Jenner v. The Sch. Bd. of Lee Cnty.

Decision Date31 May 2022
Docket Number2:22-cv-85-SPC-NPM
PartiesTARA JENNER, an individual, Plaintiff, v. THE SCHOOL BOARD OF LEE COUNTY, FLORIDA, Defendant.
CourtU.S. District Court — Middle District of Florida

Before the Court is Defendant School Board of Lee County's Motion to Dismiss (Doc. 24). Plaintiff Tara Jenner responded in opposition (Doc. 27). The Court grants the Motion.


This is a First Amendment case about Jenner speaking at a Board meeting (“Meeting”). At the Meeting, the Board planned to elect a new chairperson from its members. That election would take place during agenda “Item B ” along with electing a vice chairperson, approving the agenda, and adopting the schedule for future Board meetings. Item B offered no opportunity for public comment. Instead, the public could speak later in the Meeting during a different agenda session.

Jenner took offense. She says state law requires permitting public comment before the Board takes an official action like electing a new chair. So she stood up to voice her opinions. When Jenner spoke, the Board's attorney said no public comment was allowed. After Jenner continued, the attorney had police remove her from the Meeting. Eventually, the Board elected one of its members as the new chair.

Jenner brings several claims. Among them, she charges First Amendment violations of her right to speak and petition. She also sues for infringing her state-law rights.


A complaint must recite “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a Rule 12(b)(6) motion, the “complaint must contain sufficient factual matter . . . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A facially plausible claim allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Courts must accept all well-pled allegations as true and view them most favorably to plaintiff. Almanza v. United Airlines, Inc., 851 F.3d 1060, 1066 (11th Cir. 2017).


The parties spend much of their papers fighting about what state law demands. They have an interesting dispute, and each raises fair points. Yet the Court need not settle what Florida law requires because the Board's actions did not violate the First Amendment. See McDowell v. Brown 392 F.3d 1283, 1289 (11th Cir. 2004) (imposing municipal liability under 42 U.S.C. § 1983 requires a constitutional violation).

A. Addressing Claims

After amending, Jenner lofts First Amendment speech and petition claims. These are different; so courts cannot unthinkingly treat them the same. Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 388 (2011). Still, speech and petition rights are “cognate” (i.e., they “share substantial common ground”). Id. (citation omitted). Depending on the facts, therefore, courts may apply speech-related tests to petition claims. Id. at 392-93, 398.[2]

While pled separately, the parties seemingly agree the same legal standard applies to both claims. Compare (Doc. 24 at 11 (arguing the claims are duplicative)), with (Doc. 27 at 11 (contending the tests applied to Jenner's speech and petition claims “will be the same”)). And given the circumstances, there is no need to wax poetic about the distinct right to petition (like its importance to republican self-government since Magna Carta). See Guarnieri, 564 U.S. at 395-97. It is clear the applicable speech standard applies equally to petitioning the Board.

When Jenner stood at the Meeting, she sought to speak about public comment opportunities. These statements included her thoughts on public comment at Board meetings generally and petitioning the Board with her grievances on the topic. However characterized though, Jenner wanted to express her opinions through speech. And there is no meaningful difference between Speech and Petition Clause theories here. See Galena v. Leone, 638 F.3d 186, 197 & n.7 (3d Cir. 2011) (treating speech and petition claims as the same for restricting public comment at meeting). What's more, given the Board's weighty interests in orderly meetings, there is no reason to treat speakers different depending on which Clause they purport to vindicate. In sum, the proper analysis addresses both First Amendment claims together.[3]

With that settled, the Court shifts to the normal speech test.

B. Determining Forum

The First Amendment sets out a broad right-a state “shall make no law . . . abridging the freedom of speech . . . or the right of the people . . . to petition the Government for a redress of grievances.” U.S. Const. amend. I; see City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 412 n.1 (1993). Of course, that right “is not absolute.” Ashcroft v. Am. Civ. Liberties Union, 535 U.S. 564, 573 (2002). The First Amendment does not guarantee persons the right to communicate their views ‘at all times or in any manner that may be desired.' Jones v. Heyman, 888 F.2d 1328, 1331 (11th Cir. 1989) (quoting Heffron v. Int'l Soc'y for Krishna Consciousness, 452 U.S. 640, 647 (1981)). To guide the review of restrictions on speech, courts use forum analysis. Cambridge Christian Sch., Inc. v. Fla. High Sch. Athletic Ass'n, 942 F.3d 1215, 1236 (11th Cir. 2019). It follows then that the first step is to decide which one of the three (or four) broad fora applies. Id.

Without discussion, the parties agree the Meeting was a limited public forum.[4] They're right public meetings like this one generally fall into that category. E.g., Rowe v. City of Cocoa, Fla., 358 F.3d 800, 802-03 (11th Cir. 2004). But courts must not blindly consider public meetings “as a whole because forum analysis is limited to the particular part of the forum to which the would-be speaker has sought access.” Barrett v. Walker Cnty. Sch. Dist., 872 F.3d 1209, 1224 n.9 (11th Cir. 2017). In other words, the analysis (properly oriented) should focus on Item B-not the entire Meeting or its later public comment session. Bloedorn v. Grube, 631 F.3d 1218, 1232 (11th Cir. 2011). The forum “distinction matters because the type of forum determines the level of scrutiny applied.” Keister v. Bell (Keister 1), 879 F.3d 1282, 1288 (11th Cir. 2018).

Item B was not open to public comment and considered ministerial by the Board. So it might register as the lowest forum: nonpublic. See Cambridge Christian, 942 F.3d at 1237-40. This forum “is a government ‘space that is not by tradition or designation a forum for public communication.' Id. (quoting Minn. Voters All. v. Mansky, 138 S.Ct. 1876, 1885 (2018)). “A space where the state is acting only as ‘a proprietor, managing its internal operations,' falls into this category.” Id. (quoting Walker v. Sons of Confederate Veterans, Inc., 576 U.S. 200, 216 (2015)).

Portions of Item B were for obvious internal operation purposes (like approving the Meeting agenda and future calendar). See Fla. Stat. § 286.0114(2), (3)(b) (stating the public has no right “to be heard” on “ministerial acts, including but not limited to, approval of minutes”). The parties might even agree electing the vice chair was ministerial because Jenner does not challenge that action. In any event, the Board didn't open the forum (i.e., Item B) for speech (i.e., public comment). So perhaps it was not a forum at all.

At this point, it helps to note the Supreme Court's clear-as-mud precedent on whether limited and nonpublic fora are different. Compare Walker, 576 U.S. at 215-16 (distinguishing limited and nonpublic fora), with Mansky, 138 S.Ct. at 1885 (identifying only “three types of” fora). The Eleventh Circuit reads these as distinct. Cambridge Christian, 942 F.3d at 1237 & n.5; Keister v. Bell (Keister 2), 29 F.4th 1239, 1251 & n.7 (11th Cir. 2022). Other Circuits-and even some Supremes-don't. E.g., Am. Freedom Defense Initiative v. King Cnty., Wash., 577 U.S. 1202 (2016) (Thomas, J., dissenting); NAACP v. City of Phila., 834 F.3d 435, 441 & n.2 (3d Cir. 2016). If there is a difference between the two, First Amendment rights are at their lowest measure in a nonpublic forum. Cambridge Christian, 942 F.3d at 1240 (“Indeed, the government has ‘much more flexibility to craft rules limiting speech' in a nonpublic forum than in any other kind of forum.”) (quoting Mansky, 138 S.Ct. at 1885)).

For what it's worth, this case presents a good example of why recognizing a fourth forum is preferable. Some government properties are “not fora at all.” Ark. Educ. Tele. Comm'n v. Forbes, 523 U.S. 666, 677 (1998). When the Supremes said that, they understood limited and nonpublic fora as the same. Id. at 677-78; Barrett, 872 F.3d at 1225. But if a limited public forum is distinct, the question arises what nonpublic means. Again, it would seem a nonpublic forum is not a forum “at all.” Forbes, 523 U.S. at 677. And Item B appears to fit neatly within that characterization. Put simply, the Board did not open Item B to speech from anyone. That fact makes it hard to understand how Item B could be a limited public forum-which exists when “a government has reserved a forum for certain groups or for the discussion of certain topics.” Walker, 576 U.S. at 215 (cleaned up). To assume the Board created a speech forum (which it clearly did not intend) violates settled First Amendment law. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802-03 (1985) (“The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.... We will not find that a public forum has been created in the face of clear evidence of a contrary intent.”).

Even so, the parties make no argument for a...

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