Abby Martin v. Chancellor for The Board of Regents of The University System Georgia

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12827

Non-Argument Calendar

____________________

ABBY MARTIN,

Plaintiff-Appellant,

versus

CHANCELLOR FOR THE BOARD OF REGENTS OF THE

UNIVERSITY SYSTEM OF GEORGIA,

PRESIDENT OF GEORGIA SOUTHERN UNIVERSITY,

BONNIE OVERSTREET,

Conference Services Manager for Georgia Southern University,

in her Individual Capacity,

MICHEL BLITCH,

Conference Services Coordinator for Georgia Southern University,

in her Individual Capacity,

SANDRA LENSCH,

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2 Opinion of the Court 22-12827

Conference Services Specialist for Georgia Southern University,

in her Individual Capacity,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:20-cv-00596-MHC

____________________

Before WILSON, BRANCH, and LUCK, Circuit Judges.

PER CURIAM:

Abby Martin appeals the district court’s dismissal of her 42

U.S.C. § 1983 suit in favor of Michel Blitch, Bonnie Overstreet, and

Sandra Lensch (“Defendants”) 1 on the grounds of qualified

immunity. She argues that the district court erred in dismissing her

claim that Defendants violated her First and Fourteenth

Amendment rights by refusing to contract with her to speak at an

academic conference unless she signed a clause, required by

1 Martin also brought suit against Steve Wrigley, then-Chancellor for the

Board of Regents of the University System of Georgia, and Kyle Marrero,

President of Georgia Southern University. However, these claims are not

otherwise on appeal, so any reference to “Defendants” hereafter is solely to

Blitch, Overstreet, and Lensch.

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Georgia law, promising she would not participate in a “boycott of

Israel” for the duration of the contract. Specifically, Martin argues

that, because it was clearly established that Defendants should have

known that Georgia’s law requiring the clause violated the

Constitution, they are not entitled to qualified immunity. For the

following reasons, we affirm.

I. Background

In 2016, the State of Georgia enacted O.C.G.A. § 50-5-85,

which prohibits the State from entering into certain contracts

unless the contractor certifies that it is not currently engaged in,

and agrees for the duration of the contract not to engage in, a

“boycott of Israel.” § 50-5-85(b). Under the statute, a “boycott of

Israel” is defined as “refusals to deal with, terminating business

activities with, or other actions that are intended to limit

commercial relations with Israel or companies doing business in

Israel . . . .” § 50-5-85(a)(1). Under the version of the law in effect

at the time of Martin’s failed contract, state agencies were required

to include such contractor certifications for products or services

valued at $1,000 or more. See 2016 Ga. S.B. 327; O.C.G.A. § 50-5-

85(b) (2016). However, on July 1, 2022, amendments to § 50-5-85

took effect which limits its scope to companies with five or more

employees and to contracts valued at $100,000 or more. 2 See 2022

Ga. H.B. 383; O.C.G.A. § 50-5-85(b) (2022).

2Under the statute as amended, individuals and sole proprietors, such as

Martin, are eliminated from the statute’s coverage. See O.C.G.A. § 50-5-85(b).

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4 Opinion of the Court 22-12827

Plaintiff Martin is a journalist and filmmaker who, in 2019,

sought to enter into an agreement with Georgia Southern

University to serve as a keynote speaker at an academic conference

hosted by the university, for which she was to receive $1,000 and

limited travel expenses. Defendants Overstreet, Blitch, and Lensch

were all employees of Georgia Southern at the time, and each was

involved in coordinating the conference. In their effort to secure

Martin as a keynote speaker, Defendants sent Martin a draft

agreement regarding her compensation for her review and

signature.

Because Georgia Southern is a public university, in 2019,

Defendants were required by O.C.G.A. § 50-5-85 to include in the

agreement language certifying that Martin was not engaged in, and

for the duration of the agreement would not engage in, a boycott

of Israel. Martin, who describes herself as a member of the

“Boycott, Divestment, and Sanctions movement” (“BDS

movement”), a political boycott of Israel, refused to sign the

agreement because of the inclusion of the certification language.

As a result, Georgia Southern did not enter into the contract with

her to keynote the conference, as doing so without the certification

language would have violated Georgia law. The conference was

later cancelled by its organizers. 3

Martin filed suit, asserting various First and Fourteenth

Amendment claims. Specifically, she claimed that O.C.G.A. § 50-

3 Organizers claimed the cancellation of the conference was their “statement”

in protest of O.C.G.A. § 50-5-85.

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5-85 restricts protected speech and compels speech in violation of

the First Amendment and is unconstitutionally vague in violation

of the Due Process Clause of the Fourteenth Amendment; she

sought injunctive and declaratory relief against Steve Wright, then-

Chancellor for the Board of Regents of the University System of

Georgia, and Kyle Marrero, President of Georgia Southern

University. 4 She also asserted claims under 42 U.S.C. § 1983 against

Defendants in their individual capacities, claiming she suffered a

loss of her First and Fourteenth Amendment rights by the inclusion

of § 50-5-85’s mandatory certification language; she sought

damages as relief.

In May 2021, the district court granted in part and denied in

part a motion to dismiss filed by Defendants, dismissing Martin’s

§ 1983 claim for damages against Defendants on qualified

immunity grounds. 5 Martin timely appealed.

II. Discussion

We review a district court’s decision to grant a motion to

dismiss based on qualified immunity de novo, accepting the factual

4 Martin’s injunctive and declaratory relief claims are not on appeal.

5 The district court permitted Martin’s First and Fourteenth Amendment

official-capacity claims for equitable relief to proceed. However, in July 2022,

the aforementioned amendments to § 50-5-85 took effect, which rendered the

statute inapplicable to Martin. See 2021 Ga. H.B. 383. As a result, the district

court dismissed her remaining claims for equitable relief for lack of standing

and on mootness grounds. Martin does not challenge this dismissal on appeal.

The only claims that remain on appeal are her 42 U.S.C. § 1983 claims for

damages against Defendants.

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allegations in the complaint as true and drawing all reasonable

inferences in the light most favorable to the non-moving party.

Paez v. Mulvey, 915 F.3d 1276, 1284 (11th Cir. 2019).

“In order to prevail on a civil rights action under § 1983, a

plaintiff must show that he or she was deprived of a federal right

by a person acting under color of state law.” Griffin v. City of Opa-

Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Martin argues that

Defendants’ inclusion of the anti-boycott clause, mandated by

O.C.G.A. § 50-5-85, violated her First Amendment right to free

speech and freedom of expression, as well as her Fourteenth

Amendment right to due process. On appeal, she argues that the

district court erred in finding that qualified immunity barred her

suit against Defendants.

“Qualified immunity offers complete protection for

individual public officials performing discretionary functions

‘insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.’” Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th

Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

To assert the defense of qualified immunity, Defendants must first

show that they were performing a discretionary function. Barnes v.

Zaccari, 669 F.3d 1295, 1303 (11th Cir. 2012). It is undisputed on

appeal that Defendants were acting in their discretionary authority

here.

“Once discretionary authority is established, the burden

then shifts to the plaintiff to show that qualified immunity should

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not apply.” Edwards v. Shanley, 666 F.3d 1289, 1294 (11th Cir. 2012)

(quotation omitted). A plaintiff can demonstrate that qualified

immunity does not apply by showing (1) that a defendant violated

a constitutional right and (2) that the constitutional “right at issue

was clearly established at the time” of the alleged violation. Crocker

v. Beatty, 886 F.3d 1132, 1135 (11th Cir. 2018). The Supreme Court

has made it clear that we can address either prong “of the qualified

immunity analysis . . . first in light of the circumstances in the

particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236

(2009).

As for the second prong, a constitutional right is clearly

established “only if its contours are ‘sufficiently clear that a

reasonable official would understand that what he is doing violates

that right.’” Vaughan v. Cox, 343 F.3d 1323, 1332 (11th Cir. 2003)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “When

we consider whether the law clearly established the relevant

conduct as a constitutional violation at the time that [the

government official] engaged in the challenged acts, we look for

‘fair warning’ to [the official] that the conduct at issue violated a

constitutional right.” Jones v. Fransen, 857 F.3d 843, 851 (11th Cir.

2017) (quoting Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011)

(en banc)). “‘Fair warning’ comes in the form of binding caselaw

from the Supreme Court, the Eleventh Circuit, or the highest court

of the state (Georgia, here) that ‘make[s] it obvious to all

reasonable government actors, in the defendant’s place, that what

he is doing violated a federal law.’” Id. (quoting Priester v. City of

Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000)). There are three

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ways a plaintiff can show that a government official had “fair

warning”:

First, the plaintiff[] may show that a materially similar

case has already been decided. Second, the plaintiff[]

can point to a broader, clearly established principle

that should control the novel facts of the situation.

Finally, the conduct involved in the case may so

obviously violate the constitution that prior case law

is unnecessary.

Gaines v. Wardynski, 871 F.3d 1203, 1208 (11th Cir. 2017) (quoting

Terrell v. Smith, 668 F.3d 1244, 1255–56 (11th Cir. 2012)).

As we have expressed, “[t]he second and third methods are

known as ‘obvious clarity’ cases,” and are “narrow exception[s]”

that “don’t arise often.” King v. Pridmore, 961 F.3d 1135, 1146 (11th

Cir. 2020) (quotations omitted). And, “[i]n light of the rarity of

obvious clarity cases, if a plaintiff cannot show that the law at issue

was clearly established under the first (materially similar case on

point) method, that usually means qualified immunity is

appropriate.” Id.

Here, our inquiry begins and ends with the “clearly

established” prong. 6 Martin invokes all three methods in an

6 Because we conclude that Martin is unable to show that Defendants violated

a right that was “clearly established in the specific context of the facts in this

case, we do not reach the question of whether Defendants violated [Martin’s]

constitutional rights.” Jones, 857 F.3d at 851.

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attempt to show that Defendants violated a “clearly established”

constitutional right. We address each method in turn.

A. Materially Similar

First, Martin argues that Cole v. Richardson, 405 U.S. 676

(1972), is “materially similar” and “clearly establishes” that

Defendants’ actions were unconstitutional. We disagree.

To show that a constitutional violation was clearly

established by a “materially similar” case, “[a] close factual fit

between the pre-existing case and the present one is essential.”

Cantu v. City of Dothan, Ala., 974 F.3d 1217, 1232 (11th Cir. 2020).

Importantly, “[g]eneral propositions from earlier decisions will not

do.” Id. Instead, the facts must be close enough to have “placed

the statutory or constitutional question beyond debate.” Ashcroft

v. Al-Kidd, 563 U.S. 731, 741 (2011). The key question is whether

the decision in the pre-existing case “make[s] it obvious to all

reasonable government actors” that their behavior violates federal

law. Cantu, 974 F.3d at 1232 (quotation omitted).

In Cole, the Supreme Court considered a Massachusetts law

that, as a condition of employment with the Commonwealth,

employers were required to swear that they would “uphold and

defend” the constitutions of the United States and Massachusetts

and “oppose the overthrow of the government of the United States

of America or of this Commonwealth by force, violence or by any

illegal or unconstitutional method.” 405 U.S. at 677–78. After

reviewing several of its prior “oath cases,” the Supreme Court held

that the Massachusetts oath was constitutional. Id. at 680–87.

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Specifically, the Supreme Court noted that the oath’s “use of such

general terms such as ‘uphold,’ ‘defend,’ and ‘oppose’” indicates “a

commitment not to use illegal and constitutionally unprotected

force to change the constitutional system,” but did not “impose

obligations of specific, positive action on oath takers.” Id. at 684.

Ignoring that the Supreme Court has made clear that

“clearly established law must be ‘particularized’ to the facts of the

case” and “should not be defined at a high level of generality,”

White v. Pauly, 580 U.S. 73, 79 (2017) (quotations omitted), Martin

argues that Cole established that “a state-imposed loyalty oath is

unconstitutional if it requires oath-takers to take specific actions or

refrain from constitutionally protected associational activities.”

But Cole did no such thing, and Cole is not a “close factual fit”

with Martin’s situation, in two notable respects. Cantu, 974 F.3d at

1232. First, Cole dealt with the constitutionality of a statute that

required Massachusetts employees to swear to defend the

constitution and oppose a violent overthrow of the government.

The Massachusetts statute is vastly different from a statute like

O.C.G.A. § 50-5-85, which requires certain individuals contracting

with the State of Georgia to refrain from an economic “boycott of

Israel.” Martin herself clearly recognizes this key factual

distinction—she acknowledges that, unlike the statute in Cole,

O.C.G.A. § 50-5-85 “required Martin to affirmatively certify in

writing—a specific, positive action—that she was ‘not currently

engaged in’ . . . ‘a boycott of Israel.”

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While this concession certainly undercuts her argument that

Cole is materially similar, Martin highlights the fact that O.C.G.A. §

50-5-85 imposes a “positive action” requirement on individuals

contracting with the state as a way of aligning it with what the

Supreme Court suggested might be unconstitutional in Cole. 405

U.S. at 684. But Martin glosses over the fact that the Supreme

Court’s language in Cole about a hypothetical “positive action

requirement” was not a holding and had nothing to do with the

outcome of the case. Instead, the suggestion Martin seeks to rely on

was mere dicta—and dicta cannot clearly establish law. See, e.g.,

Jones v. Cannon, 174 F.3d 1271, 1288 n.11 (1999) (“This Circuit has

held that dicta cannot clearly establish the law for qualified

immunity purposes.”); Hamilton v. Cannon, 80 F.3d 1525, 1530 (11th

Cir. 1996) (“The law cannot be established by dicta. Dicta is

particularly unhelpful in qualified immunity cases where we seek

to identify clearly established law.”); In re United States, 60 F.3d 729,

731 (11th Cir. 1996) (“Statements of dicta are not part of the law of

the case.”).

Second, the entire reason Martin seeks to rely on this dicta

is because the underlying holding in Cole is also a major factual

distinction between Cole and the present case. Namely, the

Supreme Court in Cole upheld the Massachusetts statute as

constitutional. Martin, on the other hand, is attempting to show

the exact opposite of what the Supreme Court held in Cole—that

O.C.G.A. § 50-5-85 is unconstitutional.

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Quite simply, the factual differences between Cole and

Martin’s situation are drastic. Accordingly, Martin has failed to

prove that Cole is “materially similar” enough to “make it obvious

to all reasonable government actors” in Defendants’ position that

the inclusion of the anti-boycott clause in Martin’s contract was

unconstitutional. Cantu, 974 F.3d at 1232 (quotation omitted). As

we have made clear, “[a] close factual fit between the pre-existing

case and the present one is essential.” Id. There is no close factual

fit between Cole and the facts here. As such, Martin is unable to

point to a case with materially similar facts that clearly establishes

that Defendants’ inclusion of O.C.G.A. § 50-5-85’s anti-boycott

clause in her contract was unconstitutional.

B. Broad Principle

Next, Martin argues that NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982), presents a “broader, clearly established

principle that should control the novel facts of the situation.” We

disagree.

For a broad, clearly established principle to prevent qualified

immunity from applying, “the principle must be established with

‘obvious clarity’ by the case law so that ‘every objectively

reasonable government official facing the circumstances would

know that the official’s conduct did violate federal law when the

official acted.’” Terrell, 668 F.3d at 1256 (quoting Vinyard v. Wilson,

311 F.3d 1340, 1351 (11th Cir. 2002)). In other words, a plaintiff

must show that, “in the light of pre-existing law[,] the unlawfulness

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[of the government official’s actions] must be apparent.” Id.

(quoting Anderson, 483 U.S. at 640).

Contrary to Martin’s assertion, Defendants’ inclusion of

O.C.G.A. § 50-5-85’s mandatory anti-boycott clause in her failed

contract is not a scenario where a broad principle clearly establishes

a constitutional violation. Martin asserts that Claiborne, which

involved a consumer boycott of white-owned businesses in

Mississippi, established the broad principle that the government

cannot prohibit nonviolent, politically motivated boycotts and

argues that principle “makes clear that [O.C.G.A. § 50-5-85] violates

the First Amendment.” But although the Court held that the

“nonviolent elements of petitioners’ activities are entitled to the

protection of the First Amendment,” the conduct at issue in

Claiborne involved private actors rather than government officials,

and there was no state statute involved in the case. Claiborne, 458

U.S. at 915. Notably, the Court expressly reserved the question of

whether “a narrowly tailored statute designed to prohibit certain

forms of anticompetitive conduct or certain types of secondary

pressure may restrict protected First Amendment activity.” 7 Id. at

915 n.49.

7 While we make no conclusion on the underlying constitutionality of

O.C.G.A. § 50-5-85, we also note that the Eighth Circuit recently upheld the

constitutionality of a similar anti-“boycott of Israel” statute in Arkansas. See

Ark. Times LP v. Waldrip as Tr. Of Univ. of Ark. Bd. of Trs., 37 F.4th 1386 (8th Cir.

2022), cert. denied, Ark. Times LP v. Waldrip as Tr. Of Univ. of Ark. Bd. of Trs., No.

22-379 (U.S. Feb. 21, 2023). In doing so, the Eight Circuit emphasized that the

key question in Claiborne was “whether the activities in support of the boycott,

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So, while Claiborne did find that the plaintiffs there were

engaged in a constitutionally protected activity with regard to their

boycott, it did not speak to a state’s ability to regulate anti-

competitive behavior by state employees via statutes like O.C.G.A.

§ 50-5-85. Thus, it did not craft a “broad principle” that established

with “obvious clarity” that Defendants would know that “every

objectively reasonable government official” implementing their

state’s anti-“boycott of Israel” laws, as Defendants did so here, were

violating federal law in doing so. Terrell, 668 F.3d at 1256 (quoting

Vinyard, 311 F.3d at 1351).

Accordingly, Martin is unable to point to a case that makes

“apparent” through a broad principle that Defendants’ inclusion of

§ O.C.G.A. 50-5-85’s required anti-boycott clause was

unconstitutional. Id.

both peaceful and violent, were protected.” Id. And, as the Eighth Circuit also

noted, Claiborne “stopped short of declaring that a ‘boycott’ itself—that is, the

refusal to purchase from a business—is protected by the First Amendment”;

expressly acknowledged that “‘States have broad power to regulate economic

activity’”; and held only that States cannot prohibit the “‘peaceful political

activity such as that found in the boycott in’” Claiborne. Id. at 1392 (quoting

Claiborne, 458 U.S. at 913).

While Martin argues that Waldrip was erroneously decided, she misses

the point—even if it was erroneously decided, the fact that a sister circuit

distinguished Clairborne and held that a law similar to O.C.G.A. § 50-5-85 is

constitutional reinforces the reality that Clairborne did not establish with

“obvious clarity” that the implementation of such anti-boycott clauses into

contracts is unconstitutional. See Terrell, 668 F.3d at 1256.

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C. So Obviously Unconstitutional

Finally, Martin argues that “Defendants’ conduct was so

obviously unconstitutional that no specific case is needed to

establish it.” We disagree.

Where no past case is “materially similar” and a

constitutional violation cannot be established through a “broader,

clearly established principle,” a plaintiff can still show that a

defendant is not entitled to qualified immunity by proving that the

defendant’s conduct “lies so obviously at the core of what the

[Constitution] prohibits that the unlawfulness of the conduct was

readily apparent to the [defendant], notwithstanding the lack of

fact-specific case law.” J W by and through Tammy Williams v.

Birmingham Bd. of Educ., 904 F.3d 1248, 1259–60 (11th Cir. 2018)

(quotation omitted). As we have emphasized, “[c]ases that fall

under this narrow exception are rare and don’t arise often.” King,

961 F.3d at 1146. And these situations are frequently reserved for

instances where officers exert their physical will on a plaintiff in an

“outrageous” way in an obvious violation of the Fourth

Amendment. See e.g., Fils v. City of Aventura, 647 F.3d 1272, 1291–

92 (11th Cir. 2011) (“Concrete facts are generally necessary to

provide an officer with notice of the hazy border between excessive

and acceptable force. But, where the officer’s conduct is so

outrageous that it clearly goes so far beyond these borders,

qualified immunity will not protect him even in the absence of case

law.” (quotations omitted)); Priester v. City of Riviera Beach, Fla., 208

F.3d 919, 926 (11th Cir. 2000) (“A narrow exception exists to the

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rule requiring particularized case law to establish clearly the law in

excessive force cases. When an excessive force plaintiff shows that

the official’s conduct lies so obviously at the very core of what the

Fourth Amendment prohibits that the unlawfulness of the conduct

was readily apparent to the official, notwithstanding the lack of

caselaw, the official is not entitled to the defense of qualified

immunity.” (emphasis added) (quotation omitted)).

Contrary to Martin’s assertion, Defendants’ inclusion of

O.C.G.A. § 50-5-85’s mandatory anti-boycott clause in her failed

contract is not one of those instances. In light of the fact that the

Eighth Circuit has expressly approved the constitutionality of a

similar law in Arkansas, Waldrip, 37 F.4th at 1392, there is no

reasonable argument that the inclusion of the anti-boycott clause

in Martin’s contract “lies so obviously at the core of what the

[Constitution] prohibits that the unlawfulness of the conduct was

readily apparent” to Defendants. J W by and through Tammy

Williams, 904 F.3d at 1260. While another state’s law and another

circuit’s precedent certainly cannot clearly establish law in this

circuit, the existence of this law and Waldrip demonstrates the

ongoing debate about the constitutionality of anti-boycott clauses

nationwide. Nor is this an excessive force case where an officer’s

“outrageous” behavior clearly implicates the Fourth Amendment.

Instead, Martin is upset that a contractual obligation was included

in a contract she wished to sign for an event that ultimately did not

occur. This case is not a “rare” “obvious clarity” case where a

plaintiff can show a constitutional violation was clearly established

without relying on any caselaw. See King, 961 F.3d at 1146.

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III. Conclusion

Martin has failed to show that it was clearly established that

Defendants’ inclusion of the anti-boycott clause in Martin’s

contract, in adherence of O.C.G.A. § 50-5-85, was a constitutional

violation. As such, we affirm the district court’s grant of

Defendants’ motion to dismiss on the ground of qualified

immunity. 8

AFFIRMED.

8As a last-ditch effort, Martin argues that we should reconsider and overrule

the doctrine of qualified immunity in the First Amendment context. We reject

this argument, as we are bound by Supreme Court precedent “until it is

overruled, receded from, or in some other way altered by the Supreme

Court.” United States v. Henco Holding Corp., 985 F.3d 1290, 1302 (11th Cir.

2021).