Martin v. Wrigley

Decision Date21 May 2021
Docket NumberCIVIL ACTION FILE NO. 1:20-CV-596-MHC
Citation540 F.Supp.3d 1220
Parties Abby MARTIN, Los Angeles County, California, Plaintiff, v. Steve WRIGLEY, Chancellor for the Board of Regents of the University System of Georgia, in his Official Capacity; Kyle Marrero, President of Georgia Southern University, in his Official Capacity; Bonnie Overstreet, Conference Services Manager for Georgia Southern University, in her Individual Capacity; Michel Blitch, Conference Services Coordinator for Georgia Southern University, in her Individual Capacity; and Sandra Lensch, Conference Services Specialist for Georgia Southern University, in her Individual Capacity, Defendants.
CourtU.S. District Court — Northern District of Georgia

Edward Terkeel Mitchell, III, Murtaza Waqas Khwaja, Georgia Chapter of the Council on American Islamic Relations, Atlanta, GA, Gadeir I. Abbas, Pro Hac Vice, Justin Sadowsky, Pro Hac Vice, Lena F. Masri, Pro Hac Vice, Cair Legal Defense Fund, Mara E. Verheyden-Hilliard, Partnership for Civil Justice Fund, Washington, DC, for Plaintiff.

Deborah Nolan Gore, State of Georgia, Atlanta, GA, for Defendants Steve Wrigley, Kyle Marrero.

ORDER

MARK H. COHEN, United States District Judge This case comes before the Court on DefendantsMotion to Dismiss Plaintiff's First Amended Complaint ("Mot. to Dismiss") [Doc. 37].

I. BACKGROUND1

Plaintiff Abby Martin ("Martin") is a journalist who frequently expresses views in support of the rights of Palestinians and the Boycott, Divestment, Sanctions ("BDS") movement, which supports a political and economic boycott of Israel based on actions taken by the Israeli government with respect to its occupation of Palestinian territory. First Am. Compl. ("Am. Compl.") [Doc. 26] ¶¶ 4, 21. On July 19, 2019, Georgia Southern University ("GSU") invited Martin to speak at the 2020 International Critical Media Literary Conference (the "Conference"), which was to be hosted by GSU. Id. ¶ 5. Martin accepted the invitation. Id. One week later, a professor at GSU and conference co-chair emailed several professors at other academic institutions to inform them that Martin had been selected as the keynote speaker for the Conference. Id. ¶ 40. In that email, the professor referred to Martin as a "fantastic Key Note," and planning for the Conference continued. Id. ¶¶ 40-41.

On September 11, 2019, Defendants Overstreet, Blitch, and Lensch, on behalf of Defendants Wrigley and Marrero, sent Martin an agreement for her engagement as an independent contractor to provide her keynote presentation in exchange for a $1,000 honorarium as well as costs of travel and lodging. Id. ¶¶ 5, 42. On September 18, 2019, Defendants Overstreet, Blitch, and Lensch wrote Martin again to "draw [her] attention [to] legal language that the University and State of Georgia require us to include" and to state that her invitation would be honored only "[i]f this language is acceptable." Id. ¶¶ 43-44. The language referenced in the agreement was the following clause: "You certify that you are not currently engaged in, and agree for the duration of this agreement not to engage in, a boycott of Israel, as defined in O.C.G.A. Section 50-5-85." Id. ¶¶ 5, 43. This certification was required pursuant to Georgia Senate Bill 327, codified as O.C.G.A. § 50-5-85, which became effective on May 9, 2017. Id. ¶¶ 3, 43, 49-50. O.C.G.A. § 50-5-85 provides, in pertinent part, as follows:

The state shall not enter into a contract with an individual or company if the contract is related to construction or the provision of services, supplies, or information technology unless the contract includes a written certification that such individual or company is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel.

O.C.G.A. § 50-5-85(b). The law defines "Boycott of Israel" to mean

engaging in refusals to deal with, terminating business activities with, or other actions that are intended to limit commercial relations with Israel or individuals or companies doing business in Israel or in Israeli-controlled territories, when such actions are taken:
(A) In compliance or adherence to calls for a boycott of Israel other than those boycotts to which 50 U.S.C. App. Section 2407(c), as it existed on January 1, 2016, applies; or
(B) In a manner that discriminates on the basis of nationality, national origin, religion, or other unreasonable basis that is not founded on a valid business reason.

O.C.G.A. § 50-5-85(a).

Martin responded the same day, stating: "I'm sure you know, a lot of my work advocates the boycott of Israel, and my new film features that call to action. I cannot sign any form promising not to boycott Israel." Id. ¶¶ 5, 45. As a result, Defendants prevented Martin from speaking at the Conference and receiving the $1,000 honorarium, and subsequently cancelled the Conference. Id. ¶¶ 6-7, 50, 52. As a result, Martin was deprived of her ability to speak on the GSU campus, to receive the honorarium, and to showcase her work. Id. ¶¶ 53-55. Martin, a frequent public speaker, alleges that she is likely to be prevented from speaking on other college campuses overseen by Wrigley. Id. ¶ 56.

On July 28, 2020, Martin filed her First Amended Complaint in the above-styled action alleging that O.C.G.A. § 50-5-85 violates the First and Fourteenth Amendments to the United States Constitution by impermissibly infringing on Martin's guaranteed rights to freedom of speech, freedom of association, and due process. Am. Compl. ¶¶ 57-95. Martin seeks, inter alia , an injunction against the continuing enforcement of the statute, a declaration that the statute is unconstitutional, and damages against Defendants Overstreet, Blitch, and Lensch in their individual capacities. Id., Prayer for Relief.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Under Federal Rule of Civil Procedure 12(b)(6), a claim will be dismissed for failure to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Supreme Court has explained this standard as follows:

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citation omitted). Thus, a claim will survive a motion to dismiss only if the factual allegations in the pleading are "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

At the motion to dismiss stage, the court accepts all well-pleaded facts in the plaintiff's complaint as true, as well as all reasonable inferences drawn from those facts. McGinley v. Houston, 361 F.3d 1328, 1330 (11th Cir. 2004) ; Lotierzo v. Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). Not only must the court accept the well-pleaded allegations as true, but these allegations must also be construed in the light most favorable to the pleader. Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011). However, the court need not accept legal conclusions, nor must it accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Thus, evaluation of a motion to dismiss requires the court to assume the veracity of well-pleaded factual allegations and "determine whether they plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937.

III. DISCUSSION

"It is well established that [ 42 U.S.C. §] 1983 itself creates no substantive rights; it merely provides a remedy for deprivations of federal rights established elsewhere." Wideman v. Shallowford Cmty. Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir. 1987) (citing City of Okla. City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) ). To sustain a cause of action based on section 1983, a litigant must establish two elements: (1) that she suffered a deprivation of a right, privilege, or immunity protected by the U.S. Constitution or federal law, and (2) that the act or omission causing the deprivation was committed by a person acting under color of state law. Livadas v. Bradshaw, 512 U.S. 107, 132, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) ; Arrington v. Cobb Cnty., 139 F.3d 865, 872 (11th Cir. 1998). "[S]ection 1983 imposes liability only ‘for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.’ " Wideman, 826 F.2d at 1032 (quoting Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) ). Accordingly, "[i]n any § 1983 action, a court must determine ‘whether the Plaintiff has been deprived of a right secured by the Constitution and laws of the United States.’ " Glenn v. Brumby, 663 F.3d 1312, 1315 (11th Cir. 2011) (quoting Baker, 443 U.S. at 146, 99 S.Ct. 2689 ). "Absent the existence of an underlying constitutional right, no section 1983 claim will lie." Wideman, 826 F.2d at 1032.

Martin asserts two causes of action under 42 U.S.C. § 1983, claiming that Defendants’ enforcement of O.C.G.A. § 50-5-85 violates her First and Fourteenth Amendment rights to freedom of speech and assembly (Count One) and her Fourteenth Amendment right to due process (Count Two). Am. Compl. ¶¶ 57-95. Defendants contend that O.C.G.A. § 50-5-85 is constitutional, so that Martin's claims fail as a matter of law. Mot. to Dismiss.

A. Martin's Complaint States a Claim Upon Which Relief Can Be Granted That O.C.G.A. § 50-5-85 Violates Martin's First and Fourteenth...

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1 books & journal articles
  • Political Nonexpenditures: "Defunding Boycotts" as Pure Speech.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 45 No. 2, July 2022
    • July 1, 2022
    ...Amawi v. Paxton, 956 F.3d 816 (5th Cir. 2020); Koontz v. Watson, 283 F. Supp. 3d 1007, 1020-24 (D. Kan. 2018); Martin v. Wrigley, 540 F. Supp. 3d 1220, 1227-31 (N.D. Ga. (12.) 424 U.S. 1 (1976). (13.) See 138 S. Ct. 2448, 2486 (2018). (14.) See On This Day, the Boston Tea Party Lights a Fus......

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