McGriff v. City of Miami Beach

• Docket Number: 22-12863
• Decision Date: 27 October 2023
• Parties: JARED MCGRIFF, OCTAVIA YEARWOOD, RODNEY JACKSON, NAIOMY GUERRERO, Plaintiffs-Appellants, v. CITY OF MIAMI BEACH, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

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JARED MCGRIFF, OCTAVIA YEARWOOD, RODNEY JACKSON, NAIOMY GUERRERO, Plaintiffs-Appellants,
v.
CITY OF MIAMI BEACH, Defendant-Appellee.

No. 22-12863

United States Court of Appeals, Eleventh Circuit

October 27, 2023

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:20-cv-22583-MGC

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Before JORDAN, ROSENBAUM, and HULL, Circuit Judges.

HULL, CIRCUIT JUDGE

Artists Jared McGriff, Octavia Yearwood, Rodney Jackson, and Naiomy Guerrero (collectively "plaintiffs") appeal the district court's entry of summary judgment in favor of the City of Miami Beach on their First Amendment claim brought against the City under 42 U.S.C. § 1983. The City contracted with the artists to create and curate a series of artworks that the City would own. The district court entered summary judgment after finding that the City's removal of one piece of plaintiffs' artwork constituted government speech and was immune from First Amendment scrutiny under Pleasant Grove v. Summum, 555 U.S. 460 (2009) and Walker v. Texas Division, Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015). After review and with the benefit of oral argument, we agree and affirm the summary judgment under the particular factual circumstances of this case.

I. FACTS AND PROCEDURAL HISTORY

The City of Miami Beach has a troubling and regrettable history of race relations. In hopes of "sparking crucial conversations about inclusion, blackness, and relationships," the City organized an event called "ReFrame: Miami Beach" ("ReFrame"), which included a series of art installations to be displayed on Memorial Day Weekend 2019. The City signed

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Professional Services Agreements ("the Agreements") with plaintiffs McGriff's and Yearwood's production companies to, among other things, curate an installation called "I See You, Too."^[1]In relevant part, the Agreements provided:

• "All installations shall be subject to review and approval by the City Manager's designee"

• "[A]ll services provided by the [production companies] shall be performed . . . to the reasonable satisfaction of the City Manager";

• "Any work product arising out of th[e] Agreement[s], as well as all information specifications, processes, data and findings, are intended to be the property of the City and shall not otherwise be made public and/or disseminated by [the production companies], without the prior written consent of the City Manager . . ."; and

• "[T]he City will provide [the production companies] with the appropriate location to perform the services ...."

(Font altered.)

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In preparation for ReFrame, the City distributed a press release on City letterhead and flyers that marketed the event. The press release and flyers included the City's e-mail addresses, characterized ReFrame as the City's inaugural festival, and advertised the I See You, Too installation. The press release and a letter written by the City Manager to the Mayor and City Commission confirmed that the programming was intended to broach the topics of "inclusion, blackness, and relationships." The City also contracted to provide the exhibition venue space for the I See You, Too installation, and the City organized and advertised an opening night cocktail reception and media preview. The City's Mayor was interviewed on National Public Radio ("NPR") with Yearwood about the event.

Among other artworks exhibited at the I See You, Too installation was a painting of a Haitian-American man named Raymond Herisse. A written narration accompanied the painting, explaining how Miami Beach police officers shot and killed Herisse during the 2011 Memorial Day Weekend. After viewing the painting, the City Manager told the artists to remove the Herisse memorial from the exhibition. He later explained to the Mayor and City Commission that the painting was "potentially divisive and definitely insulting to our police as depicted and narrated."

In response, plaintiffs brought this action against the City, alleging that it violated their First Amendment free speech rights by having the Herisse painting removed from the I See You, Too

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installation.^[2] The City filed a motion for summary judgment, arguing that plaintiffs' claim did not implicate the First Amendment under the government speech doctrine. The district court agreed, finding that three factors used to identify government speech-control, history, and endorsement- weighed in favor of the City.

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo and "may affirm based on any ground supported by the record." Fuqua v. Turner, 996 F.3d 1140, 1149, 1156 (11th Cir. 2021). Summary judgment is appropriate where there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

III. THE GOVERNMENT SPEECH DOCTRINE

"[T]he Government's own speech . . . is exempt from First Amendment scrutiny." Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 553 (2005). Thus, when the government speaks, it is free to choose what to say and what not to say. Walker, 576 U.S. at 207; see also Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995) ("[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes."). "This freedom includes choosing not to speak and

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speaking through the removal of speech that the government disapproves." Mech v. Sch. Bd., 806 F.3d 1070, 1074 (11th Cir. 2015) (cleaned up). The government "may exercise this same freedom . . . when it receives assistance from private sources for the purpose of delivering a government-controlled message." Summum, 555 U.S. at 468. "The fact that private parties take part in the design and propagation of a message does not extinguish its governmental nature." Mech, 806 F.3d at 1078 (cleaned up).

In deciding whether expression is government speech or private speech, we may consider several factors. See Summum, 555 U.S. at 470-72; Walker, 576 U.S. at 209-213. For example, we may ask: (1) whether the government maintains control over the speech; (2) whether the type of speech has traditionally communicated government messages; and (3) whether the public would reasonably believe that the government has endorsed the speech. See, e.g., Leake v. Drinkard, 14 F.4th 1242, 1248 (11th Cir. 2021), cert. denied, 142 S.Ct. 1443 (2022). But "we lack a 'precise test,'" and "[t]hese factors are neither individually nor jointly necessary for speech to constitute government speech." Id.; see also Mech, 806 F.3d at 1075 (stating that these factors are not "exhaustive" and will not "be relevant in every case"). "Our review is not mechanical; it is driven by a case's context rather than the rote application of rigid factors." Shurtleff v. City of Boston, 596 U.S. ___, 142 S.Ct. 1583, 1589 (2022).

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IV. THE CITY ENGAGED IN GOVERNMENT SPEECH

Considering the totality of the circumstances here, we agree with the district court and hold there is no genuine dispute of material fact that the City was speaking when it selected some artwork, but not others, to display at ReFrame. We reject plaintiffs' arguments that the district court misinterpreted the scope of the control and history factors and that the City's actions were insufficient to show its endorsement of ReFrame's message.

A. Control

The City controlled the I See You, Too installation and the Herisse painting because it contracted to commission and fund the artists' work; to control its exhibition, including by subjecting the art to the City Manager's approval; and to provide the space in which the exhibition was housed. See Gundy v. City of Jacksonville Fla., 50 F.4th 60, 79 (11th Cir. 2022), cert. denied. 143 S.Ct. 790 (2023) (holding the City Council's invocation was government speech where the City Council organized the invocation, provided the venue for the invocation, and selected the speaker).

Moreover, the Agreements provided that the City owned the artwork produced for ReFrame, which includes the Herisse painting. After the City "took ownership" of the artwork pursuant to the Agreements, "[a]ll rights previously possessed by the [production companies were] relinquished." See Summum, 555 U.S. at 473-74. Having bought the artwork, the City's...