Tammi Taylor v. Pam Palmer

USCA11 Case: 21-14070 Document: 44-1 Date Filed: 07/07/2023 Page: 1 of 11

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14070

____________________

TAMMI TAYLOR,

Plaintiff-Appellee,

versus

PAM PALMER,

individually and in her official capacity as

Mayor of the City of Adamsville,

Defendant-Appellant,

THE CITY OF ADAMSVILLE, ALABAMA, THE,

Defendant.

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2 Opinion of the Court 21-14070

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:18-cv-01608-MHH

____________________

Before BRANCH and GRANT, Circuit Judges, and HINKLE,* District

Judge

PER CURIAM:

The mayor of Adamsville, Alabama blocked a frequent critic

from posting comments on the city’s Facebook page for about a

week in 2016. The critic sued the mayor for damages, asserting the

block violated the critic’s First Amendment right to freedom of

speech. The mayor moved for summary judgment based in rele-

vant part on qualified immunity. The district court concluded that

the mayor was not entitled to qualified immunity and denied the

motion as to the claims against the mayor in her individual capac-

ity. This is the mayor’s appeal of that ruling.1 The controlling

* Honorable Robert L. Hinkle, United States District Judge for the Northern

District of Florida, sitting by designation.

1 The mayor also argues that she is “entitled to qualified immunity and sum-

mary judgment as to . . . [the critic’s] claims against her in her individual ca-

pacity for . . . First Amendment retaliation.” To the extent the critic’s retalia-

tion claim is based on a state court lawsuit filed against her, the district court

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21-14070 Opinion of the Court 3

question is whether it was clearly established at that time that

blocking the critic violated the First Amendment. We hold it was

not.

I

A district court’s denial of a summary-judgment motion

based on qualified immunity is immediately appealable when, as

here, it turns on an issue of law. See, e.g., Perez v. Suszczynski, 809

F.3d 1213, 1216–17 (11th Cir. 2016); Koch v. Rugg, 221 F.3d 1283,

1294 (11th Cir. 2000). We review de novo the denial of such a mo-

tion. See, e.g., Carter v. Butts Cnty., 821 F.3d 1310, 1318 (11th Cir.

2016). Like the district court, we must resolve all genuine factual

disputes and draw all reasonable inferences in the light most favor-

able to the nonmoving party. Id. We set out the facts that way.

II

Pam Palmer became the mayor of Adamsville in 2008.

Tammi Taylor became an outspoken critic of both the mayor and

the city in 2009. The record would support a finding that through

the ensuing years, Ms. Taylor was the city’s most outspoken critic.

One place where Ms. Taylor voiced her criticism was on the

city’s Facebook page. The city used the page to provide infor-

mation to members of the public. Members of the public could, in

has already granted the mayor’s motion. And to the extent the critic’s retalia-

tion claim is based on the mayor blocking her from the city’s Facebook page,

we conclude that the mayor is entitled to qualified immunity for the reasons

explained in this opinion.

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4 Opinion of the Court 21-14070

turn, post comments on the page. Any such comments were view-

able by those accessing the page, including other members of the

public.

The city had a social-media policy that applied to the Face-

book page. In the policy, the city asserted an interest in deciding

what could be posted on the page. The policy said the city would

remove posts that were random, unintelligible, profane, obscene,

violent, pornographic, discriminatory, or defamatory, as well as

threats, comments in support of or in opposition to a political cam-

paign, and other content that violated the law. The policy said the

city reserved the right to deny access to any individual who vio-

lated the policy.

The mayor was an administrator—perhaps the primary ad-

ministrator—of the page. In December 2016, the mayor blocked

Ms. Taylor from posting on the page. This record would support a

finding that the mayor took this action because she disagreed with

the viewpoints expressed in Ms. Taylor’s posts. After imposing the

block, the mayor called an attorney at the Alabama League of Mu-

nicipalities, who told the mayor she should remove the block. The

mayor removed the block roughly a week after it was put in place.

Ms. Taylor says she still cannot post on the city’s page from

the account that was blocked. But the record suggests that the

problem is not the result of any continuing effort by the mayor to

block Ms. Taylor.

III

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21-14070 Opinion of the Court 5

Ms. Taylor filed this lawsuit against the city and the mayor

in October 2018. Ms. Taylor complained about the Facebook block

as well as other alleged mistreatment not at issue here. Ms. Taylor

asserted, among other things, that the Facebook block violated the

First Amendment. She sought an award of damages under 42

U.S.C. § 1983. Following discovery, the city and the mayor moved

for summary judgment. The mayor relied in part on qualified im-

munity. The district court concluded that the mayor was not enti-

tled to qualified immunity as a matter of law and denied the motion

as to the claims against the mayor in her individual capacity. This

is the mayor’s appeal.

IV

Qualified immunity applies to damages claims against public

officers and protects “all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341

(1986). A long and ever-growing series of cases addresses this prin-

ciple. See, e.g., Carroll v. Carman, 574 U.S. 13 (2014); Hope v.

Pelzer, 536 U.S. 730 (2002); Harlow v. Fitzgerald, 457 U.S. 800

(1982). Of critical importance here, a public officer may be held in-

dividually liable only if the officer’s conduct violated “clearly estab-

lished law.” 2 See, e.g., Echols v. Lawton, 913 F.3d 1313, 1323 (11th

Cir. 2019).

2 Both parties agree that the mayor was acting within the scope of her discre-

tionary authority as the mayor when controlling the city’s Facebook page. See

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“An official’s conduct violates clearly established law when

‘the contours of [the] right are sufficiently clear that every reason-

able official would have understood that what he is doing violates

that right.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)). An official’s conduct must be considered in the “specific

context of the case,” not based only on “broad general proposi-

tion[s].” Id. at 1323–24 (quoting Bailey v. Wheeler, 843 F.3d 473,

484 (11th Cir. 2016)). In assessing whether an official’s conduct vi-

olated clearly established law, the “salient question” is whether the

state of the law at the time of the conduct provided fair warning to

“every reasonable official” that the conduct violated the Constitu-

tion. Id. at 1324 (quoting Mikko v. City of Atlanta, 857 F.3d 1136,

1146 (11th Cir. 2017)).

A plaintiff can demonstrate a right was clearly established in

three ways. Id. (citing Loftus v. Clark-Moore, 690 F.3d 1200, 1204

(11th Cir. 2012)). First, the law can be clearly established by a fac-

tually similar case from the United States Supreme Court, the

Echols v. Lawton, 913 F.3d 1313, 1319 (11th Cir. 2019) (“To obtain a dismissal

based on qualified immunity, a government official must first establish that

[s]he was acting within the scope of [her] discretionary authority when the

alleged wrongful act occurred.” (quotation omitted)). Thus, the burden

shifted to Ms. Taylor to overcome the mayor’s qualified immunity by showing

(1) that the mayor violated a statutory or constitutional right and (2) that the

right was clearly established at the time of the challenged conduct. Id. We

address only the second prong—whether the mayor violated clearly estab-

lished law. See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (explaining that

courts have “discretion to decide which of the two prongs of qualified-immun-

ity analysis to tackle first”).

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21-14070 Opinion of the Court 7

Eleventh Circuit, or the pertinent state supreme court. Id. Second,

a plaintiff can point to “a broader, clearly established principle that

should control the novel facts of the situation.” Id. (quoting Loftus,

690 F.3d at 1204). Third, the plaintiff can show the defendant’s con-

duct so obviously violated the Constitution that prior caselaw was

unnecessary. Id.

Here the first method is plainly unavailable. Ms. Taylor has

cited no decision of the United States Supreme Court, Eleventh

Circuit, or Alabama Supreme Court that establishes that the gov-

ernment engages in impermissible viewpoint discrimination when

it blocks members of the public on its own social-media page. And

we are aware of none.

That brings us to the second and third methods for establish-

ing clearly established law. Ms. Taylor invokes the general First

Amendment principle disfavoring government viewpoint-based re-

strictions on speech. But Ms. Taylor overlooks an equally well-es-

tablished First Amendment principle applicable to a government’s

own speech. These two principles—the one Ms. Taylor relies on

and the one she overlooks—are both part of the qualified-immun-

ity analysis.

First, “[i]t is axiomatic that the government may not regu-

late speech based on its substantive content or the message it con-

veys.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.

819, 828 (1995). “Discrimination against speech because of its mes-

sage is presumed to be unconstitutional,” and “[w]hen the govern-

ment targets not subject matter, but particular views taken by

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8 Opinion of the Court 21-14070

speakers on a subject, the violation of the First Amendment is all

the more blatant.” Id. at 828–29. In short, viewpoint discrimination

is “an egregious form of content discrimination,” and the govern-

ment “must abstain from regulating speech when the specific mo-

tivating ideology or the opinion or perspective of the speaker is the

rationale for the restriction.” Id. at 829.

Second, the government’s own speech—what the govern-

ment chooses to say or not to say—is not subject to the same con-

straints as the government’s restriction of private speech. See Pleas-

ant Grove City v. Summum, 555 U.S. 460, 467–68 (2009); Gundy v.

City of Jacksonville, 50 F.4th 60, 71 (11th Cir. 2022). Thus the gov-

ernment can make even viewpoint-based decisions on what to say

or not to say.

How these two principles apply to a government’s social-

media account—for example, its Facebook page—was not clear in

December 2016 and is not clear today.

On one view, a government page that allows members of

the public to post comments is a limited public forum. A govern-

ment can impose reasonable time, place, and manner restrictions

on such a forum but “may not regulate speech based on its substan-

tive content or the message it conveys.” Rosenberger, 515 U.S. at

828; see also Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989); Keister v. Bell, 29 F.4th 1239, 1252 (11th Cir. 2022).

But on another view, a government page is government

speech, even when others do some of the speaking. See, e.g.,

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Knight First Amend. Inst. at Columbia Univ. v. Trump, 953 F.3d

216, 226–31 (2d Cir. 2020) (Park, J., dissenting from denial of re-

hearing en banc); cf. Pleasant Grove, 555 U.S. at 467–68. When a

government chooses to speak—when, for example, it conducts a

program addressing some issue or commemorating some holi-

day—the government may say what it wishes and may enlist speak-

ers of its choice; doing so is not a free-speech violation. See Pleasant

Grove, 555 U.S. at 467 (“The Free Speech Clause restricts govern-

ment regulation of private speech; it does not regulate government

speech.”); see also Gundy, 50 F.4th at 71. Just because the govern-

ment enlists speakers does not mean it must turn over the micro-

phone to all others who wish to speak.

When the mayor blocked Ms. Taylor 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. On the former view, blocking Ms. Taylor violated the First

Amendment. On the latter view, blocking Ms. Taylor was permis-

sible. The parties did not grapple with this substantive issue in their

briefs, and we do not do so, either. What matters here is not how

this issue would be resolved on the merits but only that the law

was not clearly established—so the mayor has qualified immunity.

This result accords with the holdings of at least three other

circuits. See Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1183–84

(9th Cir. 2022) (holding elected school-board officials acted under

color of law and violated the First Amendment by blocking critics

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from the officials’ social-media accounts but holding the officials

had qualified immunity), cert. granted, No. 22-324, 2023 WL

3046119 (Apr. 24, 2023); Novak v. City of Parma, 932 F.3d 421, 434

(6th Cir. 2019) (holding police officers had qualified immunity for

deleting social-media comments: “Courts have not reached con-

sensus on how First Amendment protections will apply to com-

ments on social media platforms”); Wagschal v. Skoufis, 857 F.

App’x 18, 21 (2d Cir. 2021) (affirming qualified immunity for state

senator who blocked citizen from page and hid comments).

This result also draws support, albeit limited, from the Su-

preme Court’s recent grant of certiorari to address a related,

though distinct, First Amendment issue: whether a public official’s

social-media activity constitutes state action when the official used

the account to feature their job and communicate about job-related

matters with the public but did not do so pursuant to any govern-

mental authority or duty. See Garnier v. O’Connor-Ratcliff, 41

F.4th 1158 (9th Cir. 2022), cert. granted, No. 22-324, 2023 WL

3046119 (Apr. 24, 2023); Lindke v. Freed, 37 F.4th 1199 (6th Cir.

2022), cert. granted, No. 22-611, 2023 WL 3046121 (Apr. 24, 2023).

The grant of certiorari is an additional indication that the law in

this general area remains unsettled. See, e.g., Armstrong v. Excep-

tional Child Ctr., Inc., 575 U.S. 320, 331 (2015) (“The existence of a

granted petition for certiorari demonstrates quite clearly that the

question [at issue] was un settled at the time . . . .” ) (emphasis in

original).

V

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It was not clearly established in December 2016 that block-

ing a member of the public from posting on a government Face-

book page in circumstances like these, even if based on viewpoint,

violated the First Amendment. Thus, the mayor is entitled to qual-

ified immunity, and the district court’s denial of summary judg-

ment as to the claims against the mayor in her individual capacity

is reversed and this case is remanded for further proceedings con-

sistent with this opinion.

REVERSED.