
binary choice envisioned by Murray-Nolan—either disobeying
the Executive Order mandating the wearing of a protective
mask or not speaking at all—is a false one. See Appellant Br.

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26
30-31. We thus agree with the District Court that her refusal
to wear a mask was not constitutionally protected.10
10Every court to address the issue has reached the same
conclusion. See, e.g., Denis v. Ige, 538 F. Supp. 3d 1063, 1079
(D. Haw. 2021) (Hawaii mask mandate did not infringe on
First Amendment freedom of speech because it targeted
“conduct” rather than “speech”; “wearing a mask in public . . .
does not include a significant expressive element”); Stewart v.
Justice, 502 F. Supp. 3d 1057, 1066 (S.D. W. Va. 2020)
(“[A]lthough Plaintiffs feel that refusing to wear a face
covering expresses ‘nonconformity with unconstitutional and
un-American laws,’ that meaning is not ‘overwhelmingly
apparent.’” (citation omitted)); Minn. Voters All. v. Walz, 492
F. Supp. 3d 822, 837-38 (D. Minn. 2020) (“[T]he conduct [of
not wearing a face mask] is not inherently expressive . . . .
Absent explanation, the observer would not know whether the
person is exempt from [the Executive Order], or simply forgot
to bring a face covering, or is trying to convey a political
message.”); Antietam Battlefield KOA v. Hogan, 461 F. Supp.
3d 214, 237 (D. Md. 2020) (“[E]specially in the context of
COVID-19, wearing a face covering would be viewed as a
means of preventing the spread of COVID-19, not as
expressing any message.”), appeal dismissed, No. 20-1579,
2020 WL 6787532 (4th Cir. July 6, 2020), and aff’d in part,
appeal dismissed in part, No. 20-2311, 2022 WL 1449180 (4th
Cir. May 9, 2022); Zinman v. Nova Se. Univ., Inc., No. 21-CV-
60723, 2021 WL 4025722, at *13 (S.D. Fla. Aug. 30, 2021)
(“[N]either wearing or not wearing a mask is inherently
expressive. In the context of COVID-19, wearing a mask does
not evince an intent to send a message of subservience to
authority – or any message at all.”), report and

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27
To the extent Murray-Nolan’s First Amendment
retaliation claim is based on a different theory—that she was
punished for some other protected conduct—we deem that
argument forfeited. To be sure, in addition to claiming that her
recommendation adopted sub nom. Zinman v. Nova Se. Univ.,
No. 21-CIV-60723, 2021 WL 4226028 (S.D. Fla. Sept. 15,
2021), aff’d sub nom. Zinman v. Nova Se. Univ., Inc., No. 21-
13476, 2023 WL 2669904 (11th Cir. Mar. 29, 2023); Whitfield
v. Cuyahoga Cnty. Pub. Libr. Found., No. 21 CV 0031, 2021
WL 1964360, at *3 (N.D. Ohio May 17, 2021) (“[W]earing a
mask is not a symbolic or expressive gesture. It is a health and
safety measure put into effect in many public establishments to
prevent the spread of COVID-19 to employees and other
patrons.”); Nowlin v. Pritzker, No. 20-CV-1229, 2021 WL
669333, at *5 (C.D. Ill. Feb. 17, 2021) (“Plaintiffs challenge
orders that regulate non-expressive conduct such as keeping
certain distance[s], wearing masks, and limiting gathering
sizes. These activities are not speech[,] and regulations that
govern non-expressive conduct do not bring the First
Amendment into play.”), aff’d as modified, 34 F.4th 629 (7th
Cir. 2022); Reinoehl v. Whitmer, No. 21-CV-61, 2022 WL
1110273, at *3 (W.D. Mich. Feb. 3, 2022) (rejecting claim that
“refusal to comply with [Michigan’s Face Mask Order]
constitutes symbolic speech”), report and recommendation
adopted, No. 21-CV-61, 2022 WL 855266 (W.D. Mich. Mar.
23, 2022), aff'd, No. 22-1343, 2023 WL 3046052 (6th Cir. Apr.
17, 2023), cert. denied, No. 23-89, 2023 WL 6378554 (U.S.
Oct. 2, 2023); see also Sehmel v. Shah, 514 P.3d 1238, 1243-
44 (Wash. Ct. App. 2022) (“[W]earing or not wearing a mask
is not sufficiently expressive so as to implicate First
Amendment protections. . . . [T]here is a host of reasons why a
person may not be wearing a mask.”).

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28
conduct constituted protected speech, Murray-Nolan also
alleged she was engaged in other types of speech—for
example, her testimony about mask injuries before the State
Assembly and Senate, “countless social media posts” related
to “the harm to her own children, and to children generally,
from masking in schools,” and her filing of a complaint against
the Board, Murray-Nolan App. 84, 87—but she never ties that
speech to Defendants’ allegedly retaliatory arrest. Rather, she
alleged that, because of her other speech, Defendants
understood the nature of her protest. See, e.g., Murray-Nolan
App. 84, 88, 90. The only form of “speech” she links to her
arrest is her refusal to wear a mask. See Murray-Nolan App.
90 (alleging she was arrested under the guise of a “rule of the
building” for “making a constitutionally protected political
statement by not wearing a mask”); Murray-Nolan App. 91
(alleging Defendants had a “pre-planned” agreement “that the
Plaintiff should be arrested if she did not comply with
[Sciarrillo’s] command to wear a mask”).
Furthermore, in response to Defendants’ motions to
dismiss, Murray-Nolan squarely argued her “constitutionally
protected activity” underlying her First Amendment retaliation
claim was her “not wearing a mask.” See Dist. Ct. Dkt. 13 at
16, Dkt. 30 at 21; Dkt. 39 at 16. That is why the District Court
dismissed her claim for failing to allege she was engaged in
conduct accorded First Amendment protection.
On appeal, Murray-Nolan never argued the District
Court somehow misread her allegation. Instead, she disagrees
with its holding. For instance, she claims “not wearing a mask
was politically protected free speech,” especially “in the then-
existing political climate,” and contends “not wearing a mask
in a public meeting” “touched upon” core First Amendment

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29
speech concerning “politics, nationalism, religion, or other
matters of opinion.” Appellant Br. 6, 13, 26 (citation omitted).
She repeatedly refers to her “First Amendment protest” or
“First Amendment rights to protest.” Id. at 28. Murray-Nolan
quibbles with the District Court’s reasoning that her refusal to
wear a mask was not “inherently expressive” by pointing to her
“‘overwhelmingly apparent’ speech that had been ongoing in
multiple forums for months,” claiming that her masklessness
“was overtly political and was intentional and was
overwhelmingly apparent.” Id. at 30. She also argues that
being maskless at the meeting was the only way she could
express her views—“being unmasked on a video screen from
her home was o[f] no value to [her] protest and would have
defeated it altogether.” Id. at 31.
These arguments carry over in Murray-Nolan’s reply
brief. “[T]he Board,” she argues, “made clear that they would
retaliate against [her] for not wearing a mask.” Reply Br. 4.
She reiterates “she was engaged in a constitutionally protected
free speech protest,” “had a right to be in the Board Room
without a mask since she was engaged in a constitutionally
protected protest,” and “was arrested while admittedly . . .
exercising constitutional rights.” Id. at 13. The brunt of her
argument thus rests on defending her position that her maskless
protest was protected speech and claiming that Defendants
were aware of the nature and purpose of that protest. See
Appellant Br. 6-7, 20, 22.
We recognize Murray-Nolan also makes stray
references to other forms of speech as she did in her amended
complaint. See Appellant Br. 21-22, 27-28. But we are not
convinced that she now presses a new theory of protected
conduct. Indeed, our exchange with counsel for Falcone and

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30
Murray-Nolan during oral argument dispelled any doubt we
might have had. When asked, “What is the constitutionally
protected activity that you are telling us exists here?,” counsel
responded: “We have a right to come in unmasked, it’s
symbolic speech to protest the masking policies that were in
place.” Oral Argument at 8:30-43.
Even assuming Murray-Nolan now claims she was
retaliated against for being a vocal critic of the Board and its
policies, she forfeited that argument because she never raised
it in the District Court. See United States v. Dowdell, 70 F.4th
134, 141 (3d Cir. 2023). Our forfeiture doctrine “protect[s]
litigants from unfair surprise[,] promot[es] the finality of
judgments[,] conserv[es] judicial resources[,] and prevent[s]
district courts from being reversed on grounds that were never
urged or argued before [them].” Id. (final alteration in original)
(quoting Webb v. City of Philadelphia, 562 F.3d 256, 263 (3d
Cir. 2009)). These interests are directly implicated here, where
Defendants staked their defense, and the District Court ruled,
on Murray-Nolan’s announced theory that Defendants
retaliated against her for refusing to wear a mask. Though we
have discretion to reach forfeited issues, we see no “truly
‘exceptional circumstances’” that would excuse forfeiture
here. Barna v. Bd. of Sch. Dirs. of the Panther Valley Sch.
Dist., 877 F.3d 136, 146-47 (3d Cir. 2017) (citation omitted).
Because Murray-Nolan failed to allege that she was
engaged in constitutionally protected conduct, the District
Court properly dismissed her First Amendment retaliation
claim under § 1983 and the NJCRA, and we affirm on that
basis alone. But even if we assume she properly pled that her
arrest resulted from engagement in other constitutionally
protected speech—be that filing a lawsuit against the Board,

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31
“public writings,” or “vocal” opposition to the Board’s
actions—her First Amendment retaliation claim still cannot
succeed.
As noted, Murray-Nolan also must show that
Defendants engaged in “retaliatory action” and “a causal link”
exists between the protected conduct and the retaliatory action.
Palardy, 906 F.3d at 80-81. She identifies two “retaliatory
actions”: her arrest and the Board’s cancellation of the January
24, 2022, meeting.11 We address each in turn.
There is no dispute that an arrest constitutes conduct
“sufficient to deter a person of ordinary firmness from
exercising [her] constitutional rights.” Id. (quoting Thomas v.
Independence Township, 463 F.3d 285, 296 (3d Cir. 2006)).
But the existence of probable cause “generally defeat[s] a First
Amendment retaliatory arrest claim.” Nieves v. Bartlett, 139
S. Ct. 1715, 1726 (2019). The District Court found, and we
agree, that the Police Defendants had probable cause to arrest
Murray-Nolan for defiant trespass under N.J. Stat. Ann.
§ 2C:18-3b. Murray-Nolan App. 28-29. That subsection
11 As we read her briefs, the only retaliatory action she
identifies is her arrest. See Appellant Br. 32 (“[D]efendants
took action which would deter a person of ordinary firmness
from engaging in such protected conduct[.] . . . Permitting
defendants to silence Ms. Murray-Nolan with an arrest is to
permit the defeat of the First Amendment[.]”); see also id. at
36-38 (arguing “false arrest” claim against Police Defendants).
At oral argument, however, counsel asserted that Murray-
Nolan also claimed the Cranford Defendants retaliated against
her by canceling the Board meeting, thereby preventing her
from speaking. Oral Argument at 52:48-53:30.

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32
makes it illegal to knowingly “enter[] or remain[] in any place
as to which notice against trespass is given by . . . [a]ctual
communication to the actor [or] [p]osting in a manner
prescribed by law or reasonably likely to come to the attention
of intruders.” N.J. Stat. Ann. § 2C:18-3b. Murray-Nolan was
repeatedly instructed to comply with the masking policy and
informed that the Board would call in law enforcement if she
entered the building maskless. The Board also published a
statement on Facebook after the January 24 meeting (which
Murray-Nolan read) requesting compliance with the masking
policy, and the Superintendent sent an email (which Murray-
Nolan also read) explicitly referring to the Board’s policy
permitting it to “request[] . . . assistance from law enforcement
officers in the removal of a disorderly person when that person
prevents or disrupts a meeting.” Murray-Nolan App. 105, 108-
09. Prior to Murray-Nolan’s arrest, furthermore, a police
officer again reminded her that she “must wear a mask” and
that refusing to do so violated a “rule of the building.” Murray-
Nolan App. 90.
Murray-Nolan knew she was violating a well-
publicized masking policy and could not attend the Board
meeting without a mask, but she did so anyway. The police
thus had ample reason to arrest her for defiant trespass. See
Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir. 2003)
(probable cause exists where “facts and circumstances within
the officer’s knowledge” are “sufficient to warrant a prudent
person . . . in believing . . . that the suspect has committed, is
committing, or is about to commit an offense” (quoting
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). Murray-
Nolan’s response, that the arresting officer allegedly agreed
“she was engaged in a constitutionally protected free speech
protest,” Reply Br. 13, is unavailing because the officer’s

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33
subjective beliefs are “simply ‘irrelevant’” and provide “no
basis for invalidating an arrest.” Nieves, 139 S. Ct. at 1725
(quoting Devenpeck v. Alford, 543 U.S. 146, 153, 155 (2004)).
Ordinarily, our conclusion that probable cause existed
would doom Murray-Nolan’s retaliatory arrest claim.
However, in Nieves the Supreme Court carved out a narrow
exception to that general rule. See id. at 1727. A plaintiff need
not establish the absence of probable cause “where officers
have probable cause to make arrests, but typically exercise
their discretion not to do so.” Id. For this exception to apply,
a plaintiff must present “objective evidence that [she] was
arrested when otherwise similarly situated individuals not
engaged in the same sort of protected speech had not been.”
Id. The Supreme Court provided the example of jaywalking,
which “is endemic but rarely results in arrest.” Id. Thus, “[i]f
an individual who has been vocally complaining about police
conduct is arrested for jaywalking,” the claim should not be
dismissed despite the existence of probable cause because,
“[i]n such a case, . . . probable cause does little to prove or
disprove the causal connection between animus and injury.”
Id.
In her reply brief, Murray-Nolan contends that Nieves’s
narrow exception applies because “people similarly situated as
[her] were not arrested for attending board meetings unmasked
when they were not necessarily long-standing anti-mask
protestors for children in schools.” Reply Br. 15. That
conclusory statement is not supported by any facts pled in her
amended complaint. Murray-Nolan never alleged selective
enforcement or any facts sufficient to demonstrate a “facial
plausibility” that police commonly see violations of masking

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34
mandates and fail to make arrests. Ashcroft, 556 U.S. at 678.
Nor did she advance this argument in the District Court.
If she asks us to infer an allegation of selective
enforcement from her assertion that, at the first Board meeting,
others allegedly “removed their masks in solidarity with [her],”
Murray-Nolan App. 80, there is a temporal disconnect.
Murray-Nolan was not then singled out among other maskless
attendees. Rather, she was arrested after she tried to attend the
second Board meeting without a mask (following multiple
explicit warnings that doing so was prohibited). And she
nowhere claims that anyone else defied the Board’s
instructions and attended the second meeting without a mask.
All we can discern from her amended complaint is that one,
and only one, individual—Murray-Nolan—repeatedly
disregarded the masking mandate and was eventually arrested
for doing so. She thus cannot find refuge in Nieves’s
exception.
So we turn to her argument that the Cranford
Defendants retaliated against her by canceling the January 24
meeting, where Murray-Nolan made her first maskless
appearance. At the outset, we note that she has no retaliation
claim against the Police Defendants because she does not
allege they played any role in the Board’s decision to cancel
the meeting. Instead, she claims the Board and Attorney
Defendants did so, thereby depriving her of a forum to exercise
her right to speak.
We assume the meeting cancellation is “sufficient to
deter a person of ordinary firmness from exercising [her]
constitutional rights” and focus our analysis on the third prong
of the analytical framework: whether Murray-Nolan has

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35
demonstrated the necessary causal link between the
constitutionally protected conduct and the retaliatory action.
Palardy, 906 F.3d at 80-81. We have recognized that protected
activity close in time to the alleged retaliatory action may
indicate one caused the other. See Thomas v. Town of
Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (“[A]
suggestive temporal proximity between the protected activity
and the alleged retaliatory action can be probative of
causation.”).
Murray-Nolan does not attempt to explain how her
“other” protected conduct is linked to the Board’s decision to
cancel the January 24 meeting. That makes sense because, as
noted, she consistently claimed the Cranford Defendants
retaliated against her for refusing to wear a mask, not for
engaging in constitutionally protected speech. In any event,
there is no temporal proximity or any other causal link here, no
matter which activity we consider.
It appears the cancellation of the January 24 meeting
had nothing to do with Murray-Nolan’s lawsuit against the
Board and its attorneys, which she filed on February 14, 2022,
roughly three weeks after the meeting was suspended. As for
her “public writings” and other “vocal” criticism—e.g., her
testimony before the state legislature, her social media posts,
and her prior speeches at Board meetings—the amended
complaint is silent as to their timing. But even assuming these
alleged protected activities occurred just before the January 24
meeting, there is an obvious break in the chain of causation:
Murray-Nolan’s refusal to wear a mask at that meeting. That
act is not constitutionally protected conduct and thus provides
a straightforward, non-retaliatory explanation for the Board’s
decision to cancel the session. See Lamont v. New Jersey, 637

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F.3d 177, 185 (3d Cir. 2011) (“A superseding cause breaks the
chain of proximate causation.”). Nothing in the record would
allow Murray-Nolan to establish the constitutional causation
necessary for her retaliation claim. We affirm the District
Court’s order on that alternative basis.
* * * * *
The plaintiffs allege they were punished in retaliation
for refusing to wear a COVID-protective mask at Board of
Education meetings. Falcone claims he received a criminal
summons after exercising his First Amendment right to protest,
maskless, at a Freehold Township Board meeting and also was
deprived of an opportunity to speak when the Board canceled
a subsequent meeting. His alleged injuries, at least in part, are
directly traceable to the Freehold Defendants, who allegedly
conspired to violate his First Amendment right to engage in
political and symbolic speech. Because the District Court
dismissed his complaint for lack of standing, and this was the
only basis for its order, we reverse and remand for further
proceedings consistent with this opinion.
Murray-Nolan contends she was arrested for exercising
her right to engage in a maskless, symbolic protest at a
Cranford Township Board meeting. Though she had standing
to sue the Cranford and BOE Defendants, her First
Amendment retaliation claim cannot survive their motions to
dismiss. Amid valid government-mandated health and safety
measures, refusing to wear a face mask is not expressive
conduct protected by the First Amendment. Murray-Nolan’s
retaliation claim also fails because the police had probable
cause to arrest her, and she does not link her constitutionally
protected speech activities (e.g., her social media posts) to any

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of the Cranford Defendants’ allegedly retaliatory actions. We
thus affirm the District Court’s dismissal of her amended
complaint.

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