“When the State establishes a limited public forum . . . . [a speech] restriction must not discriminate against speech on the basis of viewpoint . . . .”
How later courts described this case
- “When the State establishes a limited public forum . . . . [a speech] restriction must not discriminate against speech on the basis of viewpoint . . . .”
- “When the government targets . . . particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”
- “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.”
- holding that the plaintiff’s facial challenge failed to show that a school board’s exclusion of certain discussion topics from its public meetings constituted viewpoint discrimination
Written by the judges who cited it.
The opinion
Case: 23-11023 Document: 50-1 Page: 1 Date Filed: 02/07/2025
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-11023 FILED
____________ February 7, 2025
Lyle W. Cayce
Steve Biggers, Clerk
Plaintiff—Appellant,
versus
Ron Massingill,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:23-CV-359
______________________________
Before Ho, Duncan, and Oldham, Circuit Judges.
Per Curiam: *
Steve Biggers sued Ron Massingill, the presiding officer of the Hood
County Commissioners’ Court (“HCCC”), for unconstitutionally silencing
Biggers’s speech at a public meeting. The district court dismissed the suit
based on qualified immunity. We reverse and remand.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-11023 Document: 50-1 Page: 2 Date Filed: 02/07/2025
No. 23-11023
I.
Biggers alleges that, in 2022, he began attending the HCCC’s public
meetings, where members of the public are permitted to speak at certain
times. Regarding meeting “decorum,” the HCCC’s rules provide as
follows:
It is not the intention of the Hood County Commissioners’
Court to provide a public forum for the demeaning of any
individual or group. Neither is it the intention of the Court to
allow a member (or members) of the public to insult the
honesty and/or integrity of the Court, as a body, or any
member or members of the Court, individually or collectively.
Accordingly, profane, insulting, or threatening language
directed toward the Court and/or any person in the Court’s
presence and/or racial, ethnic, or gender slurs or epithets will
not be tolerated. These Rules do not prohibit public
criticism of the Commissioners’ Court, including criticism
of any act, omission, policy, procedure, program, or
service.
In April 2022, when Biggers was speaking during the open-comment
period at a public meeting, Biggers mentioned Commissioner Ron Cotton by
name. The presiding officer, Ron Massingill, accused Biggers of “attacking
Cotton” and had Biggers removed. A different speaker who also criticized a
commissioner at the same meeting, however, was not removed.
At a December 2022 meeting, Biggers sought to confront Massingill
with a recorded conversation allegedly disparaging Biggers that was captured
on a hot mic at the previous month’s meeting. In the recording, Massingill
demeaned Biggers and his church and bragged about ejecting him from a
meeting. As Biggers took the podium to play the recording, Massingill
silenced Biggers and threated to have him removed again.
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No. 23-11023
Finally, at a January 2023 meeting, Biggers again tried to confront
Massingill with the recording. Massingill ordered a sheriff’s deputy to
remove Biggers before he could finish his remarks.
The ostensible reason for Biggers’s treatment was enforcement of the
HCCC’s decorum rule. According to Biggers, though, this was pretext. The
real reason he was prevented from speaking was Massingill’s disagreement
with his criticisms of the HCCC Commissioners.
Biggers sued Massingill for violating his First Amendment right to be
free from viewpoint discrimination in a limited public forum. But the district
court granted Massingill’s motion to dismiss based on qualified immunity.
The court reasoned it was unclear whether Biggers’s treatment violated the
First Amendment because we have upheld other meeting rules as neutral and
non-discriminatory. 1 Accordingly, the court ruled that “a reasonable
presiding officer would not recognize that removing a speaker for an alleged
decorum violation clearly runs afoul of the First or Fourteenth
Amendments.”
Biggers timely appealed. We review the dismissal de novo,
“accept[ing] all well-pleaded facts as true and constru[ing] the complaint in
the light most favorable to [Biggers].” Heinze v. Tesco Corp., 971 F.3d 475,
479 (5th Cir. 2020) (citation omitted).
II.
To overcome Massingill’s qualified immunity at the pleading stage,
Biggers had to plausibly allege that (1) Massingill violated his First
Amendment right against viewpoint discrimination, and (2) that right was
_____________________
1
See Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 760 (5th Cir. 2010) (holding
that the plaintiff’s facial challenge failed to show that a school board’s exclusion of certain
discussion topics from its public meetings constituted viewpoint discrimination).
3
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No. 23-11023
clearly established at the time of the violation. See Pearson v. Callahan, 555
U.S. 223, 232 (2009); Guerra v. Castillo, 82 F.4th 278, 285 (5th Cir. 2023);
Arnold v. Williams, 979 F.3d 262, 266 (5th Cir. 2020). Biggers argues the
district court erred in ruling he failed to meet that burden. We agree.
The district court did not address the first qualified immunity prong,
but Biggers’s allegations plainly satisfy it. The First Amendment secures
Biggers’s right to be free from viewpoint discrimination in a limited public
forum, which we have assumed is the type of forum at issue here. See, e.g.,
Heaney v. Roberts, 846 F.3d 795, 801 (5th Cir. 2017). Biggers alleged he was
silenced by Massingill—not because he was disrupting those meetings—but
because Massingill disagreed with Biggers’s views about the HCCC. That is
a textbook violation of the First Amendment. 2 See, e.g., Rosenberger v. Rector
& Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995) (“It is axiomatic that
the government may not regulate speech based on its substantive content or
the message it conveys.”); Christian Legal Soc’y Chapter of the Univ. of Cal.
v. Martinez, 561 U.S. 661, 679 (2010) (“[R]estrictions on access to a limited
public forum . . . must be . . . viewpoint neutral . . . .” (collecting cases)). 3
Relying on the second qualified immunity prong, the district court
ruled that silencing a speaker “for an alleged decorum violation” does not
_____________________
2
For his part, Massingill contends Biggers’s behavior was “far outside the
boundaries of civilized discourse and was patently disruptive.” But that claim, which is
contradicted by Biggers’s allegations, is obviously a “fact-reliant question unsuited for
resolution at the motion to dismiss stage.” United States ex rel. Vavra v. Kellogg Brown &
Root, Inc., 727 F.3d 343, 349 (5th Cir. 2013).
3
We need not address at this stage whether the HCCC’s decorum rule, which
arguably facially discriminates based on viewpoint, is itself unconstitutional. See, e.g., Matal
v. Tam, 582 U.S. 218, 244 (2017) (op. of Alito, J.) (“We have said time and again that ‘the
public expression of ideas may not be prohibited merely because the ideas are themselves
offensive to some of their hearers.’” (quoting Street v. New York, 394 U.S. 576, 592
(1969))).
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No. 23-11023
“clearly” violate the First Amendment. The court framed the inquiry too
broadly, though. The question is whether Biggers’s rights were violated “in
light of the specific context of the case, not as a broad general proposition.”
Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam) (quotation omitted).
Unlike instances where this court has upheld qualified immunity, Biggers
squarely alleged that Massingill’s invocation of the decorum rule was a mere
pretext to silence his views. If proved, that would clearly violate the First
Amendment. See Rosenberger, 515 U.S. at 829 (“When the government
targets . . . particular views taken by speakers on a subject, the violation of the
First Amendment is all the more blatant.”); Good News Club v. Milford Cent.
Sch., 533 U.S. 98, 106 (2001) (“When the State establishes a limited public
forum . . . . [a speech] restriction must not discriminate against speech on the
basis of viewpoint . . . .”).
Accordingly, the district court’s judgment is REVERSED and the
case is REMANDED for further proceedings consistent with this opinion.
5