Thursday, October 06, 2022

Harvesting Natural Language and the Language of Knowledge/Power--Presentation From the Folks at Law, Society, and AI: “Information Extraction: Where are we?”, Fabian Suchanek (Télécom Paris)

Pix Credit here


The quantification of law requires a new language.  That new language acquires its operational modalities in code and coding.  But something more is required-- and that 'more' focuses on the liberation of meaning from the cage of text. Text is as much an object of data harvesting as any other object.  Text both serves as a symbolic encasing of meaning, as it serves as the ideological structures that stabilized and rationalizes the meaning (the artifact that is to be extracted) conveyed within the forms of text.  

Pix Credit here
This dual trajectory of datification and of the de-composition of text (and aggregated text within the euphemism-'language') presents challenges and opportunities that have significant effect not merely on communication, but also on (1) the management of communication. and  (2) the instrumentalization of text as symbol-vessels containing harvestable data. In the process, text loses some of its primacy as a means of communication; it gives way to the signification of text which itself now can be communicated by a different set of objects containing meaning. What follows is the fundamental transformation of communication in which the language of managing and curating individuals and social collectives will detach from the language used within social collectives words, images and their textual or pictorial representations). 

Where the operational language of law is grounded in the measurable, and the operationalization of politics is centered on the administration of systems of compliance and assessment, it is only natural that the language of humans (by whatever frm of symbolic representation is is conveyed) becomes data points for the greater project of data driven governance.  To those ends meaning must be extracted from the cage of human to human communication, translated into the language of the measurable by the collective of computing, and then translated against into assessments and judgments that can be (re)conveyed to managed populations.  

Michel Foucault's insights into the disciplinary functions of grimmer in language might now be usually transposed onto the emerging meta-language of knowledge and control: "Expressing their thoughts in words of which they are not the masters, enclosing them in verbal forms whose historical dimensions they are unaware of, men believe that their speech is their servant and do not realize that they are submitting themselves  to its demands. The grammatical arrangements of a language are the a priori of what can be expressed in it." (Michel Foucault, The Order of Things : An Archeology of the Human Sciences (Vintage editions  1994 (1970), p. 297)

That, for me any, formed the background for a marvelous seminar hosted by the folks at Law, Society & AI and its convenors: David Restrepo Amariles (Associate professor, HEC Paris); Michalis Vazirgiannis
Professor (Ecole Polytechnique); Winston Maxwell (Professor, Télécom Paris); and Fabian Suchanek
Professor, (Télécom Paris).

“Information Extraction: Where are we?”, Fabian Suchanek (Télécom Paris)

October 5 @ 14:30 - 16:00
Speaker: Fabian Suchanek (Télécom Paris)
Abstract:

Information Extraction is the task of extracting structured information (such as entities and facts) from natural language documents. It is an important step in making legal documents (such as laws or contracts) available to a computer. In this talk, I will give an overview of how far information extraction has come, what techniques it uses, and what pitfalls it still faces. I will also draw on our own works in the domain of knowledge base construction, rule mining, and the analysis of the power of neural architectures.

Video recording: See the replay
Material: Read the slides
The video and the materials are worth serious study.  Their implication have only now started to become clearer.

Tuesday, October 04, 2022

Legislative Prayer and Governmental Speech: Gundy v. City of Jacksonville (No. 21-11298 11th Cir., Decided: September 30, 2022)

 

Pix Credit here

 The jurisprudence of the Religion Clauses in the United States has long been plagued by the doctrine that distinguishes between governmental speech and private speech.  Not that this doctrine--that is meant to protect governmental speech from being held hostage to whatever may wish to be spewed from the mouths of non-governmental actors in the free exercise of their religious rights--is inherently ripe for abandonment. But rather it encapsulates a reasonable insight--that the state ought to be the active agent of its own speech rather than a hostage to the speech of its demos.

But this is the United States.  And noting as simple and straightforward (in theory) as the public-private speech distinction can long survive before it is sacrifice on the alter of the scholasticism that now characterizes what passes for jurisprudence here. Not that the barque twists and turns of the application of the doctrine has not served the interests of judicial majorities of the Supreme Court when it suited them--even as a means of protecting the populace form religious expression that might not represent the views of a majority. The most spectacularly bad example of this was the case of Pleasant Grove City v. Summum, 555 U.S. 460 (2009) where the justices of the Supreme Court were able to effectively create an exception to the emerging doctrine of neutrality among religions (at least when applied to minority faiths) by recourse to the doctrine of governmental speech. In that case the issue was equal access to a park where monuments were permitted to be erected.

The doctrine has now proven of some use in another important context--that of legislative prayer.  Once viewed as an exception to the liberal jurisprudence that dominated the Supreme Court's journey through the Religion Clauses between 1947 and about 2010 (Town of Greece v. Galloway, 572 U.S. 565,), legislative prayer has become the vehicle for advancing a constitutionalization of history and tradition as a predicate to adjudging the legitimacy of religious practice in a number of other contexts (Kennedy v. Bremerton School District, 597 U.S. ___, (2022)).

But back to legislative prayer and the  private versus governmental speech doctrine.  On 2 July 2019, it was reported that

A local pastor is suing the city, saying his rights were violated when he was stopped from praying during a Jacksonville City Council meeting. According to a complaint filed Tuesday, the Rev. Reginald Gundy said his constitutional rights were violated. He said that, when he was invited to do the invocation during the March 12 meeting, he was cut off by Council President Aaron Bowman during his prayer. Gundy talked about people being stewards of the earth, local pollution, slavery, neglect since consolidation and violence, among other topics. Then he prayed about local government. "People are being intimidated, threatened and bullied by the executive branch of our city government while cronyism and nepotism is being exercised," Gundy said in his prayer. A council member attempted to stop him from talking, asking him to make it a spiritual prayer. "However, in the name of Jesus, there is still hope for the hopeless, for some who have been down so long they can't even think on how to get up," Gundy said.

Then, suddenly, Gundy's microphone went silent. A minute later, the prayer was over and the meeting continued. The following day, Council President Aaron Bowman posted on Twitter: "I never envisioned a CM (council member) stooping so low to find a pastor that would agree to such a sacrilegious attack politicizing something as sacred as our invocation. It obviously was a last ditch effort to try and revive a failed term and campaign. Fortunately I control the microphone." According to the lawsuit, cutting the microphone was a violation of Gundy's freedom of speech. "I was sort of shocked, especially with some of the comments that he made because there is a need to understand our culture, and specifically when we pray in our churches, the black culture, we always think of freedom of oppression, freedom of religion, so politics was the furthest thing from my mind," Gundy said. (Pastor says he was cut off during prayer at City Council meeting )

The 11th Circuit held, in an opinion strategically light on factual analytics and lighter on something other than the strategic use of precedent, explained its way to its holding this way:

This appeal arises from a legislative invocation given by an invited, guest speaker before the opening of a Jacksonville City Council meeting. It centers on the unique role of legislative invocations in our country's history and tradition, the First Amendment, and the distinction between government speech and private speech. As a matter of first impression for our Circuit, we hold that the legislative invocation at issue constitutes government speech. For this reason, after careful review and with the benefit of oral argument, we hold that the district court erred in its motion to dismiss and summary judgment orders by classifying the legislative invocation as private speech in a nonpublic forum. That said, we nonetheless affirm the district court's ultimate disposition of the case because we hold that Reginald L. Gundy's invocation constitutes government speech, not subject to attack on free speech or free exercise grounds. A discussion of the four-minute sequence of events and relevant procedural background that led to this appeal now follows.

Pix Credit HWD Daily
It is not at all clear that a legislatively invited invocation ought to easily fit within the governmental speech doctrine (such as it has become).  It is less clear that it comfortably fits within the category prayer.  Both merit substantially more consideration. It is even less clear that prayer of this sort as governmental speech would not itself violate the establishment clause. The heroic efforts of the 11th Circuit to simultaneously suggest that the speech could not be detached from the governmental that invited it AND that at the same time it could not constitute endorsement of a specific religion defies a sober reflection.  The failure to consider the context of the speech merely because it made the judges uneasy suggests that recusal rather than jurisprudential tap-dancing might have proven to be a more ethical solution to the conundrum. The failure to  then face the race-culture element of the case is also a great pity--it ought to come up again. hat also goes to the issue of the character of prayer--precisely the Rev. Gundy's point.  And yet that is a difficulty that may find no easy solution. What, after all is prayer? Must religion accept a secular definition of prayer that avoids what the secular state defines as political? D the courts have the capacity (or the authority) to parse these offerings?  To what extent does it matter that prayer exists at the intersection of race, culture, ethnicity, or the history and traditions of faith communities? Whatever the jurisprudence says, the rational answer is mostly--not likely--unless an idealized standard is developed.  And that standard will likely reflect the sensibilities of majority relations.  The result is to bring us back to the starting point of neutrality principles but not in a good way. If neutrality is to be judged by the standards of the majority religions, then the effective result is to shit out or burden minority religions. .

None of this is to suggest that the governmental speech doctrine ought to be abandoned.  Quite the reverse--it ought to be tightened up so that its flabby current constitution might be harder to apply to cases like this one. The use of the governmental speech doctrine as a shield against the bother of having to seriously entertain the free exercise argument was also among the great failures of the reasoning of this case. Whether this Circuit likes it or not, the Supreme Court has gone out of its way to insist that free exercise now trumps establishment--and it may trump governmental speech doctrine so expansively applied--at least without a very good reason for extending the concept.  There was no such good reason here.  The issue-- the use of free exercise to advance a political judgment of the pastor would indeed have made a more interesting and relevant basis for decision.

Next time. . . .and there will be a next time. For even though the decision was jurisprudentially plausible, it suggests a dissonance with at least some of the emerging jurisprudence a level above that of the 11th Circuit.

But decide for yourselves. The text of the opinion follows.


GUNDY v. CITY OF JACKSONVILLE FLORIDA

United States Court of Appeals, Eleventh Circuit.

Reginald L. GUNDY, Plaintiff-Appellant, v. CITY OF JACKSONVILLE FLORIDA, a Municipality of the State of Florida, Aaron L. Bowman, individually, Defendants-Appellees.

No. 21-11298 Decided: September 30, 2022

Before Lagoa, Brasher, and TjoWat, Circuit Judges. Neil L. Henrichsen, Henrichsen Law Group, PLLC, Jacksonville, FL, Victoria Blanche Kroell, Cole Scott & Kissane, PA, Jacksonville, FL, for Plaintiff-Appellant. Craig Dennis Feiser, Mary Margaret Giannini, Assistant General Counsel, Jon Robert Phillips, Jason Robert Teal, Gabriella Young, O^ce of General Counsel, City of Jacksonville, Jacksonville, FL, for Defendants-Appellees.

This appeal arises from a legislative invocation given by an invited, guest speaker before the opening of a Jacksonville

1

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Invocation and Initiation of Legal Proceedings

According to a 2010 City Council memorandum (the “Webb Policy”), the City Council “has long maintained a tradition of solemnizing its proceedings by allowing for an opening invocation before each meeting, for the bene*t and blessing of the Council.” Under this policy, “legislative invocations are not a forum for the free exercise of personal religious beliefs, but rather a vehicle through which the Council itself, through selected speakers, seeks blessings and guidance in accomplishing its governmental work.” The Webb Policy also states that “legislative invocations must not be exploited to proselytize or advance any one faith or belief, or to disparage any other faith or belief, and must not create the impression that the legislative body is a^liated, or intends to a^liate, with any particular faith or belief.” Additionally, “[i]ndividuals remain free to pray on their own behalf, as their conscience requires.”

As part of this history and tradition, City Council Rule 1.106 calls for the appointment of a council member as “Chaplain of the Council” to help facilitate “a prayer/invocation” before each meeting; in accordance with Rule 1.106, “[e]ach council member” is given an opportunity to invite a speaker from “religious congregations with an established presence in Jacksonville” to give an invocation. And in line with this directive, Anna Brosche, a City Council member and a then- mayoral candidate, invited Reginald L. Gundy to give the invocation at the March 12, 2019, City Council meeting. The City Council meeting preceded election day for the municipal elections by about a week.

Mr. Gundy, a senior pastor at the Mount Sinai Missionary Baptist Church in Jacksonville, accepted Ms. Brosche's offer. At the time, Mr. Gundy was a supporter of Ms. Brosche's mayoral campaign, having donated to the campaign and having hosted a campaign meeting at his church. After accepting Ms. Brosche's offer, Mr. Gundy typed out a two-page prayer before the City Council meeting. Then, on March 12, Mr. Gundy arrived at the City Council meeting. Without being given a time limit for his invocation or advised as to topics deemed appropriate for invocations, Mr. Gundy stepped up to the microphone at the lectern and began his invocation.

Mr. Gundy started with a direct appeal to a higher power. When Mr. Gundy transitioned to levying criticisms against the City's executive and legislative branches, Aaron Bowman, president of the City Council at the time, interrupted Mr. Gundy, stating: “Mr. Gundy, I'm going to ask you . [to] make it a spiritual prayer. Thank you.” Mr. Gundy continued with the invocation, and, when Mr. Bowman felt that Mr. Gundy did not change the tenor of the invocation, Mr. Bowman cut off the feed to Mr. Gundy's microphone. Mr. Gundy then *nished the invocation without the bene*t of the microphone. With neither incident nor confrontation, Mr. Gundy left the lectern after the City Council recited the Pledge of Allegiance.

A day after the invocation, Mr. Bowman, who supported Ms. Brosche's opponent in the mayoral race, Lenny Curry, took to Twitter and made a thinly veiled reference to Ms. Brosche, stating:

I never envisioned a [council member] stooping so low to *nd a pastor that would agree to such a sacrilegious attack politicizing something as sacred as our invocation. It obviously was a last ditch effort to try and revive a failed term and campaign. Fortunately I control the microphone.

Per his deposition testimony about his decision to cut off the microphone, Mr. Bowman believed that Mr. Gundy's invocation “was not a blessing of the [C]ouncil” and that “it crossed the political lines” by “attacking the administration, knowing that [Mr. Gundy] had sponsored [Ms. Brosche] at his church for an event.” Mr. Bowman said that he “felt [Mr. Gundy] was attacking us as a legislative body. . And then it became clear that, yes, [Mr. Gundy] was attacking the current mayor. . [Mr. Gundy] called out the executive branch.” To Mr. Bowman, “it was very clear that [Mr. Gundy] was acting on [Ms. Brosche's] behalf to try to discredit the current-sitting mayor and her opponent.” Mr. Bowman also stated that the invocation was “not appreciated by many of the council members and they wanted [him] to take action.”

Mr. Bowman noted that determining when someone crosses the line in an invocation is like “artwork” in that Mr. Bowman does not “know it until [he] see[s] it” but, once known, he can act to prevent an invocation from straying from its purpose

/

CASELAW (HTTPS://CASELAW.FINDLAW.COM/)

/

/
US 11TH CIR. (HTTPS://CASELAW.FINDLAW.COM/COURT/US-11TH-CIRCUIT)

/

Reset

City Council meeting.
Amendment, and the distinction between government speech and private speech. As a matter of *rst impression for our Circuit, we hold that the legislative invocation at issue constitutes government speech. For this reason, after careful review and with the bene*t of oral argument, we hold that the district court erred in its motion to dismiss and summary judgment orders by classifying the legislative invocation as private speech in a nonpublic forum. That said, we nonetheless a^rm the district court's ultimate disposition of the case because we hold that Reginald L. Gundy's invocation constitutes government speech, not subject to attack on free speech or free exercise grounds. A discussion of the four-minute sequence of events and relevant procedural background that led to this appeal now follows.

It centers on the unique role of legislative invocations in our country's history and tradition, the First

Font size: A A





1 of 9 10/4/22, 8:14 PM




GUNDY v. CITY OF JACKSONVILLE FLORIDA | FindLaw https://caselaw.findlaw.com/us-11th-circuit/1914096.html




SHARES


as a blessing and proceeding into a political discussion. This is because Mr. Bowman, as the president of the City Council, has general authority under City Council Rule 1.202 to “control . the Council chamber and committee room and . the o^ces and other rooms assigned to the use of the Council whether in City Hall or elsewhere,” as well as general authority to maintain decorum and discipline when serving as the presiding o^cer of meetings under City Council Rules 4.202(f) and 4.505. Mr. Bowman stated that a political attack against “anybody,” including a hypothetical attack against Ms. Brosche, would be “out of line” and that “[a]ny discussion of politics” in the City Council chamber would require Mr. Bowman to take action.

On July 2, 2019, Mr. Gundy brought suit against both the City and Mr. Bowman in his personal capacity. Mr. Gundy then *led an amended complaint on September 30, 2019, marking the operative complaint of the lawsuit. In his amended complaint, Mr. Gundy alleged four counts against the City and Mr. Bowman. The counts stemmed from Mr. Bowman's decision to cut the feed to Mr. Gundy's microphone and Mr. Bowman's subsequent actions, including issuing the Twitter statement and a May 1, 2019, memorandum that outlined new procedures for prayer invocations (the “Bowman Memorandum”).

In his *rst two counts, actionable under 42 U.S.C. § 1983, Mr. Gundy alleged that both the City and Mr. Bowman violated his First Amendment rights under the Free Exercise Clause (Count I) and the Free Speech Clause (Count II) of the United States Constitution. Under both counts, Mr. Gundy alleged that Mr. Bowman's actions violated his “clearly established” constitutional rights and were retaliatory, though he did not bring a discrete count for First Amendment retaliation. For the same reasons, Mr. Gundy brought another two counts against the City, alleging violations of the free exercise and the free speech clauses of the Florida Constitution (respectively, Counts III and IV).

Per his deposition testimony, Mr. Gundy said that he was “offended by [Mr. Bowman's tweet]” calling his “prayer . sacrilegious” and that he felt like his “constitutional rights ha[d] been violated.” In his amended complaint, Mr. Gundy also noted that Mr. Bowman did not interrupt a 2018 invocation in which “the presenter extensively discussed violence in the City of Jacksonville.” For these reasons, Mr. Gundy alleged that Mr. Bowman's actions “were taken for retaliatory, political and other impermissible reasons” and that the City Council, through the City Council Rules, policy, and the Bowman Memorandum, maintained a “policy, custom, and practice” of limiting the free exercise of religion and speech.

B. Motion to Dismiss and Subsequent District Court Order

On October 14, 2019, the City and Mr. Bowman (collectively, “Defendants”) moved to dismiss Mr. Gundy's amended complaint with prejudice. The Defendants later amended their motion to dismiss on April 17, 2020. As relevant to this appeal, the Defendants argued that Mr. Gundy's rights had not been violated because the “limited and focused purpose” of Mr. Gundy's “invited speech was to offer up a religious benediction to the nineteen-member City Council.” For this reason, the Defendants argued that Mr. Gundy's invocation constituted government speech subject to the con*nes of the Establishment Clause—not the con*nes of the Free Speech Clause or the Free Exercise Clause. And, while Mr. Gundy did not plead a discrete Establishment Clause count, the Defendants argued that Mr. Gundy's amended complaint failed to “plausibly allege that the limits Defendants placed on his” invocation “violated the Establishment Clause, much less the Free Exercise and Free Speech Clauses of the First Amendment.” This is because they argued that limiting invocations to “religious prayer”—versus political speech or secular prayer—is a valid restraint under the Establishment Clause.

Seemingly in the alternative and advancing a private speech theory, the Defendants also argued that the “Council Chambers, and in particular the invocation itself prior to a public meeting, is a limited public forum,” in which Mr. Gundy “did not have a First Amendment right to engage in any and all speech.” In such a setting, the Defendants argued that a restriction on speech is “permitted as long as it is reasonable given the forum's purpose and not based on any one viewpoint and alternative opportunities,” such as the public comments portions of City Council meetings, “are provided to communicate one's speech.” The Defendants argued that Mr. Bowman's “restriction was reasonable given the purpose of invocations” and that the restriction “was a proper time, place and manner restriction in a limited forum meant only for prayer for the Council's bene*t at the start of each meeting, in order to control and keep the meeting orderly.”

In concluding their motion to dismiss, the Defendants argued that Mr. Bowman was entitled to quali*ed immunity, given his role as City Council president. The Defendants also argued that the City was entitled to sovereign immunity as to the state law claims. Finally, they argued that Mr. Gundy could not seek money damages under the Florida Constitution.

On November 4, 2020, the district court granted the Defendants’ motion to dismiss in part and denied it in part. The district court dismissed all of Mr. Gundy's claims against Mr. Bowman (i.e., Counts I and II), as well as the free exercise of religion claims against the City (i.e., Counts I and III) with prejudice. The district court also limited Mr. Gundy's request for money damages to his remaining free speech claim against the City under the United States Constitution (i.e., Count II) and disallowed money damages for his remaining free speech claim against the City under the Florida Constitution (i.e., Count IV).

As to the claims against Mr. Bowman, the district court found Mr. Bowman entitled to quali*ed immunity. In conducting its quali*ed immunity analysis, the district court found that “Mr. Bowman was undoubtedly acting in his o^cial capacity when the alleged conduct took place.” Thus, the district court turned to whether Mr. Gundy had met his burden of identifying a “clearly established” statutory or constitutional right in which a reasonable person, in Mr. Bowman's position, would have been aware of before silencing the microphone. The district court held that Mr. Gundy failed to meet such a burden because Mr. Gundy's citations to caselaw and City Council policies pertained to the Establishment Clause and the legality of legislative prayer, in general—not whether the City Council and Mr. Bowman had the ability to impede Mr. Gundy's invocation.

As to the free exercise claims against the City (i.e., Counts I and III), the district court examined both the Bowman Memorandum, as referenced by Mr. Gundy's complaint, along with the City Council Rules, because of Mr. Gundy's “repeated references to Mr. Bowman requesting [Mr. Gundy] cease his invocation” in the amended complaint. The district court found that the “plain language” of the Bowman Memorandum “expressly refute[d]” Mr. Gundy's allegation that it precluded him from praying as his conscience required. The district court also noted that the Bowman Memorandum was issued after Mr. Gundy's invocation, so it was not germane to his claims. Finally, the district court noted that the “general procedural rules giving the Council President the ultimate authority to conduct and manage Council meetings” are rules “of general application,” which “do not expressly prohibit any individual from holding or acting in accordance with a sincerely held belief.” Since the district court held that “[l]aws of general application,” including those with incidental burdens on religious practice, do not require justi*cation via a compelling interest, the district court also held that the City Council's “interest in maintaining order during its meetings,” coupled with the fact that Mr. Gundy was allowed to complete his prayer, indicated that Mr. Gundy's right to free exercise under both the United States Constitution and the Florida Constitution was not violated.

As to the remaining free speech claims against the City, the district court held that it could not “conclude that [Mr. Gundy's] invocation was unquestionably government speech as a matter of law, as Defendants” argued. The district court



2 of 9 10/4/22, 8:14 PM




GUNDY v. CITY OF JACKSONVILLE FLORIDA | FindLaw https://caselaw.findlaw.com/us-11th-circuit/1914096.html




SHARES


noted that if it deemed Mr. Gundy's invocation government speech, then Mr. Gundy's claims would fail because the Free Speech Clause does not regulate government speech. Citing Mech v. School Board of Palm Beach County, 806 F.3d 1070 (11th Cir. 2015), and “[b]eing conscientious of” this Court's “warning to tread lightly when judicially declaring speech to be the government's own,” the district court found that Mr. Gundy “su^ciently alleged that at least some of his speech could be categorized as private speech subject to First Amendment protection.”

Since the district court found that the invocation “arguably involve[d] private speech,” the district court then went into a discussion about the nature of the speaking forum. Relying on Cambridge Christian School, Inc. v. Florida High School Athletic Ass'n, Inc., 942 F.3d 1215 (11th Cir. 2019), the district court found the invocation setting to be a nonpublic forum. The district court then noted that “further development of the record” would be needed to determine whether Mr. Bowman's decision to cut off the microphone was viewpoint neutral and nondiscriminatory. Thus, the district court denied the Defendants’ motion to dismiss as to the free speech claims against the City and allowed the case to proceed with discovery.

C. Motion for Summary Judgment and Subsequent District Court Order

On November 30, 2020, the City moved for summary judgment on the remaining free speech claims (i.e., Counts II and IV) under the United States Constitution and the Florida Constitution. On March 22, 2021, the district court granted the City's motion for summary judgment. The district court held that the City was not liable under § 1983 because “the record d[id] not reWect [that] the City had a history of arbitrary enforcement” of the City Council Rules when it came to restricting speech.

In reaching its ultimate holding and relying on its previous motion to dismiss order, the district court *rst found that, under Cambridge Christian, Mr. Gundy's speech constituted private speech. Next, because of the closed nature of the invocation as compared to the open, public comments portions of City Council meetings, the district court again found that the invocation setting constituted a nonpublic forum. Then, the district court turned to the question of § 1983 and the scope of municipal liability.

Citing the Monell doctrine,2 the district court noted that Council Rule 1.202, which grants general authority to the City Council president to exercise control over City Council meetings, was “undoubtedly a ‘policy’ for purposes of . Monell analysis.”3 For this reason, the district court examined whether the “City's restriction of [Mr. Gundy's] speech was reasonable—i.e., whether [Mr. Gundy's] First Amendment rights were violated.” Since the government's ability to “limit[ ] speech is . at its highest” in a nonpublic forum, the district court found Council Rule 1.202 as “facially reasonable” when used to enforce “content-based restrictions on speech to ensure an invocation is preserved for its intended purposes.” The district court then held that Mr. Gundy failed to show that the policy was “used in a way that discriminated based on a speaker's viewpoint” or that the policy was “enforced arbitrarily.”

The district court held that cutting the feed to Mr. Gundy's microphone did not constitute viewpoint discrimination. The district court found that “Mr. Bowman's comment when interrupting [Mr. Gundy] and the subsequent removal of [Mr. Gundy's] ampli*cation were for the stated purposed of preserving the invocation for” the solemnization of City Council meetings and the blessing of City Council members. While the district court held that Mr. Gundy's remarks “might have been entirely appropriate if delivered in a more public forum” or at Mr. Gundy's “pulpit,” they were subject to “reasonable and viewpoint-neutral limitations” once Mr. Gundy's invocation “became contentious and divisive.” The district court also credited Mr. Bowman's testimony about his apolitical intentions when impeding Mr. Gundy as part of “undisputed” facts indicating the viewpoint-neutral nature of Mr. Bowman's actions.

As to whether the City, via Mr. Bowman, enforced Council Rule 1.202 arbitrarily, the district court held that the City did not. The district court noted that Mr. Gundy failed to present “any evidence” to support such a claim. The district court found Mr. Gundy's “sole example” of the City Council allowing an invocation to continue with allegedly “disparaging or divisive remarks” as “hardly comparable” to Mr. Gundy's remarks. The district court noted that the context of Dr. Nicholas Louh's August 2018 invocation, which had been identi*ed as the invocation Mr. Gundy referenced in his amended complaint, came “three days following the fatal mass shooting at the Jacksonville Landing.” Moreover, and “more saliently,” the district court noted that Dr. Louh's invocation, while “somber and reWective in reference to violence in the City of Jacksonville,” refrained from “placing blame on the legislature or executive branch” and lacked “divisive or accusatory” language. For these reasons, the district court found Dr. Louh's invocation as substantially dissimilar to Mr. Gundy's invocation and held that Mr. Bowman did not enforce the City Council Rules in an arbitrary or haphazard manner.

Ultimately, in granting summary judgment for the City, the district court noted two caveats. First, the district court stated that “the City prevailed in this action because the record d[id] not reWect [that] the City had a history of arbitrary enforcement of Council Rule 1.202.” Thus, the district court explained that, on “a different record,” a “different outcome could result” from the actions of a City Council president. Second, the district court stated that it was “not meant to be the arbiter of what” constitutes “allowable ‘prayer,’ ” implying that it had done no such thing in coming to its disposition of the case. Finally, the district court concluded by noting the dangers that can occur if courts become overly involved in censoring religious speech.

Mr. Gundy timely appealed the district court's orders granting the motion to dismiss, in part, and granting summary judgment.

II. STANDARD OF REVIEW

“We review de novo a district court's grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, accepting the complaint's factual allegations as true and construing them in the light most favorable to the plaintiff.” United States v. Henco Holding Corp., 985 F.3d 1290, 1296 (11th Cir. 2021). “To survive a motion to dismiss, a complaint must contain su^cient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

Likewise, we review de novo a district court's order granting summary judgment. Mech, 806 F.3d at 1074. “Summary judgment is appropriate if ‘the evidence before the court shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” McCullough v. Antolini, 559 F.3d 1201, 1204 (11th Cir. 2009) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). “When considering a motion for summary judgment, . ‘courts must construe the facts and draw all inferences in the light most favorable to the nonmoving party and when conWicts arise between the facts evidenced by the parties, [they must] credit the nonmoving party's version.’ ” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (alteration in original) (quoting Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006)). Finally, we “may a^rm the judgment of the district court on any ground supported by the record, regard-less of whether that ground was relied upon or even considered by the district court.” Kernel Recs. Oy v.



3 of 9 10/4/22, 8:14 PM




GUNDY v. CITY OF JACKSONVILLE FLORIDA | FindLaw https://caselaw.findlaw.com/us-11th-circuit/1914096.html




S H A R E S


Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012). III. ANALYSIS

On appeal, Mr. Gundy raises three primary arguments. First, Mr. Gundy argues that the district court erred in *nding Mr. Bowman entitled to quali*ed immunity and dismissing the federal claims against Mr. Bowman. Second, Mr. Gundy argues that the district court erred by dismissing the claims against the City under the Monell doctrine because Mr. Bowman acted in an arbitrary, haphazard, or discriminatory manner when he cut Mr. Gundy's microphone feed. Finally, Mr. Gundy argues that the district court erred by failing to address his First Amendment retaliation claims. As made clear by these arguments, Mr. Gundy's appeal centers on the fact that he brought counts against Mr. Bowman and the City based on alleged violations of his free speech and free exercise rights under the United States Constitution and the Florida Constitution.4

As a threshold and dispositive matter, and for the reasons discussed below, we hold that the district court erred in deeming the invocation private speech in a nonpublic forum instead of government speech. And since Mr. Gundy did not allege a violation of his rights under the Establishment Clause, which is the proper constitutional vehicle to attack the government speech at issue here, his appeal must fail.5

A. Mr. Gundy's Invocation Constitutes Government Speech

“The First Amendment works as a shield to protect private persons from ‘encroachment[s] by the government’ on their right to speak freely, not as a sword to compel the government to speak for them.” Leake v. Drinkard, 14 F.4th 1242, 1247 (11th Cir. 2021) (alteration and emphasis in original) (citation omitted) (quoting Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 566, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995)). Thus, “[w]hen government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207, 135 S.Ct. 2239, 192 L.Ed.2d 274 (2015); see also Mech, 806 F.3d at 1074 (“The Free Speech Clause of the First Amendment ‘restricts government regulation of private speech; it does not regulate government speech.’ ” (quoting Pleasant Grove City v. Summum, 555 U.S. 460, 467, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009))). In this regard, “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.” Walker, 576 U.S. at 207, 135 S.Ct. 2239. Indeed, “[w]hen the government exercises ‘the right to “speak for itself,” ’ 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.” Mech, 806 F.3d at 1074 (*rst quoting Summum, 555 U.S. at 467–68, 129 S.Ct. 1125; then quoting Downs v. L.A. Uni*ed Sch. Dist., 228 F.3d 1003, 1012 (9th Cir. 2000)).

To be sure, “[t]his does not mean that there are no restraints on government speech.” Summum, 555 U.S. at 468, 129 S.Ct. 1125. “[G]overnment speech must comport with the Establishment Clause,” for one. Id. And “a government entity is ultimately ‘accountable to the electorate and the political process for its advocacy.’ ” Id. (quoting Bd. of Regents of Univ. of Wis Sys. v. Southworth, 529 U.S. 217, 235, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000)). “If the citizenry objects, newly elected o^cials later could espouse some different or contrary position.” Southworth, 529 U.S. at 235, 120 S.Ct. 1346.

Thus, the distinction between government speech and private speech plays the pivotal role in this appeal. If Mr. Gundy's invocation is considered government speech, his free speech claims must fail because government speech does not enjoy protection under the Free Speech Clause. Mech, 806 F.3d at 1072. And in that circumstance, Mr. Gundy's free exercise claims also must fail because, “when members of a governmental body participate in a prayer for themselves and do not impose it on or prescribe it for the people, the religious liberties secured to the people by the First Amendment are not directly implicated.” Simpson v. Chester*eld Cnty. Bd. of Supervisors, 404 F.3d 276, 289 (4th Cir. 2005) (Niemeyer, J., concurring) (emphasis in original); accord Fields v. Speaker of Pa. House of Representatives, 936 F.3d 142, 160 (3d Cir. 2019) (“Because legislative prayer is government speech, the Free Exercise Clause does not apply, and the [plaintiffs’] free-exercise claim fails.”).

As discussed above, the district court opined on the issue of whether Mr. Gundy's invocation constituted government speech or private speech without reaching a de*nitive conclusion when granting, in part, the Defendants’ motion to dismiss. The district court discussed the three Cambridge Christian factors that this Court relies on to determine whether speech constitutes government speech—namely, (1) history; (2) endorsement; and (3) control, see 942 F.3d at 1230–36— and stated that, at the “early stage” of the litigation, the district court could not conclude that the “invocation was unquestionably government speech.” Then, in its order granting summary judgment, the district court explained that the City provided the Webb Policy as the “only additional fact . in support of the City's position” that the invocation constituted government speech. While the district court noted that certain elements of the Webb Policy “may tilt” the control factor in favor of a government speech determination, the district court stated that the Cambridge Christian factors “continue[d] to support a *nding that the contents of” Mr. Gundy's “prayer was his own private speech.”

On appeal, the Defendants “contend that the invocation” constitutes “government speech.” By contrast, Mr. Gundy “agrees” with the district court “that the speech at issue is private” but claims that “the material facts in dispute provide that the forum at the invocation could be considered a limited public forum where government reserves a forum for certain groups or for the discussion of certain topics.” For these reasons, we must address the threshold issue of whether Mr. Gundy's invocation constitutes government speech or private speech in some type of forum. In addressing this issue, we *rst note the unique and well-established role of legislative prayer in this country's history and tradition. We then apply this Circuit's government speech precedent to conclude that Mr. Gundy's invocation constitutes government speech, thereby agreeing with several sister circuits that have determined that legislative prayer constitutes government speech.

1. Legislative Prayer Occupies a Unique Place in Our History and Tradition under the Establishment Clause

In Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), the Supreme Court directly addressed the constitutionality of legislative prayer in considering “whether the Nebraska Legislature's practice of opening each legislative day with a prayer by a chaplain paid by the State violate[d] the Establishment Clause of the First Amendment.” 463 U.S. at 784, 103 S.Ct. 3330. Reversing the Eighth Circuit, the Supreme Court held that it did not. Id. at 795, 103 S.Ct. 3330.

The Supreme Court reasoned that the “opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country,” Wowing from “colonial times through the founding of the Republic and ever since.” Id. at 786, 103 S.Ct. 3330. And the Supreme Court noted that “three days after Congress authorized the appointment of paid chaplains” in 1789, “*nal agreement was reached on the language of the Bill of Rights,” showing that “[c]learly the men who wrote the First Amendment Religion Clause did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.” Id. at 788, 103 S.Ct. 3330. For these reasons, the Supreme Court concluded:



4 of 9 10/4/22, 8:14 PM




GUNDY v. CITY OF JACKSONVILLE FLORIDA | FindLaw https://caselaw.findlaw.com/us-11th-circuit/1914096.html




SHARES


In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an “establishment” of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.

Id. at 792, 103 S.Ct. 3330.

The Supreme Court also looked at three speci*c aspects of the Nebraska policy—namely, the chaplain's long tenure and Presbyterian denomination, the state-funded nature of the chaplain's salary, and the “Judeo-Christian tradition” of the chaplain's prayers—to determine whether the policy violated the Establishment Clause. Id. at 792–93, 103 S.Ct. 3330. Most importantly for this appeal, the Supreme Court determined that the “content of the prayer is not of concern to judges where . there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Id. at 794–95, 103 S.Ct. 3330.

Several years after Marsh, the Supreme Court decided County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), abrogated by Town of Greece v. Galloway, 572 U.S. 565, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014). It is notable for its commentary, in dictum, about Marsh. Speci*cally, County of Allegheny dealt with whether the display of a crèche and a menorah on municipal property violated the Establishment Clause. 492 U.S. at 578–79, 109 S.Ct. 3086. For purposes of this appeal, in dictum, the majority attributed the holding that the legislative prayer in Marsh did not violate the Establishment Clause due to the fact that the “chaplain had ‘removed all references to Christ.’ ” Id. at 603, 109 S.Ct. 3086 (quoting Marsh, 463 U.S. at 793 n.14, 103 S.Ct. 3330). Thus, the opinion set forth the implication that the holding in Marsh only applied to nonsectarian forms of prayer.

Twenty-*ve years after County of Allegheny, the Supreme Court returned to the topic of legislative prayer in Town of Greece v. Galloway. In that case, the Supreme Court needed to “decide whether the town of Greece, New York, impose[d] an impermissible establishment of religion by opening its monthly board meetings with a prayer,” given by solely Christian ministers “from 1999 to 2007.” 572 U.S. at 569–71, 134 S.Ct. 1811. After reviewing the town's legislative prayer policies, the Supreme Court held that the town did not violate the Establishment Clause. Id. at 570, 575, 134 S.Ct. 1811.

In so doing, the Supreme Court clari*ed that the “inquiry” into whether legislative prayer violates the Establishment Clause depends on whether the legislative prayer at issue “*ts within the tradition long followed in Congress and the state legislatures.” Id. at 577, 134 S.Ct. 1811. Dispelling the interpretation of the dictum in County of Allegheny, the Supreme Court stated that an “insistence on nonsectarian or ecumenical prayer as a single, *xed standard is not consistent with the tradition of legislative prayer outlined in the Court's cases,” most notably Marsh’s harkening back to the “decidedly Christian nature” of the *rst prayers given before Congress. Id. at 578–81, 134 S.Ct. 1811. The Supreme Court reiterated that “the ‘content of the prayer is not of concern to judges,’ provided ‘there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.’ ” Id. at 581, 134 S.Ct. 1811 (quoting Marsh, 463 U.S. at 794–95, 103 S.Ct. 3330). Thus, the Supreme Court “reject[ed] the suggestion that legislative prayer must be nonsectarian.” Id. at 582, 134 S.Ct. 1811.

In reaching this holding, the Supreme Court reasoned that a contrary holding “would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech,” which “would involve government in religious matters to a far greater degree than is the case under the town's current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.” Id. at 581, 134 S.Ct. 1811. And the Supreme Court noted that the “First Amendment is not a majority rule, and government may not seek to de*ne permissible categories of religious speech.” Id. at 582, 134 S.Ct. 1811. For this reason, once government “invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.” Id.

The Supreme Court clari*ed that the holding did “not imply that no constraints remain on [legislative prayer's] content,” but rather the “relevant constraint derives from [the] place” of legislative prayer “at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reWect values long part of the Nation's heritage.” Id. at 582–83, 134 S.Ct. 1811. According to the Supreme Court, “[p]rayer that is solemn and respectful in tone, that invites lawmakers to reWect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function.” Id. at 583, 134 S.Ct. 1811. The Supreme Court found support for this proposition in examining “the prayers offered to Congress,” which “often seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that count as universal and that are embodied not only in religious traditions, but in our founding documents and laws.” Id. As to overtly sectarian language, “[i]f the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort.” Id.

Finally, in Part II-B of the opinion, which only Justices Roberts and Alito joined, Justice Kennedy described the format and intended audience for legislative prayer. Id. at 586–88, 134 S.Ct. 1811. Justice Kennedy noted that the “principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may *nd that a moment of prayer or quiet reWection sets the mind to a higher purpose and thereby eases the task of governing.” Id. at 587, 134 S.Ct. 1811. Moreover, while “many members of the public *nd these prayers meaningful and wish to join them[,] . their purpose is largely to accommodate the spiritual needs of lawmakers and connect them to a tradition dating to the time of the Framers.” Id. at 588, 134 S.Ct. 1811. This is because, for “members of town boards and commissions, who often serve part-time and as volunteers, ceremonial prayer may also reWect the values they hold as private citizens.” Id. And the legislative “prayer is an opportunity for them to show who and what they are without denying the right to dissent by those who disagree.” Id.

This Court has adopted the tenets expressed in the aforementioned line of Supreme Court jurisprudence and has developed a three-factor analytical framework to determine whether legislative invocations and prayers violate the Establishment Clause. See generally Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008). This Court considers: (1) the identity of the invocation speaker; (2) the process by which the invocation speaker is selected by a governmental entity; and (3) the nature of the prayer delivered by the invocation speaker to determine whether the prayer “had been exploited to a^liate the [government entity] with a particular faith.” Id. at 1277–78; accord Williamson v. Brevard County, 928 F.3d 1296, 1310–16 (11th Cir. 2019); Atheists of Fla., Inc. v. City of Lakeland, 713 F.3d 577, 590–96 (11th Cir. 2013).

This Court has repeatedly cautioned against the need to reach the third factor set forth in the framework, explaining that this Court “read[s] Marsh . to forbid judicial scrutiny of the content of prayers absent evidence that the legislative prayers have been exploited to advance or disparage a religion.” Pelphrey, 547 F.3d at 1274. This is because the “federal judiciary has no business in ‘compos[ing] o^cial prayers for any group of the American people to recite as a part of a religious program carried on by government.’ ” Id. at 1278 (alteration in original) (quoting Lee v. Weisman, 505 U.S. 577, 588, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992)); see also Williamson, 928 F.3d at 1310 (“[J]ust like in Pelphrey and Atheists of Florida,



5 of 9 10/4/22, 8:14 PM




GUNDY v. CITY OF JACKSONVILLE FLORIDA | FindLaw https://caselaw.findlaw.com/us-11th-circuit/1914096.html




SHARES


Keeping in mind the background that legislative invocations and prayers are well-established in this country's history and tradition and the mandate to exercise caution when considering whether to review the content of prayers, we turn to our government speech precedent regarding the direct issue pertinent to this appeal—whether Mr. Gundy's invocation constitutes government speech or private speech.

2. Under Our Precedent, Mr. Gundy's Invocation Constitutes Government Speech

Having established the treatment of legislative prayer in the context of the Establishment Clause, we now turn to consideration of legislative prayer and the category of speech that such prayer falls under for purposes of the First Amendment.6 This Court's 2019 decision in Cambridge Christian articulates the standard in which this Court determines whether speech constitutes government speech or private speech. See 942 F.3d 1215; see also Leake, 14 F.4th 1242.

In Cambridge Christian, this Court examined whether the decision to prohibit two Christian schools from using the loudspeaker to broadcast a prayer before the kickoff in a state football playoff game by the Florida High School Athletic Association (“FHSAA”), a “state actor,” violated the Free Speech, Free Exercise, and Establishment Clauses of the United States Constitution, as well as those parallel clauses under the Florida Constitution. 942 F.3d at 1222, 1228. The district court had dismissed the entirety of Cambridge Christian School's claims against the FHSAA for failure to state a claim. Id. at 1222. As to the free speech claims, the district court concluded that speaking over the loudspeaker was either government speech or, in the alternative, that the loudspeaker “was a nonpublic forum” in which Cambridge Christian School was reasonably restricted from voicing its private speech. Id. at 1222–23. As to the free exercise claims, the district court found that the FHSAA did not deny the schools’ abilities to pray because the schools were “still allowed to pray together at the center of the football *eld, albeit without the aid of a loudspeaker system.” Id. at 1223. Finally, the district court “denied declaratory relief under the Establishment Clauses” of the United States Constitution and the Florida Constitution “on the ground that the controversy was more properly framed under the” respective free speech and free exercise clauses. Id.

Ultimately, this Court concluded that “the district court was too quick to dismiss all of Cambridge Christian School's claims out of hand” at the motion to dismiss stage of the litigation because of the “fact-intensive” nature of the government speech inquiry and the limited record. Id. This is because this Court “simply d[id] not have enough information to say with any con*dence that, if every-thing in the complaint [was] true, speech disseminated over the public-address system was and would have been government speech as a matter of law.” Id. at 1236. And since this Court could not conclude that the speech was government speech as a matter of law on the limited record, “necessarily . at least some of [the speech] was private speech,” if it was not government speech. Id. at 1236. This Court then turned to the district court's alternative *nding and concluded that Cambridge Christian School “plausibly alleged only a nonpublic forum and no more,” given the restricted nature of the loudspeaker. Id. at 1240. This Court also concluded that Cambridge Christian School “plausibly alleged that it was arbitrarily and haphazardly denied access to the forum in violation of the First Amendment.” Id. at 1223.

Importantly for this appeal, this Court described the factors—history, endorsement, and control—that courts in this Circuit must weigh when determining whether speech constitutes government speech. Id. at 1232–36. As to the history factor, courts must “ask whether the type of speech under scrutiny has traditionally ‘communicated messages’ on behalf of the government.” Id. at 1232 (quoting Walker, 576 U.S. at 211, 135 S.Ct. 2239). As to the endorsement factor, courts must ask “whether the kind of speech at issue is ‘often closely identi*ed in the public mind with the government.’ ” Id. (quoting Summum, 555 U.S. at 472, 129 S.Ct. 1125). Finally, as to the control factor, courts must ask “whether the relevant government unit ‘maintains direct control over the messages conveyed’ through the speech in question.” Id. at 1234–35 (quoting Walker, 576 U.S. at 213, 135 S.Ct. 2239). In discussing the control factor, this Court provided the caveat that “[n]o case precedent says that the government must control every word or aspect of speech in order for the control factor to lean toward government speech.” Id. at 1235–36.

Unlike Cambridge Christian, this appeal presents this Court with a robust enough record to determine whether Mr. Gundy's invocation constitutes government speech. We discuss the three government speech factors—history, endorsement, and control—in turn and why the district court misapplied these factors. These three “factors are neither individually nor jointly necessary for speech to constitute government speech,” but “a *nding that all evidence government speech will almost always result in a *nding that the speech is that of the government.” Leake, 14 F.4th at 1248 (emphasis in original). All three factors lead us to conclude that Mr. Gundy's invocation constitutes government speech.

i. History

To begin, we must “ask whether the type of speech under scrutiny has traditionally ‘communicated messages’ on behalf of the government.” Cambridge Christian, 942 F.3d at 1232 (quoting Walker, 576 U.S. at 211, 135 S.Ct. 2239). Here, we agree with the district court's *ndings that “invocations are traditionally limited to a single purpose” of solemnizing “proceedings before legislatures engage in the . task of governance” and that the “traditional audience of an invocation . is the legislature itself.” But we disagree with the district court's unawareness “of any established tradition of invocations being used to communicate messages on behalf of a governmental body” as being both out of touch with the role of the City Council's particular invocation and the unique role that legislative invocations have played throughout this country's history and tradition.

Because this case involves a legislative invocation, our consideration of the history factor is informed by our prior discussion of the history and tradition of legislative invocations that often arises in the context of an Establishment Clause case. Under the record presented and the Webb Policy, the City Council “has long maintained a tradition of solemnizing its proceedings by allowing for an opening invocation before each meeting, for the bene*t and blessing of the Council.” This is nothing new—as we have already discussed, it has long been acknowledged that the “opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country,” stemming from the “colonial times through the founding of the Republic and ever since.” Marsh, 463 U.S. at 786, 103 S.Ct. 3330. In fact, “there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society.” Id. at 792, 103 S.Ct. 3330. And, “[a]s a practice that has long endured, legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court.’ ” Town of Greece, 572 U.S. at 587, 134 S.Ct. 1811.

While the invocation is meant for the bene*t and the blessing of the City Council, which by itself militates toward a *nding of government expression, see Fields, 936 F.3d at 158, the general public is still in attendance during the invocation. Indeed, the invocation precedes the City Council's o^cial meetings, which members of the public participate in, making the invocation inherently “governmental in nature.” Turner v. City Council of City of Fredericksburg, 534 F.3d 352, 354 (4th Cir. 2008) (O'Connor, J., retired and sitting by designation). Further, the invocation speaker is chosen by an active member



we have no occasion to engage the third factor of the test—the content of the prayers.”).



6 of 9 10/4/22, 8:14 PM




GUNDY v. CITY OF JACKSONVILLE FLORIDA | FindLaw https://caselaw.findlaw.com/us-11th-circuit/1914096.html




SHARES


of the City Council. Thus, the speaker is an invited agent of the City Council praying on behalf of the City Council and symbolically expressing “who and what” City Council members represent before the City Council members engage in public lawmaking. Fields, 936 F.3d at 158 (quoting Town of Greece, 572 U.S. at 588, 134 S.Ct. 1811); see also Ctr. for Inquiry, Inc. v. Marion Cir. Ct. Clerk, 758 F.3d 869, 874 (7th Cir. 2014) (noting that “what a chosen agent of the government says” is inherently “part of the government's own operations”).

Certainly, the history of the City Council's invocation and the well-established history and tradition of legislative invocations as part of the fabric of this country—akin to the Pledge of Allegiance—militate toward a *nding of government speech. Cf. Leake, 14 F.4th at 1248 (“The history of military parades in general, and this [p]arade in particular, weighs in favor of *nding that the [p]arade was government speech.”). Moreover, the format of the City Council's invocation preceding a public meeting in which City Council members will conduct business affairs also militates toward a *nding of government speech. Thus, “history establishes both that the medium used here and the message conveyed through it are ones traditionally associated with governments.” Id. at 1249. For these reasons, the history factor weighs in favor of a government speech *nding.

ii. Endorsement

Turning to the endorsement factor, we must ask “whether the kind of speech at issue is ‘often closely identi*ed in the public mind with the government.’ ” Cambridge Christian, 942 F.3d at 1232 (quoting Summum, 555 U.S. at 472, 129 S.Ct. 1125). Like the history factor, we again agree with many of the district court's *ndings but disagree with its conclusion. Indeed, we agree that “there are certainly indicia that the [City] Council endorsed” Mr. Gundy's invocation in that the City Council “designated a portion of their public meeting for an invocation, maintained rules and appointed o^cers dedicated to ensuring an invocation took place, personally invited [Mr. Gundy] to perform the invocation, and allowed the invocation to take place on public property.” But we disagree with the district court's assertion that the “endorsement factor is . complicated by the Establishment Clause” in concluding that the “endorsement factor does not weigh in favor of either party.”

As a preliminary matter, we begin with the district court's conclusion that the Establishment Clause complicates the endorsement factor. The district court's apprehension about the Establishment Clause is misguided. Indeed, “[b]ecause ‘government speech must comport with the Establishment Clause’ anyway, any Establishment Clause–based limits” cannot “change the conclusion that legislative prayer is government speech.” Fields, 936 F.3d at 159 (citation omitted) (quoting Summum, 555 U.S. at 469, 129 S.Ct. 1125); see also Summum, 555 U.S. at 482, 129 S.Ct. 1125 (Scalia, J., concurring) (acknowledging the separate analyses for a government speech *nding and a breach of the Establishment Clause *nding). And, as discussed below, beyond the fact that government speech is con*ned by the bounds of the Establishment Clause from the outset, this Court has its own Establishment Clause analytical framework, see Pelphrey, 547 F.3d at 1277–78, and Mr. Gundy has not alleged an Establishment Clause violation.

Having addressed this preliminary matter, we move to the district court's *ndings that we agree with. As noted by the district court, the City Council's invocation can be closely identi*ed in the public mind with the government because the City Council organizes the invocation, it provides the venue for the invocation, it selects the speaker for the invocation, and then it begins its business meeting. Cf. Mech, 806 F.3d at 1076 (“The banners are hung on school fences, and government property is ‘often closely identi*ed in the public mind with the government unit that owns the land.’ ” (quoting Summum, 555 U.S. at 472, 129 S.Ct. 1125)). These facts are much like the facts analyzed in Turner, see 534 F.3d at 354 (noting that “[t]he prayer [was] an o^cial part of every [c]ouncil meeting,” the prayer was “delivered as part of the opening” of the meeting along with Pledge of Allegiance, and the speaker was “called on by the [m]ayor”), when it determined that the purpose of the legislative prayer was “governmental in nature.” Surely, a member of the public attending the City Council meeting in person or watching the meeting on the City Council's website, on which a public video of Mr. Gundy's invocation is available, would identify the invocation with the City Council, given the occasion. Cf. Leake, 14 F.4th at 1249 (discussing how the “[c]ity publicly advertised and promoted the 2019 [p]arade on its website” when analyzing whether the city endorsed the parade).

Moreover, Mr. Gundy, and other speakers, are chosen by City Council members to give an invocation “for the bene*t and blessing of the Council.” And “what a chosen agent of the government says” is “part of [the City Council's] own operations.” Ctr. for Inquiry, 758 F.3d at 874. Here, the invocation speaker—the chosen agent—is part of the City Council's “ceremonial prayer . to show who and what” the City Council and its members stand for. Town of Greece, 572 U.S. at 588, 134 S.Ct. 1811. Thus, the invocation speaker is “given the chance to pray on behalf of the government.” Turner, 534 F.3d at 356. And even though the invocation speaker is a private party, the fact that a “private part[y] take[s] part in the . propagation of a message does not extinguish the governmental nature of the message or transform the government's role into that of a mere forum-provider.” Walker, 576 U.S. at 217, 135 S.Ct. 2239. Thus, the endorsement factor weighs in favor of a government speech *nding.

iii. Control

Finally, we must ask “whether the relevant government unit ‘maintains direct control over the messages conveyed’ through the speech in question.” Cambridge Christian, 942 F.3d at 1234–35 (quoting Walker, 576 U.S. at 213, 135 S.Ct. 2239). We note that “[n]o case precedent says that the government must control every word or aspect of speech in order for the control factor to lean toward government speech,” and we do not create such precedent now. Id. at 1235–36; accord Leake, 14 F.4th at 1250 (“The government-speech doctrine does not require omnipotence.”). This is because the Supreme Court and this Court have cautioned against judicial scrutiny of the content of prayers in all but the most extreme circumstances. See, e.g., Pelphrey, 547 F.3d at 1274. And, as discussed below, we need not address the content of Mr. Gundy's invocation to determine that the City Council does exert control over the messages conveyed by invocation speakers. We, therefore, disagree with the district court's conclusion that the control factor did not weigh in the favor of a government speech *nding.

The City Council exerts control over the messages conveyed by invocation speakers because inviting speakers to give invocations inherently exhibits governmental control over the invocation messages from the outset of the selection process. In Mr. Gundy's example, Mr. Gundy was “the literal speaker,” but “he [was] allowed to speak only by virtue of his” being invited by a City Council member. See Turner, 534 F.3d at 355. And while the City Council did not purport to have initial editorial rights over the exact content of the invocations, selecting one speaker over another exhibits control.

Indeed, selecting a sectarian speaker versus a nonsectarian speaker plausibly could lead to different messages conveyed through an invocation. See id. at 354–55 (“[T]he Council itself exercises substantial editorial control over the speech in question, as it has prohibited the giving of a sectarian prayer.”); see also Barker v. Conroy, 921 F.3d 1118, 1132 (D.C. Cir. 2019) (“[The United States House of Representatives’] requirement that prayers must be religious nonetheless precludes [the plaintiff] from doing the very thing he asks us to order [the House] to allow him to do: deliver a secular prayer.”) Taken to the logical extreme, it is plausible that a member of a hate group may give a vastly different invocation than, say, a



7 of 9 10/4/22, 8:14 PM




GUNDY v. CITY OF JACKSONVILLE FLORIDA | FindLaw https://caselaw.findlaw.com/us-11th-circuit/1914096.html




priest or a rabbi. In this sense, the selection process for choosing invocation speakers gives the City Council inherent control over invocations and their messages from the outset, which is why maintaining a selection process and a “prayer opportunity as a whole” that are consistent with the con*nes of the Establishment Clause is so important. See, e.g., Town of Greece, 572 U.S. at 585–86, 134 S.Ct. 1811. Thus, the control factor weighs in favor of deeming Mr. Gundy's invocation government speech.

****

Ultimately, all three factors point to a *nding of government speech. For this reason, we agree with other circuits that have examined the topic of legislative prayer constituting government speech—“[a]t bottom, the [City Council] is the speaker” and Mr. Gundy's invocation is government speech. See, e.g., Fields, 936 F.3d at 158; see also Morris Cnty. Bd. of Chosen Freeholders v. Freedom From Religion Found., ––– U.S. ––––, 139 S. Ct. 909, 910–11, 203 L.Ed.2d 425 (2019) (Kavanaugh, J., respecting denial of cert.) (citing Marsh and County of Allegheny to distinguish case being denied certiorari from instances “where the government itself is engaging in religious speech, such as a government-sponsored prayer or a government-sponsored religious display”). We *nd support for this position in the fact that a private speech and forum analysis would place this Court in the precarious position of comparing the contents of one invocation to another to determine whether any restriction on the delivery of an invocation was applied in an arbitrary or haphazard manner, as the district court did when it conducted such analysis and compared the contents of Mr. Gundy's invocation to those of Dr. Louh's invocation. In sum, Mr. Gundy's invocation before the City Council is government speech, con*ned by the bounds of the Establishment Clause. See Summum, 555 U.S. at 468, 129 S.Ct. 1125.

B. Mr. Gundy's Appeal Must Fail

Mr. Gundy brought claims under the Free Speech and Free Exercise Clauses of the United States Constitution. He did not bring a claim under the Establishment Clause. And since his invocation constitutes government speech, his speech is “not susceptible to an attack on free-speech[ ] [or] free-exercise . grounds.” Fields, 936 F.3d at 163; accord Simpson, 404 F.3d at 288 (“[T]he standards for challenges to government speech . require that [the plaintiff's free speech and free exercise claims] must be rejected.”). As such, this Court need not turn to the factors articulated in Pelphrey—namely, weighing (1) the identity of the invocation speaker, (2) the process by which the invocation speaker is selected, and (3) the nature of the prayer—and potentially parse through Mr. Gundy's invocation to determine if the Establishment Clause has been violated.

IV. CONCLUSION

While we hold that the district court erred in deeming Mr. Gundy's invocation to be private speech in a nonpublic forum, we AFFIRM the district court's orders on the alternative ground that the invocation constitutes government speech, not subject to attack on free speech or free exercise grounds.

AFFIRMED. FOOTNOTES

1. This opinion refers to the City of Jacksonville, Florida, as the “City” and to the Jacksonville City Council as the “City Council.”

2. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
3. The district court found that the Bowman Memorandum could not be seen as a municipal policy under the Monell

doctrine because the Bowman Memorandum “was not in effect when [Mr. Gundy] gave his invocation.”

4. “Florida's courts have treated the Free Speech and Free Exercise Clauses of the Florida Constitution as being coextensive with those embodied in the United States Constitution, and have adopted the same principles and methods of analysis.” Cambridge Christian, 942 F.3d at 1228 n.2; see also Cafe Erotica v. Fla. Dep't of Transp., 830 So. 2d 181, 183 (Fla. Dist. Ct. App. 2002) (“The scope of the Florida Constitution's protection of freedom of speech is the same as required under the First Amendment. . Thus, this [c]ourt applies the principles of freedom of speech as announced in the decisions of the Supreme Court of the United States.”); Toca v. State, 834 So. 2d 204, 208 (Fla. Dist. Ct. App. 2002) (applying the same analysis when reviewing claims under the Free Exercise Clause of the United States Constitution and the Florida Constitution). For this reason, we proceed by addressing Mr. Gundy's claims under the United States Constitution, and our analysis applies in full to Mr. Gundy's claims under the Florida Constitution.

5. The Free Speech, Free Exercise, and Establishment Clauses of the First Amendment have been incorporated, via the Fourteenth Amendment, to apply to the States and their subdivisions. See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Schneider v. Town of Irvington, 308 U.S. 147, 160, 60 S.Ct. 146, 84 L.Ed. 155 (1939).

6. We note decisions from other circuits concluding that legislative prayer constitutes government speech, not private speech, for purposes of the First Amendment. Simpson, 404 F.3d at 288 (concluding that invocation before county board of supervisors constituted government speech subject only to the con*nes of the Establishment Clause under the First Amendment); id. at 289 (Niemeyer, J., concurring in judgment) (“[W]hen members of a governmental body participate in a prayer for themselves and do not impose it on or prescribe it for the people, the religious liberties secured to the people by the First Amendment are not directly implicated, and the distinct, more tolerant analysis articulated in Marsh governs.” (emphasis in original)); Turner v. City Council of City of Fredericksburg, 534 F.3d 352 (4th Cir. 2008) (O'Connor, J., retired and sitting by designation) (explaining that, because legislative prayer opening each city council session constituted government speech, free speech and free exercise rights of council member, who had challenged the policy requiring the opening prayer to be nondenominational, were not violated); Fields, 936 F.3d at 147 (stating that, for claims arising under “Free Exercise, Free Speech, and Equal Protection Clauses,” “legislative prayer is government speech not open to attack via those channels”); see also Ctr. for Inquiry, Inc. v. Marion Cir. Ct. Clerk, 758 F.3d 869, 874 (7th Cir. 2014) (noting that Marsh and Town of Greece concern “what a chosen agent of the government says as part of the government's own operations,” but “do not concern how a state regulates private conduct” (emphasis in original)).

Lagoa, Circuit Judge:

Monday, October 03, 2022

Collaborators and the Russo-Ukrainian War--"Ukraine appreciates people, saves people – these are fundamental rules for our state" – address by President Volodymyr Zelenskyy (3 October 2022)

 

Pix Credit here

 

Pix Credit here
The issue of collaborators remains a sensitive one all over the world.  Its contemporary narrative  narrative orthodoxy was framed in the aftermath of the defeat of the Axis Powers in 1945.  But much of that baseline has come into question in this century, especially with respect to the issue of paralleling brutality and gendered violence. Nonetheless, the core of the concept remains strongly appealing, and its legitimacy remains substantially uncontested.  It is in the details of its application, and the methods of its punishments that requires some substantial care--if only to avoid the appearance that the punishments of the victors begins to resemble the barbarities of aggressors. It is in that context for example, that the gendered context of the punishment of women accused of performing services for or involving themselves in more intimate relationships with German occupying forces has begun to be reexamined in a contemporary light--at its best not necessarily to condemn an age and a context in which its participants are now nearly all dead and the immediacy of the context lost, but as a guide to reframing notions of collaboration and punishment to better align with the evolution of cultural and normative attitudes in this historical era.

The law of collaboration, and the mechanics of its investigation, and punishment, will likely break new ground.  These efforts will be developed under the shadow of an international human rights regime substantially different from that of the late 1940s.  It is for that reason that the issue now merits some attention--during the stage in which the law is formulated, the process of investigation and trials are developed, and the normative foundations are created. A strong and strongly human rights oriented legality of collaboration and its punishment will make a substantial difference to Ukraine. It will have an impact on its standing within Europe and in the context of its application for membership in the EU and NATO.

It is with that in mind that one might read the text of an address delivered by President Zelenskyy of 3 October 2022: Ukraine appreciates people, saves people – these are fundamental rules for our state – address by President Volodymyr Zelenskyy. The address follows below.  Its most interesting insight is contained in this portion of the address:

This is actually very important. Russian propagandists intimidate people in the areas still under the control of the occupiers that Ukraine will allegedly consider almost everyone who remains in the occupied territory as collaborators. Absolute nonsense.

Our approach has always been and remains clear and fair. If a person did not serve the occupiers and did not betray Ukraine, then there is no reason to consider such a person a collaborator. These are elementary things. If the teacher remained a Ukrainian teacher and did not lie to the children about who is the enemy... Or if a person remained a Ukrainian employee of the Ukrainian utilities service and, for example, helped preserve the energy supply for people, then such a person cannot be blamed for anything.

Hundreds of thousands of our people were in the temporarily occupied territory. Many helped our military and special services. Many simply tried to survive and waited for the return of the Ukrainian flag. Of course, there were those who betrayed Ukraine. But such cases are quickly established by the Security Service of Ukraine and are not massive. Russia did not meet mass support in Ukraine, and this is a fact. (Zelenskyy, Ukraine appreciates people, saves people , supra).

 Of course, the test will come not in the construction of a narrative cage to legitimate collaboration prosecutions, but in the legal structures developed to apply its objectives fairly and within the expectations of internationally recognized human rights.  The Institute for War and Peace Reporting has produced a nice summary of the current state of the law of collaboration in Ukraine: 

Article 111 of the Criminal Code of Ukraine (CCU) addresses collaborationism, as it defines high treason as an act wilfully committed by a citizen of Ukraine that can include joining the enemy under martial law or armed conflict, espionage, assistance in subversive activities against Ukraine provided to a foreign state, a foreign organisation or their representatives. . . .  Ukraine’s criminal system did not have provisions about collaborationism until March this year. Drafts to criminalise collaborationism were presented by lawmakers in 2017, 2019 and 2021, but they were unsuccessful.

Until March 2022, collaborationism was prosecuted under three articles of the CCU. Under these provisions there are 96 open investigations under Article 109, about actions aimed at forceful change or overthrow of the constitutional order or takeover of government. A further 8,567 investigations are ongoing under Article 110, which regulates trespass against Ukraine’s territorial integrity and inviolability. An additional 1,544 investigations are open under Article 111, about high treason. (Ukraine’s Plan to Prosecute Collaborators--Interview with Mykyta Petrovets, a lawyer at the Kyiv-based Regional Centre for Human Rights (6 September 2022)).

This changed with the start of the Russian invasion and the addition of two key provisions:

On March 15 2022, the CCU was updated with article 111-1 to prosecute “collaborative activity”. It aims to criminalise acts that facilitate Russian aggression and armed conflict against Ukraine and “to ensure fair punishment for persons that cooperate with an aggressor-state and to deprive them the right to occupy certain positions or engage in certain activities”.

On April 23 2022, the CCU was updated with article 111-2. The Accessory to Aggressor-State article aims to criminalise support to Russia in carrying out aggression and armed conflict against Ukraine and “to ensure fair punishment for accessory to aggressor-state and to deprive the right to occupy certain positions or engage in certain activities”. (Ukraine’s Plan to Prosecute Collaborators).

The possibilities of an overbroad and punitive application of the provisions may present a challenge.  As detailed in the interview it might be possible to read these provisions in light of the CCU’s Article 40 details exceptions to a criminal action because of physical violence or mental coercion. But this is new legal territory. 

Equally important will be the way that the new law will be applied not to individuals (the expected focus of prosecution) but to business enterprises.  In that case, guidance of the UN Guiding Principles for Business and Human Rights, and especially the application of the principles to conflict zones may provide a framework for interpreting and applying Ukrainian statutes. Indeed, it is to be hoped that the UNGPs may be useful in developing a human rights sensitive jurisprudence of collaboration that extends beyond individuals to enterprises.  Here the principles of complicity may be useful (discussed inThe Russian Invasion of Ukraine and Business: Responsibility, Complicity and the Responsibility to Respect Human Rights Under the UN Guiding Principles for Business and Human Rights).

The challenge for Ukraine will be to make good on President Zelenskyy's core principle--that the collaboration statutes ought to be tied to the fundamental principle of substantial betrayal that evidences positive acts not merely of renunciation of past allegiances but positively evidences active support of the forces of the invader in ways that substantially damage either the state or the welfare of the people. More telling will be the ability of Ukrainian authorities to prevent collaboration to be used by people (or officials) to settle old private score under cover of these provisions.  A big challenge but the first step has already been taken.

The text of Mr. Zelenskyy's speech in English, Ukrainian, and Russian follows.