Dayton v. City of Marco Island

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

REGINA L. DAYTON and RAY

SEWARD,

Plaintiffs,

v. Case No: 2:20-cv-307-SPC-MRM

ERIK BRECHNITZ,

Defendant.

/

OPINION AND ORDER1

Before the Court are Plaintiffs Regina Dayton and Ray Seward’s Motion

for Summary Judgment (Doc. 43) and Defendant Erik Brechnitz’s Motion for

Summary Judgment (Doc. 52). The parties responded and replied. (Docs. 48;

51; 53; 54).

This is a case about the First Amendment, anonymous fake news, and

small-town politics. But it turns out less eventful than that made-for-Netflix-

binging headline. At bottom, the parties dispute whether qualified immunity

applies. Because it does, Brechnitz is entitled to judgment. So the Court

grants Brechnitz’s Motion and denies Plaintiffs’ Motion.

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using

hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties

or the services or products they provide, nor does it have any agreements with them. The

Court is also not responsible for a hyperlink’s availability and functionality, and a failed

hyperlink does not affect this Order.

BACKGROUND

Plaintiffs went to the City of Marco Island’s public City Council meeting.

On the agenda was a segment called “Citizens’ Comments.” During that time,

the public can speak “on any subject matter not scheduled on the agenda.”

(Doc. 9 at 15). After waiting in line, Plaintiffs each went to the podium to make

statements about a City councilor (the “Councilor”).

At the height of an election, anonymous individuals published a website

(the “Site”). That site attacked local politicians, officials, and residents

(including Seward). The Councilor owned the site. But when questioned about

his connection to it during a Council meeting, the Councilor denied providing

content. Residents later discovered the Councilor was responsible for all the

site’s content. The information came out as part of a state investigation, which

was prompted by a complaint Dayton filed. In general, Brechnitz knew Dayton

lodged a complaint, and the state agency dismissed it.

When Dayton spoke about the Councilor by name, Brechnitz interrupted

to tell her not to personally attack Councilmembers. Dayton clarified she was

not attacking anyone and Brechnitz let her continue. Again, however,

Brechnitz interrupted to limit Dayton from personally attacking the Councilor.

There was some back and forth about Dayton’s intent. Afterward, Dayton

continued speaking and sat down. While Dayton was never asked to stop

speaking, she contends the interruptions stopped her from reading an entire

prepared statement.

Later, Seward approached the podium. He explained a Councilmember

personally attacked and slandered him. So Seward asked for Brechnitz’s

permission to confront the Councilmember. The two went back and forth about

whether Seward could do so during Citizens’ Comments. Ultimately, Seward

said he would just sue the Councilmember and sat down.

Plaintiffs sued Brechnitz and the City. At the pleading stage, the Court

dismissed the City. Now, Brechnitz wants summary judgment.

LEGAL STANDARD

“The court shall grant summary judgment if the movant shows that

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). A fact is “material” if it

“might affect the outcome of the suit under the governing law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a material fact is in genuine

dispute “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Id.

The moving party bears the initial burden to show the lack of genuinely

disputed material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.

2008). If carried, the burden shifts onto the nonmoving party to point out a

genuine dispute. Beard v. Banks, 548 U.S. 521, 529 (2006). At this stage,

courts view all facts and draw all reasonable inferences in the light most

favorable to the nonmoving party. Rojas v. Florida, 285 F.3d 1339, 1341-42

(11th Cir. 2002).

When (as here) the parties file cross summary judgment motions, these

principles are unchanged. Bricklayers, Masons & Plasterers Int’l Union of Am.

v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975). The only

difference is that courts must take care to view the facts most favorably to the

nonmovant for each motion. Chavez v. Mercantil Commercebank, N.A., 701

F.3d 896, 899 (11th Cir. 2012).

DISCUSSION

Before jumping into the merits, it is necessary to orient the analysis. So

the Court handles several of Plaintiffs’ arguments before turning to the claim.

A. Unalleged Theories

As Brechnitz emphasizes, the only remaining claim is against him

individually. Plaintiffs do not—and never did—challenge the constitutionality

of the Rules. Yet Plaintiffs’ unalleged contentions related to prior restraint

and the unbridled discretion doctrine are misdirected efforts to do just that.

So they are improper. See GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244,

1258 n.27 (11th Cir. 2012) (“It is well-settled in this circuit that a plaintiff may

not amend the complaint through argument at the summary judgment

phase.”). All the same, those theories are beside the point.

“A prior restraint on expression exists when the government can deny

access to a forum for expression before the expression occurs.” United States

v. Frandsen, 212 F.3d 1231, 1236-37 (11th Cir. 2000). “Permitting . . . and

licensing ordinances . . . are classic examples of prior restraints.” Barrett v.

Walker Cnty. Sch. Dist., 872 F.3d 1209, 1223 (11th Cir. 2017). Constitutional

trouble arises when prior restraints grant officials unbridled (i.e.,

standardless) discretion to allow or prevent speech. Id. at 1220. “First

Amendment concerns are inherent in such a scenario because the officials are

left with unchecked power to engage in viewpoint discrimination.” Sheets v.

City of Punta Gorda, Fla., 415 F. Supp. 3d 1115, 1124 (M.D. Fla. 2019). So

would-be speakers may facially challenge the scheme. City of Lakewood v.

Plain Dealer Publ’g Co., 486 U.S. 750, 755-56 (1988).

The conduct here was Brechnitz interrupting Plaintiffs’ attempts to

speak and telling them they could not personally attack Councilmembers. This

was not a prior restraint. Nor are the Rules. Anyone can speak during

Citizens’ Comments without asking permission. Indeed, Plaintiffs spoke (or at

least had the opportunity). Because the Rules regulate speech “only after it

occurs,” Brechnitz’s conduct was not prior restraint; at most, it was a

“subsequent punishment.” See Barrett, 872 F.3d at 1223; 2 Rodney A. Smolla,

Smolla & Nimmer on Freedom of Speech, § 15:9 (2021 update). It is unclear

whether the unbridled discretion doctrine even applies outside the prior

restraint context. Barrett, 872 F.3d 1222. Likewise, Plaintiffs do not explain

holding Brechnitz individually liable for exercising prior restraint through

unbridled discretion—a theory which permits parties to facially challenge

licensing schemes. Faced with qualified immunity (described below),

Plaintiffs’ argument for liability on unsettled law fails. See also Cooper v.

Dillon, 403 F.3d 1208, 1220 (11th Cir. 2005) (holding official had qualified

immunity by acting under statute before it was declared unconstitutional).

With those theories disregarded, the Court turns to the properly

presented claim.

B. Alleged Cause of Action

Plaintiffs sue under 42 U.S.C. § 1983—alleging Brechnitz violated their

First Amendment rights. To succeed on this theory, plaintiff must show “(1)

that the defendant deprived her of a right secured by the Constitution or

federal law and (2) that such a deprivation occurred under color of state law.”

Arrington v. Cobb Cnty., 139 F.3d 865, 872 (11th Cir. 1998). But a § 1983

plaintiff usually faces a significant obstacle: qualified immunity. E.g., Douglas

Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1273 (11th Cir. 2008). Plaintiffs can’t

clear that hurdle.

Qualified immunity protects government officials (sued individually) if

“their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). For the doctrine to apply, the “official must first

prove that he was acting within the scope of his discretionary authority when

the allegedly wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194

(11th Cir. 2002) (cleaned up). Plaintiffs concede Brechnitz acted within his

discretionary authority. (Doc. 43 at 15). So “the burden shifts [for Plaintiffs]

to show that qualified immunity is not appropriate.” Ferraro, 284 F.3d at 1194.

This analysis has two parts. Id. The first question is whether the facts—

viewed most favorably to plaintiff—“show [defendant’s] conduct violated a

constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). The other

inquiry asks “whether the right was clearly established.” Id. Courts may

address either prong first. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

Because Plaintiffs cannot show a clearly established right, qualified immunity

protects Brechnitz. See Fuqua v. Turner, 996 F.3d 1140, 1149-50 (11th Cir.

2021) (explaining why it is “often” preferable to skip to the second prong).

This “inquiry turns on the objective legal reasonableness of the action,

assessed in light of the legal rules that were clearly established at the time it

was taken.” Pearson, 555 U.S. at 244 (cleaned up). The right’s contours must

be “sufficiently clear that every reasonable [official] would have understood

that what he was doing violates the law.” Fuqua, 996 F.3d at 1150. The official

must have “fair warning” her conduct is unlawful. Jones v. Fransen, 857 F.3d

843, 851 (11th Cir. 2017) (citation omitted). “Put another way, in the light of

pre-existing law the unlawfulness must be apparent.” Corbitt v. Vickers, 929

F.3d 1304, 1312 (11th Cir. 2019) (cleaned up).

Plaintiffs cannot “define clearly established law at a high level of

generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 745 (2011). Rather, “the clearly

established law must be particularized to the facts of the case.” White v. Pauly,

137 S. Ct. 548, 552 (2017) (cleaned up). That showing can be made in one of

three ways: “(1) case law with indistinguishable facts clearly establishing the

constitutional right; (2) a broad statement of principle within the Constitution,

statute, or case law that clearly establishes a constitutional right; or (3)

conduct so egregious that a constitutional right was clearly violated, even in

the total absence of case law.” Perez v. Suszczynski, 809 F.3d 1213, 1222 (11th

Cir. 2016).

It is unclear by which method Plaintiffs intend to attack qualified

immunity. They point to scant case law in their briefing (definitely nothing

binding and indistinguishable). So the first manner is out. Nor was

Brechnitz’s conduct so egregious that it obviously or clearly violated the

Constitution. See Gaines v. Wardynski, 871 F.3d 1203, 1210 (11th Cir. 2017)

(explaining these are rare situations when constitutional provision is “so clear

and the conduct so bad that case law is not needed to establish that the conduct

cannot be lawful” (citation omitted)). That leaves only the second route.

It seems Plaintiffs contend broad First Amendment principles and the

Rules permitting Citizens’ Comments “on any subject matter,” (Doc. 9 at 9)—

taken together—clearly establish their right to speak without interruption or

limit. Like Brechnitz, the Court disagrees. See King v. Pridmore, 961 F.3d

1135, 1146 (11th Cir. 2020) (A party taking this route “usually means qualified

immunity is appropriate.”); Corbitt, 929 F.3d at 1312.

For starters, it helps to know what happened. So nothing gets lost in

translation, here is the whole transcript of Dayton’s remarks:

[Brechnitz]: So this is a time for anyone who

wants to speak to the council on issues that are not on

the printed agenda, and we have some speakers lined

up. The first one is Regina Dayton.

[Dayton]: Councilors, I’m speaking before you

tonight as an act of conscience and I implore you to

believe that my comments are not meant to be in

opposition to a person, but in support for what is right,

for this is a sad set of circumstances for all of us to be

involved in. I once voted for [the Councilor] and there

is no denying his intellect or the hours he devotes to

city issues, but this is a different matter.

[Brechnitz]: If it’s not going to be about a specific

councilor—please do not name any councilors. That’s

not what this is about. This is about policy issues.

Talk to the council on things that are not on the

agenda. But if this is going to become an attack on

someone—

[Dayton]: Oh, no, sir, no, no. And I think if you

let me finish, you’ll see that’s—

[Brechnitz]: Okay. Continue.

[Dayton]: Clearly, [the Councilor] in his written

response to the [state agency] now admits that he

alone wrote the content of the [Site]—which many

Marco Islanders found repulsive—after repeatedly

denying this. The passage of time does not (inaudible)

that a lie is not a lie—

[Brechnitz]: Ms. Dayton, this sounds like an

attack to me.

[Dayton]: It’s not meant to be an attack, sir.

[Brechnitz]: Well, that’s what it sounds like. I

don’t want you to attack any personal councilor up

here. If you want to attack us on policy, on issues, have

at it. But let’s not—

[Dayton]: Well, then I think, sir—

[Brechnitz]: —make it personal.

[Dayton]: No, no, my intent is not to make it

personal.

[Brechnitz]: But you are making it personal. So

let’s not make it personal.

[Dayton]: All right. Well, then let me try to

rephrase some of this.

[Brechnitz]: Please.

[Dayton]: First, let me state that I am more than

willing to discuss with any of you here tonight or

anybody in the community the complaints that I have

filed. And I don’t want any of you to believe that they

are frivolous because they were well-intended, and

they were founded on what I consider to be policy

issues that were significant to the citizens of this

community.

And I believe that you were right, Chair

Brechnitz, when you wrote a letter expressing your

outrage of the Law Enforcement Commission that

basically exonerated a former police officer for

abhorrent behavior.

Hence, I’m not so sure that you would have

believed that some of the actions and the words of [the

Site] as a policy issue were proper or correct.

I was going to ask humbly tonight since I

realized that I have no authority over this that all of

you consider a vote of no confidence for [the Councilor]

because I wanted you to be the collective conscience of

our community because I felt that the silence on this

matter or a vote that would be ‘no’ would condone with

a deafening roar what I consider to be amoral and

inexcusable conduct because once you lose trust in

your government, it’s awfully difficult to regain it.

I felt that you had a solemn duty to reaffirm to

your voters that common decency and honorable

government still exists in [the City], and there is never

an attempt—I would not want to be personally harmed

or attacked.

I would never do that to any one of you sitting

there; to anybody else that I come into contact with. I

just believe that we are at a juncture in this

community where political discourse and public

discourse has to be returned to some sense of decency

where personal kindness and professional integrity is

demanded from our elected officials. And with that,

I’ll leave that.

[Brechnitz]: Thank you very much. The next

speaker is Ken Honecker.

(Doc. 43-2 at 15-19) (emphasis added).

From that exchange (and the video), a few points are clear. Brechnitz

did not cut Dayton’s time short. Brechnitz did not ask Dayton to stop speaking.

Brechnitz did not tell Dayton to sit down. Brechnitz did not raise his voice or

criticize Dayton. Brechnitz did not threaten Dayton with removal or arrest.

Brechnitz allowed Dayton to keep speaking about the Councilor even using his

name. And Brechnitz did not prevent Dayton from speaking in the future.

Brechnitz simply interrupted Dayton twice—telling her to stick to Council

policy matters and not personally attack Councilmembers on nonpolicy issues.

What’s more, including the two interruptions, Dayton spoke for three minutes

and fifty seconds (ten seconds shorter than her allotted time). In the end,

Dayton voluntarily sat down.

The later interaction between Brechnitz and Seward follows:

[Seward]: Good evening, Council. My name is

Ray Seward. I’ve been a resident on the Island for 12

years. I’m not here to attack anyone but I was

attacked by one individual on this Council. I was

slandered and I was lied to and I feel I should have the

right to confront that individual in public. How do you

feel, Mr. Chair?

[Brechnitz]: Not on this part of the agenda. We

don’t attack people on the Council.

[Seward]: Even if they attacked me? Slandered?

[Brechnitz]: This is not a debate, right?

[Seward]: I’m not here to debate. I’m here to

make a statement.

[Brechnitz]: No attacks on any Council

members. If you want to talk about our policies, have

at it.

[Seward]: If a Council member attacks me in a

previous meeting—

[Brechnitz]: I answered—the question’s been

answered, and the answer is—

[Seward]: And so I have no recourse as a citizen

of this Island; is that what you’re saying?

[Brechnitz]: I think you have lots of recourses

as a citizen of the United States.

[Seward]: Then maybe I should just get an

attorney and file a lawsuit.

[Brechnitz]: I’m not a lawyer and I can’t make

that kind of—give you that kind of advice. I just don’t

want this portion of the agenda to become a session—

[Seward]: This portion—

[Brechnitz]: —where we attack council people.

[Seward]: This portion of the agenda is for the

citizens of this Island—

[Brechnitz]: To talk about items, not on the

agenda.

[Seward]: Exactly. This was an article recently

put in the newspaper.

[Brechnitz]: Then if it’s a newspaper article, I

would suggest you write a letter to the editor.

[Seward]: It wasn’t the editor. The newspaper

reported on an individual Councilperson. That

Councilperson slandered me. So what are you saying?

Why am I going to write a letter to the editor? No

problem. I’ll just contact an attorney and this

individual can expect a letter from the attorney.

Thank you.

[Brechnitz]: Thank you.

(Doc. 43-2 at 38-40).

The exchange began only when Seward asked Brechnitz how he felt

about Seward’s “right to confront [the Councilor] in public.”2 (Doc. 43-2 at 38).

Even then, Brechnitz neither interrupted Seward nor asked him to stop

speaking. Brechnitz simply reiterated it was not appropriate to attack

Councilmembers during Citizens’ Comments. And Seward sat down on his

own.

On these facts and Plaintiffs’ theory, it is not difficult to conclude a

violation was not so clear that Brechnitz should have known his conduct was

unlawful. See Crocker, 995 F.3d at 1240-43. The Rules themselves don’t move

the needle much. Nor do broad statements of First Amendment jurisprudence.

Here’s why.

To start, the Rules do not support finding Plaintiffs had a clearly

established right. It is a balancing act to reconcile First Amendment rights

with a government’s interest in transacting its business at public meetings.

See White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990) (noting

2 According to Brechnitz, he did not know Seward was speaking about the Councilor. Seward

concedes that fact. (Doc. 43 at 10). Without knowing who Seward intended to discuss,

however, it is unclear how Brechnitz could have possibly engaged in viewpoint

discrimination. All the same, if Brechnitz knew, the answer would be the same.

citizens have “enormous” interest to speak, but public meetings are “a

governmental process with a governmental purpose”). The Rules bear this out.

They encourage the public to “address City Council on any subject matter not

scheduled on the agenda during the Citizens’ Comments.” (Doc. 9 at 15). But

the Rules exist “to facilitate the transaction of business and promote

cooperation and harmony.” (Doc. 9 at 9). So speakers must “[a]ct with

decorum” and limit their comments to four (or eight) minutes. (Doc. 9 at 10,

15). What’s more, the Rules make several demands of Brechnitz—as Council

chair. He must (1) “Conduct the meeting firmly and courteously while

maintaining order at all times”; and (2) “Allow persons not on Council to speak

only at designated times and may limit immaterial or redundant presentations

or requests.” (Doc. 9 at 13).

The Rules broadly allow the public to speak. Still there is some outer

limit on relevance—at least in practice—allowing Brechnitz to limit speech

(e.g., exclude immaterial topics).3 As Dayton put it, if a speaker wanted to say

something about a “turkey at the Marriott,” which the “[C]ouncil can’t control,

that would be immaterial” and excludable. (Doc. 43-3 at 9). At bottom, the

Council has a “significant governmental interest in conducting orderly,

3 Almost every witness (including Plaintiffs) agreed. (Docs. 43-2 at 24-26; 43-3 at 9-10; 43-4

at 16-17; 43-5 at 6). While one former Councilmember believed citizens could speak on

anything, that is an incorrect legal interpretation. (Doc. 43-6 at 29).

efficient meetings.” Rowe, 358 F.3d at 803. And Brechnitz had discretion to

control the meeting by excluding immaterial topics.4 So the Rules themselves

do not clearly establish Brechnitz could not interrupt Plaintiffs and limit

personal attacks on Councilmembers. It is now clear Brechnitz did not admit

to overstepping his authority and knowingly violating Plaintiffs’ rights. At the

pleading stage, those were key allegations to defeat qualified immunity. With

those out and the conduct clarified, Brechnitz did not violate a clearly

established right under the Rules.

Similarly, sweeping free speech principles do not clearly establish a right

that Brechnitz violated. 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

4 Again, Plaintiffs failed to challenge the constitutionality of the Rule granting discretion.

analysis. Cambridge Christian Sch., Inc. v. Fla. High Sch. Athletic Ass’n, 942

F.3d 1215, 1236 (11th Cir. 2019).

All parties agree the Citizens’ Comments session was a limited public

forum. (Docs. 52 at 14; 53 at 12); see also Rowe v. City of Cocoa, Fla., 358 F.3d

800, 802-03 (11th Cir. 2004); Barrett, 872 F.3d at 1225.5 This forum “exists

where a government has reserved a forum for certain groups or for the

discussion of certain topics.” Barrett, 872 F.3d at 1224 (alteration accepted)

(quoting Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct.

2239, 2250 (2015)). A limited public forum, therefore, is not “open to the public

at large for discussion of any and all topics.” Id. Rather, it “can be set up to

grant only ‘selective access’ to [the] class” for which it is reserved. Id. (quoting

Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 679-80 (1998)). In other

words, the government can discriminate based on content, so long as the

restriction is viewpoint neutral and reasonable. Id. at 1225; Kindt v. Santa

Monica Rent Control Bd., 67 F.3d 266, 271 (9th Cir. 1995) (“The fact remains

that limitations on speech at those meetings must be reasonable and viewpoint

neutral, but that is all they need to be.”).

5 Some circuits inconsistently apply designated and limited public fora tests to local

government meetings. See, e.g., Shero v. City of Grove, Okla., 510 F.3d 1196, 1202 (10th Cir.

2007). Given the parties agreement, however, it is unnecessary to address that distinction.

Brechnitz did not clearly engage in unlawful viewpoint discrimination

by simply telling Plaintiffs not to personally attack Councilmembers. Again,

the standard for qualified immunity is crucial: “when a plaintiff relies on a

general rule to show that the law is clearly established, it must apply with

obvious clarity to the circumstances” (i.e., “the specific situation in question”).

Crocker, 995 F.3d at 1240 (cleaned up); see also Mullenix v. Luna, 577 U.S. 7,

12 (2015) (“The dispositive question is whether the violative nature of

particular conduct is clearly established.” (cleaned up)). Plaintiffs have not

met that burden.

The law on decorum restrictions at government meetings is inherently

fact dependent. And caselaw shows this is not an obvious clarity case. One

circuit upheld decorum rules prohibiting personal attacks at local government

meetings. Steinburg v. Chesterfield Cnty. Plan. Comm’n, 527 F.3d 377, 387

(4th Cir. 2008). Steinburg reasoned personal attacks can be irrelevant and

derail the orderly conduct of a meeting. So “a content-neutral policy against

personal attacks is not facially unconstitutional insofar as it is adopted and

employed to serve the legitimate public interest in a limited forum of decorum

and order.” Id. Several cases reflect similar holdings. Heyman, 888 F.2d at

1332-34 (holding no First Amendment violation for limiting speaker to

announced topic); Cleveland v. City of Cocoa Beach, Fla., 221 F. App’x 875 (11th

Cir. 2007) (restricting all political messages at council meetings during election

season was constitutional); Lowery v. Jefferson Cnty. Bd. of Educ., 586 F.3d

427 (6th Cir. 2009) (upholding challenge to rule prohibiting “harassing”

speech); Eichenlaub v. Twp. of Ind., 385 F.3d 274 (3d Cir. 2004) (affirming

judgment for defendant who limited repetitive, irrelevant, and disruptive

speech); see also Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747 (5th Cir.

2010). Some cases cut the other way. Ison v. Madison Loc. Sch. Bd., 3 F.4th

887 (6th Cir. 2021) (striking down rule prohibiting “personally directed” and

“antagonistic” speech”); Norse v. City of Santa Cruz, 629 F.3d 966 (9th Cir.

2010) (en banc) (expelling citizen who silently protested councilor with Nazi

salute was triable as viewpoint discrimination).

The point of this is not to settle any constitutional questions. Quite the

opposite, this discussion highlights Plaintiffs have not met their burden to

show Brechnitz violated a clearly established right. To get qualified immunity,

local officials need not make split-second parliamentary decorum rulings with

lawyerly precision. Heyman, 888 F.2d at 1334. Instead, they must not engage

in obvious viewpoint discrimination. See Monteiro v. City of Elizabeth, 436

F.3d 397, 404 (3d Cir. 2006). What’s more, governments have “a significant

interest in maintaining civility and decorum during the public comment

sessions of its public meetings, both to ensure the efficient conduct of the

people’s business and to maximize citizen participation in the discussion.”

Steinburg, 527 F.3d at 387. The purpose of Council meetings is not to air

personal grievances with Councilmembers; it is to conduct Council business.

See Rowe, 358 F.3d at 803 (“As a limited public forum, a city council meeting

is not open for endless public commentary speech but instead is simply a

limited platform to discuss the topic at hand.”). So merely telling speakers not

to personally attack another meeting participant—then allowing them to keep

speaking about the person—is not clearly established viewpoint

discrimination.

Even if other cases might present closer calls, these facts do overcome

qualified immunity. Brechnitz merely told Plaintiffs not to speak about

matters he deemed immaterial to the Council’s business. All the same, he

allowed Plaintiffs (particularly Dayton) to speak. At bottom, an official

instructing a speaker at government meeting to stay on a relevant topic does

not violate a clearly established constitutional right. See Gaines v. Wardynski,

871 F.3d 1203, 1210 (11th Cir. 2017) (“It is particularly difficult to overcome

the qualified immunity defense in the First Amendment context.”).

Because Plaintiffs failed to meet their burden, Brechnitz has qualified

immunity from suit.

Accordingly, it is now

ORDERED:

1. Plaintiffs’ Motion for Partial Summary Judgment (Doc. 43) is

DENIED.

2. Defendant’s Motion for Summary Judgment (Doc. 52) is GRANTED.

3. Judgment is ENTERED for Defendants and against Plaintiffs.

4. The Clerk is DIRECTED to enter judgment, deny any pending

motions as moot, terminate all deadlines, and close the case.

DONE and ORDERED in Fort Myers, Florida on November 5, 2021.

, Lh platrathe 7

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record