Opinion

Biggers v. Massingill

Court
Court of Appeals for the Fifth Circuit
Filed
Feb 7, 2025
Status
Unpublished
Nature of suit
Civil Rights
Cited by
0 cases
Authority
More cited than 33.9%

“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.

2

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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

Case: 23-11023 Document: 50-1 Page: 4 Date Filed: 02/07/2025

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))).

4

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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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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