Bandy-Freeman v. Newton ,et al.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

VERONICA BANDY-FREEMAN, )

)

Plaintiff, )

)

v. ) Case No. 2:22-cv-01148-NAD

)

WAYMAN A. NEWTON, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

For the reasons stated below, and on the record in the oral argument motion

hearing, the court GRANTS the motion for summary judgment filed by Defendant

Wayman A. Newton (Doc. 54). On Plaintiff Veronica Bandy-Freeman’s two

constitutional claims under 42 U.S.C. § 1983, Defendant Newton is entitled to

qualified immunity. Plaintiff Bandy-Freeman cannot demonstrate a genuine dispute

of material fact that Defendant Newton violated a clearly established constitutional

right. The court separately will enter final judgment.

BACKGROUND

A. Factual background

The following are the material facts, as presented and construed by Bandy-

Freeman, the nonmovant on this summary judgment motion (see Doc. 62):

On November 2, 2020, Bandy-Freeman was sworn in for her first term as an

elected City Councilwoman for the City of Tarrant, Alabama. Doc. 62 at 5.

On the same date (November 2, 2020), Newton was sworn in as the Mayor of

the City of Tarrant. Doc. 62 at 5.

Both Newton and Bandy-Freeman are black. Doc. 62 at 6. Newton expected

Bandy-Freeman and another black Councilwoman to “always vote with him on all

issues,” so that Newton “would then have three black votes against the three white

votes of the other City Council Members.” Doc. 62 at 6. One of the white

Councilmembers was John Tommy Bryant. Doc. 62 at 6.

“Several months after being elected,” Bandy-Freeman “advised Newton that

she would not vote with him on an issue as he directed.” Doc. 62 at 6.

Newton then “commenced racial, hateful, heinous, loathsome, discriminatory,

and retaliatory attacks” on Bandy-Freeman. Doc. 62 at 6. After Bandy-Freeman

“told Newton that she would no longer vote as he directed,” Newton “screamed” at

her on the telephone “on numerous occasions” and called her a “Stupid House

N[*****].” Doc. 62 at 6.

Newton called Bandy-Freeman “disparaging names or racial epithets or would

otherwise insult her if she did not vote the way Newton wanted.” Doc. 62 at 6–7.

At the June 21, 2021 meeting of the Tarrant City Council, Newton again called

Bandy-Freeman a “Stupid House N[*****].” Doc. 62 at 7.

Newton continued to call Bandy-Freeman names and racial slurs when she

would not vote the way that he wanted. Doc. 62 at 6–11.

Newton also sent text messages with images to Bandy-Freeman, “which

reflected his ongoing campaign of racial discrimination against her.” Doc. 62 at 13–

18.

Newton “regularly described” Bandy-Freeman “as illiterate,” “told City

employees” that she “was illiterate,” and sent her text messages with images

suggesting that she was illiterate. Doc. 62 at 15–17.

Newton also “encouraged City employees to be non-responsive” to Bandy-

Freeman,” and “tried to turn employees” against Bandy-Freeman. Doc. 62 at 27.

Newton contacted others to investigate Bandy-Freeman, including a City police

officer, another City employee, and Bandy-Freeman’s landlord. Doc. 62 at 28.

In addition, the City of Tarrant has a Facebook page. Doc. 62 at 20.

The City’s Facebook page states: “We are the official FB page for Tarrant,

Alabama. We want to keep folks informed about events and people affecting our

community.” Doc. 62 at 21. The Facebook page “is a place for Tarrant’s citizens

to be able to speak to matters of public interest and concern, as well as to comment

on what is going on in Tarrant and even criticize the City” and Newton himself.

Doc. 62 at 20.

At one or more points in 2022–23, Newton “banned, blocked and removed”

Bandy-Freeman from the City’s Facebook page, including by blocking a profile

named “Vote Veronica Bandy-Freeman” from posting on the City’s Facebook page.

Doc. 62 at 21–26, 29–30.1 As a result, Newton blocked Bandy-Freeman’s ability to

post on the City’s Facebook page. Doc. 62 at 29.

B. Procedural background

On September 8, 2022, Bandy-Freeman initiated this action by filing a

complaint against Defendants Newton, John Tommy Bryant, and the City of Tarrant.

Doc. 1 at 1–2. Pursuant to 42 U.S.C. § 1983, Bandy-Freeman alleged five claims

for relief: violation of the First Amendment against Newton (Count 1); violation of

the Equal Protection Clause of the Fourteenth Amendment against Newton (Count

2), Bryant (Count 3), and the City (Count 4); and invasion of privacy against Newton

(Count 5). Doc. 1 at 7–18.

In October 2022, each Defendant moved to dismiss the complaint. Doc. 9;

Doc. 10; Doc. 14; see Doc. 15. The parties fully briefed those motions to dismiss

(Doc. 23; Doc. 24; Doc. 25; Doc. 26; Doc. 27; Doc. 28; see Doc. 20), and consented

to magistrate judge jurisdiction (Doc. 19; 21 U.S.C. § 636(c); Fed. R. Civ. P. 73).

On January 31, 2023, the court held a motion hearing on the motions to

dismiss. See minute entry, entered: 01/31/2023; see Doc. 29; Doc. 30; Doc. 31

(scheduling).

1 It is undisputed that, at all relevant times, Bandy-Freeman had more than one

Facebook profile. See Doc. 55-1 at 22.

On February 2, 2023, the court granted the motions to dismiss, with leave for

Bandy-Freeman to amend. Doc. 32. The court ordered that two claims would

proceed: the First Amendment free speech claim against Newton (Count 1), and the

Fourteenth Amendment equal protection claim against Newton (Count 2). Doc. 32.

The court dismissed for failure to state a claim the equal protection claims against

Bryant (Count 3) and the City (Count 4), and the invasion of privacy claim against

Newton (Count 5). Doc. 32.

Bandy-Freeman then filed a notice stating that she would not file an amended

complaint, and would proceed on Counts 1 and 2. Doc. 33. Accordingly, the court

entered an order that the case would proceed only on Bandy-Freeman’s claims

against Newton for an alleged violation of the First Amendment right to free speech

(Count 1), and for an alleged violation of the Fourteenth Amendment Equal

Protection Clause (Count 2). Doc. 34.

Count 1 of the complaint alleges that Newton violated Bandy-Freeman’s First

Amendment free speech right by blocking her ability to “participate in Facebook

livestreams of the City Council and post on the City of Tarrant’s Facebook page.”

Doc. 1 at 7–9.

Count 2 of the complaint alleges that Newton violated Bandy-Freeman’s

Fourteenth Amendment equal protection right by “using racial slurs to address” her

after she did not “blindly support his agenda and vote consistently with his positions

and agenda because of her race.” Doc. 1 at 9–11.

After the close of discovery, Newton filed this summary judgment motion.

Doc. 54; see Doc. 55 (evidentiary materials); Doc. 56 (brief). Bandy-Freeman filed

a response in opposition with evidentiary materials. Doc. 62; Doc. 63; see Doc. 64

(deposition transcript). Bandy-Freeman also filed a motion to supplement her

evidentiary materials (Doc. 65), which the court granted (Doc. 70). Newton filed a

reply (Doc. 66), and also supplemented his evidentiary materials (Doc. 68).

The court then held an oral argument motion hearing. See minute entry,

entered: 04/16/2025; Doc. 67 (order setting hearing).

At the request of Bandy-Freeman’s counsel during the oral argument, the

court granted, but did not require, supplemental briefing “limited to the question

whether the allegedly infringed rights were clearly established on the facts of this

case—e.g., the First Amendment free speech right of a private citizen to post on the

City’s website, where the would-be poster was an elected official, and where the

record contains no evidence that the would-be poster ever had posted on the City’s

website at all, either as an elected official or as a private citizen; and the Fourteenth

Amendment right of an elected official to be free from racial coworker harassment

in the governmental context.” Doc. 69.

Both parties submitted supplemental briefs. Doc. 71 (Bandy-Freeman); Doc.

72 (Newton). And, on September 10, 2025, Bandy-Freeman again supplemented

her evidentiary materials (Doc. 73).

C. Legal background: qualified immunity

“Under the doctrine of qualified immunity, ‘government officials performing

discretionary functions generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Baker v. City of Madison, Ala.,

67 F.4th 1268, 1278 (11th Cir. 2023) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). Qualified immunity is “immunity from suit rather than a mere defense

to liability,” so a finding of qualified immunity results in judgment in favor of the

defendant. Fleming v. United States, 127 F.4th 837, 844 (11th Cir. 2025) (quoting

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

“To invoke the defense of qualified immunity, a government official must

have been acting within the scope of his discretionary authority when the allegedly

wrongful acts occurred.” Spencer v. Benison, 5 F.4th 1222, 1230 (11th Cir. 2021)

(quotation marks omitted). “After a government official establishes that he was

acting within the scope of his discretionary authority, the burden shifts to the

plaintiff” to establish that qualified immunity does not apply. Id.

To overcome qualified immunity, a plaintiff must “show[] (1) that the official

violated a statutory or constitutional right, and (2) that the right was clearly

established at the time of the challenged conduct.” Echols v. Lawton, 913 F.3d 1313,

1319 (11th Cir. 2019) (cleaned up). A plaintiff must show both elements to

overcome qualified immunity, and a court can “analyze these two elements in

whatever order is most appropriate for the case.” Baker, 67 F.4th at 1278.

A plaintiff can demonstrate that a right was clearly established in three ways:

(1) by identifying a “materially similar case” that previously has been decided;

(2) by identifying a “a broader, clearly established principle that should control the

novel facts of the situation”; or (3) by showing that the relevant conduct so obviously

violated the Constitution as to render prior case law unnecessary. Echols, 913 F.3d

at 1324 (quotation marks omitted). To overcome qualified immunity, a plaintiff does

not need a case “directly on point,” but there must be existing precedent that has

“placed the constitutional question beyond debate.” Id. (cleaned up). In determining

whether a right was clearly established, courts “look only to binding precedent at the

time of the challenged conduct—that is, the decisions of the Supreme Court, the

Eleventh Circuit, or the highest court of the state.” Id. (citation omitted).

A government official’s conduct violates a clearly established right when “the

contours of the right are sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.” Echols, 913 F.3d at 1323

(cleaned up). A court must consider the relevant conduct in “the specific context of

the case,” rather than as a “broad general proposition.” Id. at 1323–24 (cleaned up).

The question is whether “the state of law at the time” gave “fair warning to every

reasonable official that the conduct clearly violates the Constitution.” Id. at 1324

(citation and quotation marks omitted). The Supreme Court “has long ruled that

qualified immunity protects a badly behaving official unless he had fair notice that

his conduct would violate the Constitution.” Id. at 1325 (collecting cases).

Moreover, in analyzing qualified immunity, a court focuses not only on the

state of the law, but on the factual information that the defendant possessed at the

time of the alleged violation. See, e.g., Anderson v. Creighton, 483 U.S. 635, 641

(1987) (stating that the qualified immunity analysis “will often require examination

of the information possessed by” the defendant official).

LEGAL STANDARD

Summary judgment is appropriate when the movant establishes that “there is

no genuine dispute as to any material fact,” and that the movant “is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). A material fact is one that might affect the outcome of

the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).2 And a dispute

2 Accord, e.g., Celotex, 477 U.S. at 322–23 (“[T]he plain language of Rule 56(c)

mandates the entry of summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue

as to any material fact,’ since a complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other facts

immaterial.”).

about a material fact is “genuine,” if “the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Id.

To avoid summary judgment, the nonmovant must go beyond the allegations

to offer specific facts creating a genuine dispute for trial. Celotex, 477 U.S. at 324–

25. The court’s responsibility is not to “weigh the evidence and determine the truth

of the matter but to determine whether there is a genuine issue for trial.” Anderson

v. Liberty Lobby, 477 U.S. at 249. The court must construe all evidence and draw

all reasonable inferences in favor of the nonmovant. Centurion Air Cargo, Inc. v.

UPS Co., 420 F.3d 1146, 1149 (11th Cir. 2005).

Where there is no genuine dispute of material fact for trial, the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a), (c).

DISCUSSION

Newton is entitled to qualified immunity on Bandy-Freeman’s First

Amendment free speech claim and Fourteenth Amendment equal protection claim.

Construing the record evidence and all reasonable inferences in Bandy-Freeman’s

favor, Bandy-Freeman cannot demonstrate a genuine dispute of material fact that

Newton violated a clearly established constitutional right.

I. On Bandy-Freeman’s First Amendment free speech claim (Count 1),

there is no genuine dispute of material fact for trial because Newton is

entitled to qualified immunity.

Newton is entitled to qualified immunity and judgment as a matter of law on

Bandy-Freeman’s First Amendment free speech claim (Count 1). On the record

evidence, Bandy-Freeman cannot show that Newton violated a clearly established

First Amendment free speech right by blocking Bandy-Freeman’s ability to post on

the City’s Facebook page. See Doc. 62 at 31–35; Baker, 67 F.4th at 1278.

As a threshold matter, Bandy-Freeman acknowledges that the record evidence

shows that Newton was acting within the scope of his discretionary authority for

qualified immunity purposes. Doc. 62 at 35 (“Bandy-Freeman agrees that, as

Tarrant’s mayor, Newton’s authority included administration of the City’s Facebook

page.”); see Spencer, 5 F.4th at 1230. Consequently, the burden shifts to Bandy-

Freeman to show that qualified immunity does not apply. See Spencer, 5 F.4th at

1230.

This court can “analyze the[] two [qualified immunity] elements in whatever

order is most appropriate for the case.” Baker, 67 F.4th at 1278. Here, regardless

whether Newton may have violated Bandy-Freeman’s First Amendment free speech

right (whatever the scope of that right may be in the context of a city government’s

online social media page), any such right was not clearly established at the time of

the alleged conduct (particularly given the factual information that Newton

possessed at the time of the alleged conduct). See, e.g., id.; Anderson v. Creighton,

483 U.S. at 641.

The court’s analysis proceeds from the caselaw on the scope of the First

Amendment right to free speech as applied to online speech, to the First Amendment

caselaw that differentiates private speech (protected) from government speech (not

protected), to the fact that the relevant, alleged forum was the City’s Facebook page,

the fact that Bandy-Freeman was an elected City Councilwoman for the City of

Tarrant, and the fact that Bandy-Freeman never had posted on the City’s Facebook

page at all before the alleged time of being blocked—either as an elected government

official or as a private citizen.

A. The scope of the First Amendment right to free speech as applied

to online speech continues to develop

Given that Bandy-Freeman alleges Newton violated her First Amendment free

speech right by blocking Bandy-Freeman’s ability to post on the City’s Facebook

page, the court necessarily must begin its analysis of whether that right was clearly

established on the facts of this case by recognizing that the Supreme Court and

Eleventh Circuit caselaw continues to develop the scope of the First Amendment

free speech right as applied to online speech. This is not a law review article, and a

comprehensive discussion of that continuing development is not for this order.

For now, two admonitions suffice—one from Justice Thomas, and the other

from the Eleventh Circuit.

Justice Thomas wrote a concurring opinion when the Supreme Court vacated

a Second Circuit decision about First Amendment free speech on Twitter: After

“Donald Trump, then President of the United States, blocked several users from

interacting with his Twitter account,” the Second Circuit “held that the comment

threads were a ‘public forum’ and that then-President Trump violated the First

Amendment by using his control of the Twitter account to block the plaintiffs from

accessing the comment threads.” Biden v. Knight First Amend. Inst. at Columbia

Univ., 141 S. Ct. 1220, 1221 (2021) (Thomas, J., concurring) (citing Knight First

Amend. Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019)). “Because

of the change in Presidential administration,” the Supreme Court vacated the Second

Circuit’s decision. See id.

In relevant part, Justice Thomas wrote separately to “highlight[] the principal

legal difficulty that surrounds digital platforms—namely, that applying old doctrines

to new digital platforms is rarely straightforward.” Biden, 141 S. Ct. at 1221

(Thomas, J., concurring).

Recognizing that the First Amendment analysis as applied to online speech is

“rarely straightforward” (see id.), this court also is mindful of the Eleventh Circuit’s

more general instruction about qualified immunity in the First Amendment context:

It is “particularly difficult to overcome the qualified immunity defense in the First

Amendment context.” Gaines v. Wardynski, 871 F.3d 1203, 1210 (11th Cir. 2017).

Nonetheless, the Supreme Court has held that the “First Amendment’s Free

Speech Clause, applicable to the States under the Due Process Clause of the

Fourteenth Amendment” does reach online “websites, including commonplace

social media websites like Facebook and Twitter.” Packingham v. North Carolina,

582 U.S. 98, 101 (2017) (“[T]o foreclose access to social media altogether is to

prevent the user from engaging in the legitimate exercise of First Amendment

rights.”).

So, with those admonitions in mind, the court proceeds.

B. Private speech (protected) versus government speech (not

protected)

Generally speaking, the First Amendment protects private speech, but not

government speech.

In this regard, Bandy-Freeman does not assert a First Amendment claim based

any of the legislative votes that she has cast. Nor could she, as the Supreme Court

has held that casting a legislative vote does not qualify as protected speech under the

First Amendment. See Nevada Comm’n on Ethics v. Carrigan, 564 U.S. 117, 121

(2011).

Instead, Bandy-Freeman argues that Newton violated her First Amendment

free speech right by blocking her ability to post on the City’s Facebook page. Bandy-

Freeman argues that Newton’s conduct constituted viewpoint (and/or content-based

and/or speaker-based) discrimination that violated the First Amendment. Doc. 62 at

31–34.

In the “realm of private speech or expression, government regulation may not

favor one speaker over another,” and “[d]iscrimination against speech because of its

message is presumed to be unconstitutional.” Rosenberger v. Rector & Visitors of

Univ. of Virginia, 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.”

Id. Viewpoint discrimination is “an egregious form of content discrimination” under

the First Amendment, and the government generally “must abstain from regulating

speech when the specific motivating ideology or the opinion or perspective of the

speaker is the rationale for the restriction.” Id. at 829.

But the “Free Speech Clause restricts government regulation of private

speech; it does not regulate government speech.” Pleasant Grove City v. Summum,

555 U.S. 460, 467 (2009). The “Free Speech Clause of the First Amendment works

as a shield to protect private persons from encroachments by the government on their

right to speak freely,” not “as a sword to compel the government to speak for them.”

Cambridge Christian Sch., Inc. v. Florida High Sch. Athletic Assn., Inc., 115 F.4th

1266, 1288 (11th Cir. 2024), petition for cert. filed, (U.S. June 10, 2025) (No. 24-

1261) (cleaned up).

So, “[w]hen government speaks, it is not barred by the Free Speech Clause

from determining the content of what it says.” Gundy v. City of Jacksonville Fla.,

50 F.4th 60, 71 (11th Cir. 2022) (quoting Walker v. Texas Div., Sons of Confederate

Veterans, Inc., 576 U.S. 200, 207 (2015)).

Because “government statements (and government actions and programs that

take the form of speech) do not normally trigger the First Amendment rules designed

to protect the marketplace of ideas,” when the government engages in government

speech “it can freely select the views that it wants to express, including choosing not

to speak and speaking through the removal of speech that the government

disapproves.” Gundy, 50 F.4th at 71 (cleaned up); see also Pickering v. Board of

Education, 391 U.S. 563, 568 (1968) (“[T]he State has interests as an employer in

regulating the speech of its employees that differ significantly from those it

possesses in connection with regulation of the speech of the citizenry in general.”).

This “does not mean that there are no restraints on government speech. . . . A

government entity is ultimately accountable to the electorate and the political

process for its advocacy. If the citizenry objects, newly elected officials later could

espouse some different or contrary position.” Gundy, 50 F.4th at 71 (cleaned up;

citations omitted).

To state the obvious (as the Eleventh Circuit did recently in a published

opinion), “[t]he government can speak directly through its own members.”

Nussbaumer v. Secretary, Fla. Dep’t of Child. & Fams., No. 24-14082, 2025 WL

2538670, at *4 (11th Cir. Sept. 4, 2025). In other words, “[w]here the government

speaks, ‘the Free Speech Clause has no application.’” Id. (quoting Pleasant Grove

City, 555 U.S. at 467).

Otherwise, the question “[w]hether speech is government speech is inevitably

a context specific inquiry.” Cambridge Christian, 115 F.4th at 1288 (quotation

marks omitted).

There is “no precise test for determining whether speech is government or

private speech,” but the Eleventh Circuit generally considers “three factors”: “the

history of the expression at issue; the public’s likely perception as to who (the

government or a private person) is speaking; and the extent to which the government

has actively shaped or controlled the expression.” Cambridge Christian, 115 F.4th

at 1288 (cleaned up). The three factors—“history, endorsement, and control—are

not exhaustive and may not all be relevant in every case.” Id.

C. The relevant, alleged forum was the City’s Facebook page

Perhaps acknowledging that any of her speech as an elected City

Councilwoman on the City’s Facebook page would categorically be unprotected

government speech (or at least that any of her alleged speech would be subject to the

context specific inquiry of whether it constitutes government speech), Bandy-

Freeman argues that the City’s Facebook page “is a public forum,” and that Newton

violated her First Amendment free speech right to speak—as a private “citizen”—

on the City’s Facebook page. See, e.g., Doc. 62 at 29–34.

On this point, the court cannot ignore the Eleventh Circuit’s per curiam

decision from July 2023 in Taylor v. Palmer, even though it is unpublished. No. 21-

14070, 2023 WL 4399992 (11th Cir. July 7, 2023) (unpublished). Just like this case,

Taylor examined a mayor’s qualified immunity defense on summary judgment

against a First Amendment free speech claim after the mayor had blocked a specific

profile from posting on the city’s Facebook page. 2023 WL 4399992, at *1.

But in Taylor it was undisputed that the would-be poster was a private

citizen: “The mayor of Adamsville, Alabama, blocked a frequent critic from posting

comments on the city’s Facebook page for about a week in 2016.” Taylor, 2023 WL

4399992, at *1. The private-citizen critic in Taylor “was the city’s most outspoken

critic.” Id. The private-citizen critic “sued the mayor for damages, asserting the

block violated the critic’s First Amendment right to freedom of speech,” and the

mayor “moved for summary judgment based in relevant part on qualified immunity.”

Id.

After the district court had denied the mayor’s summary judgment motion

based on qualified immunity, the Eleventh Circuit reversed, concluding that it was

not clearly established that the mayor’s blocking the private-citizen critic from

posting on the city’s Facebook page violated the First Amendment. Taylor, 2023

WL 4399992, at *1.

The Eleventh Circuit addressed two of the “principles” discussed above—i.e.,

(1) the “general First Amendment principle disfavoring government viewpoint-

based restrictions on speech,” and (2) the principle that “the government’s own

speech . . . is not subject to the same constraints as the government’s restriction of

private speech.” See Taylor, 2023 WL 4399992, at *3.

According to the Eleventh Circuit, “How these two principles apply to a

government’s social-media account—for example, its Facebook page—was not

clear in December 2016 and [wa]s not clear [in July 2023].” Taylor, 2023 WL

4399992, at *3.

The Eleventh Circuit reasoned that, “[o]n one view, a government page that

allows members of the public to post comments is a limited public forum,” but, “on

another view, a government page is government speech, even when others do some

of the speaking.” Taylor, 2023 WL 4399992, at *3 (citations omitted).

The Eleventh Circuit then concluded that, “[w]hen the mayor blocked [the

private-citizen critic] in December 2016, it was not clearly established whether a

Facebook page of this kind was a limited public forum, governed by the first

principle noted above, or instead constituted government speech, governed by the

second,” and that—for qualified immunity purposes—“[w]hat matters here is not

how this issue would be resolved on the merits but only that the law was not clearly

established.” Taylor, 2023 WL 4399992, at *3.

Thus, assuming that the Eleventh Circuit were to agree in a published opinion

with the per curiam panel’s decision in the unpublished Taylor decision, even a

private citizen’s First Amendment right to be free from a mayor’s blocking the

citizen from posting on the city’s Facebook page was not clearly established as of

July 2023. Taylor, 2023 WL 4399992, at *3 (law “was not clear in December 2016

and is not clear today”).

Here (practically speaking), the law may be that any speech on the City of

Tarrant’s Facebook page, even posts from private citizens, is unprotected

government speech because “a government[’s] [Facebook] page [may be]

government speech, even when others do some of the speaking,” and because “the

government can make even viewpoint-based decisions on what to say or not to say,”

“[w]hen a government chooses to speak . . . the government may say what it wishes

and may enlist speakers of its choice,” and “[j]ust because the government enlists

speakers does not mean it must turn over the microphone to all others who wish to

speak.” Taylor, 2023 WL 4399992, at *3 (citations omitted).

The point for now is that the First Amendment free speech right—of even

private citizens—to post on the City of Tarrant’s Facebook page was not clearly

established “at the time of the challenged conduct.” See Echols, 913 F.3d at 1319

(cleaned up); Taylor, 2023 WL 4399992, at *3.

Moreover, like Taylor, both Knight and Lindke,3 two cases on which Bandy-

Freeman relies here, analyzed whether a social media page constituted a public

forum where free speech was protected under the First Amendment. But neither of

those cases could make any alleged First Amendment free speech right clearly

3 Lindke v. Freed, 601 U.S. 187 (2024).

established on the record facts here. Neither case could clearly establish that the

City of Tarrant’s Facebook page was a public forum—and not government speech

that the First Amendment did not reach—at the time of the challenged conduct. And,

unlike Bandy-Freeman’s claim here, neither case dealt with the alleged First

Amendment free speech right of an elected government official who had been

blocked from posting on the government’s own social media page.

With respect to Knight (as an initial matter), the Supreme Court vacated the

Second Circuit’s decision—the vacatur as to which Justice Thomas concurred, see

supra Part I.A. Biden, 141 S. Ct. 1220 (Thomas, J., concurring).

In its now vacated decision, the Second Circuit examined whether President

Trump had “acted in a governmental capacity or as a private citizen,” when blocking

private citizens from his Twitter profile, and whether, to the extent that President

Trump’s Twitter profile “[wa]s controlled by the government, it [wa]s government

speech”; qualified immunity was not at issue. See Knight First Amend. Inst., 928

F.3d at 234–35, 239. The record in Knight showed that, “[i]n May and June of 2017,

the President blocked each of the Individual Plaintiffs” (i.e., private citizens) from

his Twitter profile, that “each of them was blocked after posting replies in which

they criticized the President or his policies,” and that “they were blocked as a result

of their criticism.” Id. at 232.

In relevant part, the district court had reasoned that the “replies to the

President’s tweets remain[ed] the private speech of the replying user.” Knight First

Amend. Inst., 928 F.3d at 233 (citation and quotation marks omitted). The Second

Circuit ruled that “the speech in question is that of multiple individuals, not just the

President or that of the government,” reasoning in relevant part that “the President’s

tweets can accurately be described as government speech,” but that “the retweets,

replies, and likes of other users in response to his tweets are not government speech

under any formulation.” Id. at 239.

Whatever the vacated decision in Knight may suggest about when a

government official’s social media page may constitute a public forum, that decision

still could not make any First Amendment free speech right clearly established on

the facts of this case. Unlike Bandy-Freeman here, none of the “Individual

Plaintiffs” whom President Trump blocked from his Twitter profile was an elected

government official.

In this case, because Bandy-Freeman was an elected City Councilwoman, the

parties dispute whether any conceivable speech from Bandy-Freeman on the City’s

Facebook page would have—or even could have—constituted protected private

speech, as opposed to unprotected government speech. See, e.g., Knight First

Amend. Inst., 928 F.3d at 239 (“the President’s tweets can accurately be described

as government speech”); see also Doc. 56 at 15–16.

Likewise, in Lindke, qualified immunity was not at issue. The Supreme

Court’s Lindke decision dealt with the First Amendment free speech right in the

context of a city manager’s Facebook page. 601 U.S. at 191–92. After a private

citizen criticized the city manager on the city manager’s Facebook page, the city

manager “deleted [the private citizen’s] comments; ultimately, he blocked him.

Once blocked, [the private citizen] could see [the city manager’s] posts but could no

longer comment.” Id. at 193. The private citizen sued the city manager under 42

U.S.C. § 1983, alleging that the city manager had violated his First Amendment free

speech right. Id. According to private-citizen plaintiff, “he had the right to comment

on [the city manager’s] Facebook page, which he characterized as a public forum,”

and the city manager “had engaged in impermissible viewpoint discrimination by

deleting unfavorable comments and blocking the people who made them.” Id.

The Supreme Court reasoned that, “[b]ecause only state action can give rise

to liability under § 1983,” the private citizen’s claim depended on whether the city

manager “acted in a ‘private’ or ‘public’ capacity” in administering the city

manager’s Facebook page. Lindke, 601 U.S. at 193 (citation omitted). The Supreme

Court reasoned further that, “[w]hen a government official posts about job-related

topics on social media, it can be difficult to tell whether the speech is official or

private.” Id. at 191. The Supreme Court then held that for purposes of state action

under § 1983 “such speech is attributable to the State only if the official (1) possessed

actual authority to speak on the State’s behalf, and (2) purported to exercise that

authority when he spoke on social media.” Id.

Again, whatever Lindke may suggest about when a government official’s

social media page may constitute a public forum (or, more fundamentally, state

action for § 1983 purposes), the Supreme Court’s decision still could not make any

First Amendment free speech right clearly established on the facts of this case.

Unlike Bandy-Freeman, the private-citizen plaintiff in Lindke was not an elected

government official.

D. Bandy-Freeman was an elected City Councilwoman for the City of

Tarrant, and never had posted on the City’s Facebook page at all—

either as an elected government official or as a private citizen

As noted above, Bandy-Freeman argues that Newton violated her First

Amendment free speech right to speak as a private citizen on the City’s Facebook

page. But it is undisputed that Bandy-Freeman was an elected City Councilwoman

for the City of Tarrant, and never had posted on the City’s Facebook page at all—

either as an elected government official or as a private citizen.

The record includes no posts that Bandy-Freeman made on the City’s

Facebook page.

That may not be dispositive, but there is no evidence of any actual speech for

the court (or a jury) to assess as conceivably private speech or government speech

according to the Eleventh Circuit’s “context specific inquiry,” which typically

involves at least “three factors” (“history, endorsement, and control”). See

Cambridge Christian, 115 F.4th at 1288 (cleaned up).

More importantly, there was no post for Newton conceivably to have assessed

as private speech or government speech at the time of the challenged conduct. See

Echols, 913 F.3d at 1319.

Instead, Bandy-Freeman relies on her deposition testimony as to the topics

about which she hypothetically would have posted—as a private citizen—had she

not been blocked from doing so on the City’s Facebook page. Doc. 55-1 at 27–29.

For example, according to Bandy-Freeman, she would have posted about the

following: “[I]f I had the right to write on Facebook like I wanted to . . . not as a

council person but just as a citizen, my concerns would be like why is the Mayor

getting the city sued so much? Why so many people that has been there getting

fired? Why is it that we can’t -- about the ARPA money and the CARES money,

what is it going to be used for? I would like to know just as a citizen about ways to

transparency and the lack of. I would talk about the trash. I go around and video

my district. It looks like a third world country. I would talk about good government.

I would talk about fair treatment for not just a certain amount -- certain group of

people to come in and be able to get businesses and everybody else couldn’t. I would

talk about . . . education . . . .” Doc. 55-1 at 27.

As noted above (according to the Eleventh Circuit), “[t]he government can

speak directly through its own members.” Nussbaumer, 2025 WL 2538670, at *4

(published). Practically speaking, all of the topics about which Bandy-Freeman

hypothetically would have posted on the City’s Facebook page sound like stuff about

which an elected City Councilwoman would have been speaking.

Indeed, Bandy-Freeman’s hypothetical post still would have been speech

from an elected City Councilwoman, one of the City government’s “own members”

(Nussbaumer, 2025 WL 2538670, at *4), on the City’s own Facebook page—and “a

government page [may be] government speech, even when others do some of the

speaking” (Taylor, 2023 WL 4399992, at *3).

As a result, even this hypothetical speech may have constituted unprotected

government speech anyway.

Regardless (again), the more important point for now is that Newton could

not have known about what Bandy-Freeman hypothetically might have posted at the

time of the challenged conduct. See, e.g., Anderson v. Creighton, 483 U.S. at 641

(qualified immunity analysis “will often require examination of the information

possessed by” the defendant official). Bandy-Freeman never had posted on the

City’s Facebook page at all. And Newton could not have assessed this hypothetical

speech as conceivably private speech or government speech according to the

Eleventh Circuit’s “context specific inquiry,” which typically involves at least “three

factors” (“history, endorsement, and control”). See Cambridge Christian, 115 F.4th

at 1288 (cleaned up).

Stated otherwise, on the record evidence and in “the specific context of the

case” (and given the uncertainty of the First Amendment caselaw at the time of the

challenged conduct and today), Bandy-Freeman cannot show that “every reasonable

official would have understood” that blocking her from posting on the City’s

Facebook page would violate her First Amendment free speech right to post as a

private citizen—where Bandy-Freeman was an elected City Councilwoman, who

never before had posted on the City’s page. See Echols, 913 F.3d at 1323–24

(cleaned up).

For qualified immunity purposes, Newton could not have “had fair notice that

his conduct would violate the Constitution” (Echols, 913 F.3d at 1325 (collecting

cases)), because there is no “materially similar case” and no “broader, clearly

established principle that should control the novel facts of the situation,” and because

Bandy-Freeman cannot otherwise show that Newton so obviously violated the

Constitution as to render prior case law unnecessary (id. at 1324 (quotation marks

omitted)). Thus, on the record evidence, Bandy-Freeman cannot show that Newton

violated a clearly established First Amendment free speech right by blocking Bandy-

Freeman’s ability to post on the City’s Facebook page.

II. On Bandy-Freeman’s Fourteenth Amendment equal protection claim

(Count 2), there is no genuine dispute of material fact for trial because

Newton is entitled to qualified immunity.

Newton is entitled to qualified immunity and judgment as a matter of law on

Bandy-Freeman’s Fourteenth Amendment equal protection claim (Count 2). On the

record evidence, Bandy-Freeman cannot show that Newton violated a clearly

established Fourteenth Amendment equal protection right by using racial slurs and

otherwise harassing her. See Doc. 62 at 39–43; Baker, 67 F.4th at 1278.

Bandy-Freeman and Newton both were elected government officials. This

was not an employment situation, and Newton was not Bandy-Freeman’s supervisor.

So far as this court can tell—in the more than 150 years since the Fourteenth

Amendment was adopted in 1868—no court ever has recognized a Fourteenth

Amendment equal protection right of an elected official to be free from racial

harassment (from another elected official) in the governmental context. Even if this

court were inclined to be the first to recognize any such right (and to do so on the

record facts here), that right still necessarily could not have been clearly established

in this “specific context” at the “time of the challenged conduct.” See Echols, 913

F.3d at 1319, 1323–24 (cleaned up).

Bandy-Freeman argues that—after she did not vote the way that Newton

wanted—Newton discriminated against her in violation of the Equal Protection

Clause of the Fourteenth Amendment by subjecting her to racial harassment,

including by calling her a “Stupid House N[*****]” and sending her text messages

with racially discriminatory images. Doc. 62 at 39–40; see Doc. 1 at 9–11. Bandy-

Freeman argues that Newton “used racial epithets to identify her, sent her racially

charged text messages, attacked her intelligence, humiliated her, and verbally

attacked her.” Doc. 62 at 42.

Unlike her First Amendment claim, Bandy-Freeman appears to dispute that

the record evidence shows that Newton was acting within the scope of his

discretionary authority for qualified immunity purposes when he allegedly

discriminated against her. Doc. 62 at 42. To show that a defendant government

official was acting within the scope of his discretionary authority such that qualified

immunity may apply, the defendant official must show that he acted “(1) in

accordance with [his] job-related duties, and (2) within the scope of [his] authority.”

Huggins v. School Dist. of Manatee Cty., No. 22-13325, 2025 WL 2374371, at *4

(11th Cir. Aug. 15, 2025) (published). “When considering this showing, the district

court must look to the general nature of the defendant’s action, temporarily

disregarding the alleged illegality of that act.” Id. (cleaned up).

In this regard, Bandy-Freeman does “agree[] that Newton was acting as

Tarrant’s mayor when he used racial epithets to identify her, sent her racially charged

text messages, attacked her intelligence, humiliated her, and verbally attacked her.”

Doc. 62 at 42. However, Bandy-Freeman “does not agree” that Newton “had the

authority as mayor to use racial epithets to identify her, send her racially charged

text messages, attack her intelligence, humiliate her, and/or verbally attack her.”

Doc. 62 at 42.

But, “look[ing] to the general nature” of Newton’s conduct, and “temporarily

disregarding the alleged illegality” of that conduct (see Huggins, 2025 WL 2374371,

at *4), the undisputed evidence is that Newton (as the elected Mayor) was

communicating with and acting against Bandy-Freeman (as an elected City

Councilwoman) in response to—or retaliation for—Bandy-Freeman’s not voting the

way that Newton wanted. Accordingly, on the record evidence, Newton was acting

within the scope of his discretionary authority for qualified immunity purposes,4 and

the burden shifts to Bandy-Freeman to show that qualified immunity does not apply.

See Spencer, 5 F.4th at 1230.

Under the Equal Protection Clause of the Fourteenth Amendment, “No State

shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, § 1. With respect to racially discriminatory harassment,

“[c]ourts have held that offensive or derogatory statements, even if racially tinged

or racially motivated, do not violate equal protection guarantees unless they are so

pervasive as to amount to racial harassment or are accompanied by some other

conduct that deprives a person of the equal protection of the laws.” Watson v.

Division of Child Support Servs., 560 F. App’x 911, 913 (11th Cir. 2014) (affirming

4 Even assuming that Newton was acting outside the scope of his discretionary

authority, and that qualified immunity consequently does not apply, there still is no

caselaw recognizing a Fourteenth Amendment equal protection right of an elected

official to be free from racial harassment—from another elected official—in the

governmental context.

dismissal of complaint for failure to state a claim where pro se plaintiff alleged equal

protection violation against state division of child support services and one of its

case agents based on the case agent’s alleged racially discriminatory statements).

Furthermore, there is precedent for a § 1983 equal protection claim based on

an alleged hostile work environment in public employment. See, e.g., Cross v. State

of Ala., State Dep’t of Mental Health & Mental Retardation, 49 F.3d 1490, 1507

(11th Cir. 1995) (recognizing “a constitutional right to be free from unlawful sex

discrimination and sexual harassment in public employment”). In Cross—a “hostile

environment sexual harassment lawsuit,” 49 F.3d at 1494—the plaintiffs alleged a

violation of their equal protection rights pursuant to § 1983, “based upon [their

supervisor’s] sexual harassment,” id. at 1507. The plaintiffs were “past or present

female employees” at a state mental health facility, and the relevant individual

defendant was the director of the facility. Id. at 1494.

But (again), even assuming that the Equal Protection Clause conceivably

could include a right of an elected official to be free from racial harassment (from

another elected official) in the governmental context, that right still could not have

been clearly established at the time of the challenged conduct.

Bandy-Freeman cites and quotes from McMillan v. DeKalb County, Georgia,

211 F. App’x 821 (11th Cir. 2006), for the proposition that “the ‘right to be free from

racial discrimination in the public workplace was a clearly established constitutional

right of which a reasonable official would have known.’” Doc. 62 at 42 (quoting

McMillan, 211 F. App’x at 824).

Nevertheless, assuming that right as a “broad general proposition” (Echols,

913 F.3d at 1323–24 (cleaned up)), the individual defendant in McMillan was the

plaintiff’s supervisor in the public employment context. 211 F. App’x at 822. In

McMillan, the individual defendant was the “Director of the Parks & Recreations

Department [PRD],” and the plaintiff “was a 30-year veteran employee of the PRD

when she was terminated” by the individual defendant. Id. The plaintiff alleged that

the individual defendant “terminated her on the basis of her race, in violation of Title

VII and § 1983.” Id.

Here, there is no evidence that Newton was Bandy-Freeman’s supervisor. The

only evidence is that Newton and Bandy-Freeman were apparently coequal elected

government officials, and apparently (eventually) political rivals. According to

Bandy-Freeman, that is why Newton expected Bandy-Freeman and another black

Councilwoman to “always vote with him on all issues”—so that Newton “would

then have three black votes against the three white votes of the other City Council

Members,” Doc. 62 at 6—and that is why Newton reacted with discriminatory,

harassing conduct when Bandy-Freeman did not vote the way that Newton wanted.

Bandy-Freeman cites other cases like McMillan, in which employee plaintiffs

alleged equal protection claims against their supervisors based on race

discrimination in the public employment context. See Doc. 62 at 42–43; Brown v.

City of Fort Lauderdale, 923 F.2d 1474, 1482 (11th Cir. 1991) (“[The plaintiff’s]

right to be free from a racially motivated discharge unquestionably was clearly

established before his termination.”); Ham v. City of Atlanta, No. 1:07-CV-309-

BBM-RGV, 2009 WL 10668310, at *14 (N.D. Ga. July 22, 2009) (“The Eleventh

Circuit has recognized a clearly established right to be free from race discrimination

in public employment. It is beyond doubt that there is a federal equal protection

right to be free from racial discrimination, that this right is clearly established, and

that it extends into the employment context.” (collecting cases; cleaned up)).

In Brown, the pro se plaintiff was a city employee, who sued the police chief

and the city manager under 42 U.S.C. §§ 1981 and 1983, alleging that “he was fired

from his job as a police officer for the [city] because he is black.” 923 F.2d at 1475.

The defendant police chief allegedly had notified the plaintiff “by letter that he was

being dismissed,” and the defendant city manager, “the official who technically had

the authority to hire and fire all city employees,” had “confirmed [the plaintiff’s]

dismissal.” Id. at 1476. And, in Ham, the plaintiffs were city employees, who filed

“claims of race discrimination arising from their employment as firefighters,”

alleging that the former fire chief and the former chief operating officer for the city

“implemented an unlawful racial balancing program governing the promotions of

personnel to [the fire department’s] discretionary positions,” and that the plaintiffs

“ha[d] all been passed over for promotion because of their race in favor of less

qualified, less experienced African-American candidates.” 2009 WL 10668310, at

*1.

Again, even if elected government officials are considered employees in the

public employment context, there still is no evidence that Newton was Bandy-

Freeman’s supervisor.

In response to counsel’s request, the court permitted supplemental briefing on

the question whether “the Fourteenth Amendment right of an elected official to be

free from racial coworker harassment in the governmental context” was “clearly

established on the facts of this case.” Doc. 69. The supplemental brief (Doc. 71)

cites another case in which the employee plaintiffs alleged an equal protection claim

against their supervisor based on race discrimination in the public employment

context,5 cases that did not involve public employment or did not involve an equal

protection claim,6 federal appellate cases from outside the Eleventh Circuit, a district

5 Bryant v. Jones, 575 F.3d 1281, 1288–89 (11th Cir. 2009) (public employees

alleged an equal protection claim against the county’s chief executive officer and

three subordinates who assisted him based on an alleged racially discriminatory

hostile work environment where the county “embarked on a wholesale plan to

replace its white county managers with African Americans,” the defendant chief

executive officer “devised the plan and monitored its execution,” and the defendant

chief executive officer and “his administration implemented an aggressive

restructuring program of the county’s government”).

6 Cooler v. Layne Christensen Co., 710 F. App’x 842 (11th Cir. 2017) (private

employee sued employer, alleging retaliation, race discrimination, and hostile work

environment under 42 U.S.C § 1981 and Title VII); Smelter v. Southern Home Care

court case about discrimination in education (Green v. Jacksonville State Univ., No.

1:16-CV-1047-VEH, 2017 WL 2443491 (N.D. Ala. June 6, 2017)), and the Supreme

Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of

Harvard College, 600 U.S. 181, 190–91 (2023) (“In these cases we consider whether

the admissions systems used by Harvard College and the University of North

Carolina, two of the oldest institutions of higher learning in the United States, are

lawful under the Equal Protection Clause of the Fourteenth Amendment.”).

While Bandy-Freeman may not need a case “directly on point,” there still

must be existing precedent that has “placed the constitutional question beyond

debate.” Echols, 913 F.3d at 1324 (cleaned up).

There is none.

In “the specific context of the case” (rather than as a “broad general

proposition”), Bandy-Freeman cannot show that “every reasonable official would

have understood” that using racial slurs and otherwise harassing her would violate

her Fourteenth Amendment equal protection right—where both Bandy-Freeman and

Newton were elected government officials, and where Newton was not Bandy-

Servs. Inc., 904 F.3d 1276 (11th Cir. 2018) (private employee sued employer,

alleging discriminatory termination, hostile work environment, and retaliation under

Title VII and 42 U.S.C. § 1981); Slack v. Stream, 988 So. 2d 516, 517 (Ala. 2008)

(claims for defamation, invasion of privacy, and intentional interference with a

business contract); Belcher v. Jefferson Cty. Bd. of Educ., 474 So. 2d 1063 (Ala.

1985).

Freeman’s supervisor in an employment situation. See Echols, 913 F.3d at 1323–24

(cleaned up).

Newton again could not have “had fair notice that his conduct would violate

the Constitution” (Echols, 913 F.3d at 1325 (collecting cases)), because there is no

“materially similar case” and no “broader, clearly established principle that should

control the novel facts of the situation,” and because Bandy-Freeman cannot

otherwise show that Newton so obviously violated the Constitution as to render prior

case law unnecessary7 (id. at 1324 (quotation marks omitted)). Thus, on the record

evidence, Bandy-Freeman cannot show that Newton violated a clearly established

Fourteenth Amendment equal protection right by using racial slurs and otherwise

harassing her.

CONCLUSION

For the reasons stated above, Newton’s summary judgment motion (Doc. 54)

is GRANTED. Bandy-Freeman’s claims are DISMISSED WITH PREJUDICE.

7 See, e.g., Hope v. Pelzer, 536 U.S. 730, 738, 741 (2002) (“As the facts are alleged

by [the plaintiff], the Eighth Amendment violation is obvious. . . . [T]he salient

question . . . is whether the state of the law [at the time of the challenged conduct]

gave [the defendants] fair warning that their alleged treatment of [the plaintiff] was

unconstitutional.”).

Separately, the court will enter final judgment.

DONE and ORDERED this September 24, 2025.

NICHOLAS A. DANELLA

UNITED STATES MAGISTRATE JUDGE

37