50 F.4th 60
11th Cir.2022Background
- Jacksonville City Council maintained a longstanding practice (Webb Policy and Council Rule 1.106) of opening meetings with an invited invocation "for the benefit and blessing of the Council," with council members selecting speakers from local congregations.
- On March 12, 2019, Pastor Reginald Gundy, who had supported a councilmember's mayoral campaign, delivered a prepared invocation that included criticisms of city officials; Council President Aaron Bowman interrupted and cut Gundy’s microphone after requesting a "spiritual prayer."
- Bowman later posted a critical tweet and issued a memorandum instituting new invocation procedures; no physical confrontation occurred and Gundy completed the prayer off-microphone.
- Gundy sued the City and Bowman under 42 U.S.C. § 1983 and the Florida Constitution for violations of the Free Speech and Free Exercise Clauses; the district court dismissed some claims, allowed others, then granted summary judgment to the City treating the invocation as private speech in a nonpublic forum and Bowman as entitled to qualified immunity.
- On appeal the Eleventh Circuit held (as a matter of first impression in the circuit) that legislative invocations are government speech under the government‑speech framework (history, endorsement, control); because Gundy did not plead an Establishment Clause claim, his Free Speech and Free Exercise claims fail, and the court affirmed the district court’s judgment on that alternative ground.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the invocation was government speech or private speech | Gundy: invocation was private speech in a nonpublic forum subject to First Amendment protection | City/Bowman: invocation is government speech and thus not governed by Free Speech/Free Exercise analysis (only Establishment Clause) | Invocation is government speech (history, endorsement, control factors); Free Speech/Free Exercise claims unavailable |
| Qualified immunity for Bowman | Gundy: Bowman violated clearly established First Amendment rights by cutting mic | Bowman: acted within authority to preserve decorum and was entitled to qualified immunity | District court found qualified immunity; appellate court affirmed overall judgment on government‑speech ground (claims fail) |
| Monell municipal liability for the City | Gundy: City had customs/policies arbitrarily enforced (discriminatory application of Rule 1.202) | City: Rule 1.202 is facially reasonable; no pattern of arbitrary enforcement; restriction was reasonable in forum | Summary judgment for City affirmed (government speech holding disposes of the §1983 claims; no Monell liability shown) |
| First Amendment retaliation claim | Gundy: Bowman’s tweet and subsequent memo show retaliatory, political motives | Defendants: actions were nondiscriminatory, aimed at preserving invocation's purpose and order | Court did not reach a separate retaliation remedy; government‑speech ruling disposes of constitutional claims |
Key Cases Cited
- Marsh v. Chambers, 463 U.S. 783 (1983) (legislative prayer rooted in history and tradition; permissible under Establishment Clause in traditional form)
- Town of Greece v. Galloway, 572 U.S. 565 (2014) (legislative prayer practice permissible; courts should not require nonsectarian prayers; content review limited)
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (government‑speech doctrine: government may speak for itself and select its messages)
- Cambridge Christian School, Inc. v. Fla. High Sch. Athletic Ass'n, Inc., 942 F.3d 1215 (11th Cir. 2019) (articulated history, endorsement, control factors for government‑speech inquiry)
- Mech v. School Bd. of Palm Beach Cnty., 806 F.3d 1070 (11th Cir. 2015) (caution against judicially declaring speech to be government’s as a matter of law)
- Leake v. Drinkard, 14 F.4th 1242 (11th Cir. 2021) (government speech is not regulated by the Free Speech Clause)
- Fields v. Speaker of Pa. House of Representatives, 936 F.3d 142 (3d Cir. 2019) (legislative prayer constitutes government speech; Free Speech/Free Exercise claims fail)
- Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008) (Establishment Clause framework for legislative prayer: speaker identity, selection process, prayer nature)
- Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) (municipal liability under § 1983 requires an official policy or custom)