Gundy v. City of Jacksonville Fla.
| Docket Number | 21-11298 |
| Decision Date | 30 September 2022 |
| Citation | 50 F.4th 60 |
| Parties | Reginald L. GUNDY, Plaintiff-Appellant, v. CITY OF JACKSONVILLE FLORIDA, a Municipality of the State of Florida, Aaron L. Bowman, individually, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Neil L. Henrichsen, Henrichsen Law Group, PLLC, Jacksonville, FL, Victoria Blanche Kroell, Cole Scott & Kissane, PA, Jacksonville, FL, for Plaintiff-Appellant.
Craig Dennis Feiser, Mary Margaret Giannini, Assistant General Counsel, Jon Robert Phillips, Jason Robert Teal, Gabriella Young, Office of General Counsel, City of Jacksonville, Jacksonville, FL, for Defendants-Appellees.
Before Lagoa, Brasher, and Tjoflat, Circuit Judges.
This appeal arises from a legislative invocation given by an invited, guest speaker before the opening of a Jacksonville City Council meeting.1 It centers on the unique role of legislative invocations in our country's history and tradition, the First Amendment, and the distinction between government speech and private speech. As a matter of first impression for our Circuit, we hold that the legislative invocation at issue constitutes government speech. For this reason, after careful review and with the benefit of oral argument, we hold that the district court erred in its motion to dismiss and summary judgment orders by classifying the legislative invocation as private speech in a nonpublic forum. That said, we nonetheless affirm the district court's ultimate disposition of the case because we hold that Reginald L. Gundy's invocation constitutes government speech, not subject to attack on free speech or free exercise grounds. A discussion of the four-minute sequence of events and relevant procedural background that led to this appeal now follows.
According to a 2010 City Council memorandum (the "Webb Policy"), the City Council "has long maintained a tradition of solemnizing its proceedings by allowing for an opening invocation before each meeting, for the benefit and blessing of the Council." Under this policy, "legislative invocations are not a forum for the free exercise of personal religious beliefs, but rather a vehicle through which the Council itself, through selected speakers, seeks blessings and guidance in accomplishing its governmental work." The Webb Policy also states that "legislative invocations must not be exploited to proselytize or advance any one faith or belief, or to disparage any other faith or belief, and must not create the impression that the legislative body is affiliated, or intends to affiliate, with any particular faith or belief." Additionally, "[i]ndividuals remain free to pray on their own behalf, as their conscience requires."
As part of this history and tradition, City Council Rule 1.106 calls for the appointment of a council member as "Chaplain of the Council" to help facilitate "a prayer/invocation" before each meeting; in accordance with Rule 1.106, "[e]ach council member" is given an opportunity to invite a speaker from "religious congregations with an established presence in Jacksonville" to give an invocation. And in line with this directive, Anna Brosche, a City Council member and a then-mayoral candidate, invited Reginald L. Gundy to give the invocation at the March 12, 2019, City Council meeting. The City Council meeting preceded election day for the municipal elections by about a week.
Mr. Gundy, a senior pastor at the Mount Sinai Missionary Baptist Church in Jacksonville, accepted Ms. Brosche's offer. At the time, Mr. Gundy was a supporter of Ms. Brosche's mayoral campaign, having donated to the campaign and having hosted a campaign meeting at his church. After accepting Ms. Brosche's offer, Mr. Gundy typed out a two-page prayer before the City Council meeting. Then, on March 12, Mr. Gundy arrived at the City Council meeting. Without being given a time limit for his invocation or advised as to topics deemed appropriate for invocations, Mr. Gundy stepped up to the microphone at the lectern and began his invocation.
Mr. Gundy started with a direct appeal to a higher power. When Mr. Gundy transitioned to levying criticisms against the City's executive and legislative branches, Aaron Bowman, president of the City Council at the time, interrupted Mr. Gundy, stating: Mr. Gundy continued with the invocation, and, when Mr. Bowman felt that Mr. Gundy did not change the tenor of the invocation, Mr. Bowman cut off the feed to Mr. Gundy's microphone. Mr. Gundy then finished the invocation without the benefit of the microphone. With neither incident nor confrontation, Mr. Gundy left the lectern after the City Council recited the Pledge of Allegiance.
A day after the invocation, Mr. Bowman, who supported Ms. Brosche's opponent in the mayoral race, Lenny Curry, took to Twitter and made a thinly veiled reference to Ms. Brosche, stating:
I never envisioned a [council member] stooping so low to find a pastor that would agree to such a sacrilegious attack politicizing something as sacred as our invocation. It obviously was a last ditch effort to try and revive a failed term and campaign. Fortunately I control the microphone.
Per his deposition testimony about his decision to cut off the microphone, Mr. Bowman believed that Mr. Gundy's invocation "was not a blessing of the [C]ouncil" and that "it crossed the political lines" by "attacking the administration, knowing that [Mr. Gundy] had sponsored [Ms. Brosche] at his church for an event." Mr. Bowman said that he To Mr. Bowman, "it was very clear that [Mr. Gundy] was acting on [Ms. Brosche's] behalf to try to discredit the current-sitting mayor and her opponent." Mr. Bowman also stated that the invocation was "not appreciated by many of the council members and they wanted [him] to take action."
Mr. Bowman noted that determining when someone crosses the line in an invocation is like "artwork" in that Mr. Bowman does not "know it until [he] see[s] it" but, once known, he can act to prevent an invocation from straying from its purpose as a blessing and proceeding into a political discussion. This is because Mr. Bowman, as the president of the City Council, has general authority under City Council Rule 1.202 to "control ... the Council chamber and committee room and ... the offices and other rooms assigned to the use of the Council whether in City Hall or elsewhere," as well as general authority to maintain decorum and discipline when serving as the presiding officer of meetings under City Council Rules 4.202(f) and 4.505. Mr. Bowman stated that a political attack against "anybody," including a hypothetical attack against Ms. Brosche, would be "out of line" and that "[a]ny discussion of politics" in the City Council chamber would require Mr. Bowman to take action.
On July 2, 2019, Mr. Gundy brought suit against both the City and Mr. Bowman in his personal capacity. Mr. Gundy then filed an amended complaint on September 30, 2019, marking the operative complaint of the lawsuit. In his amended complaint, Mr. Gundy alleged four counts against the City and Mr. Bowman. The counts stemmed from Mr. Bowman's decision to cut the feed to Mr. Gundy's microphone and Mr. Bowman's subsequent actions, including issuing the Twitter statement and a May 1, 2019, memorandum that outlined new procedures for prayer invocations (the "Bowman Memorandum").
In his first two counts, actionable under 42 U.S.C. § 1983, Mr. Gundy alleged that both the City and Mr. Bowman violated his First Amendment rights under the Free Exercise Clause (Count I) and the Free Speech Clause (Count II) of the United States Constitution. Under both counts, Mr. Gundy alleged that Mr. Bowman's actions violated his "clearly established" constitutional rights and were retaliatory, though he did not bring a discrete count for First Amendment retaliation. For the same reasons, Mr. Gundy brought another two counts against the City, alleging violations of the free exercise and the free speech clauses of the Florida Constitution (respectively, Counts III and IV).
Per his deposition testimony, Mr. Gundy said that he was "offended by [Mr. Bowman's tweet]" calling his "prayer ... sacrilegious" and that he felt like his "constitutional rights ha[d] been violated." In his amended complaint, Mr. Gundy also noted that Mr. Bowman did not interrupt a 2018 invocation in which "the presenter extensively discussed violence in the City of Jacksonville." For these reasons, Mr. Gundy alleged that Mr. Bowman's actions "were taken for retaliatory, political and other impermissible reasons" and that the City Council, through the City Council Rules, policy, and the Bowman Memorandum, maintained a "policy, custom, and practice" of limiting the free exercise of religion and speech.
On October 14, 2019, the City and Mr. Bowman (collectively, "Defendants") moved to dismiss Mr. Gundy's amended complaint with prejudice. The Defendants later amended their motion to dismiss on April 17, 2020. As relevant to this appeal, the Defendants argued that Mr. Gundy's rights had not been violated because the "limited and focused purpose" of Mr. Gundy's "invited speech was to offer up a religious benediction to the nineteen-member City Council." For this reason, the Defendants argued that Mr. Gundy's invocation constituted government speech subject to the confines of the Establishment Clause—not the confines of the Free Speech Clause or the Free Exercise Clause. And, while Mr. Gundy did not plead a discrete Establishment Clause count, the Defendants argued that Mr. Gundy's amended complaint failed to "plausibly allege that...
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