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Changing Landscape of Public Employee Free Speech in Florida

Labor and Employment Law

The free speech rights of public employees have evolved considerably over the years. In 1892, then-Judge, later Justice, Oliver Wendell Holmes, Jr., wrote, in a famous passage dismissing the case of an officer fired for speaking his mind, “[t]he petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”[1]

Over many years, in bits and pieces and through many twists and turns, American courts have come to recognize First Amendment protections for government employees in many contexts. Those protections found their modern formulation in 1968 in Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968). There, the Supreme Court established a balancing test that weighs the right of speech on a matter of public concern against the needs of an employer to run an orderly government operation.[2]

A refinement of the Pickering test came in Connick v. Myers, 461 U.S. 138, 150 (1983), in which the Court limited First Amendment protection to speech made on matters of public concern. Speech made in one’s personal or private interest is not protected.[3] The most recent refinement came in 2006 in Garcetti v. Ceballos, 547 U.S. 410 (2006), which removes all First Amendment protection for any speech made as part of a public employee’s job, regardless of public interest.

The Pickering Court acknowledged the fact that government agencies cannot function if supervisors have no control over what their employees communicate on duty in their official capacity.[4] Accordingly, the Court found no First Amendment protection for speech made in the course of duty in the role of a government employee.[5] However, off-duty speech made as a citizen is protected so long as it does not disrupt the operations or impair the functioning of the governmental unit that employs the speaker.[6] In creating this balancing test, the Court recognized that there would be close cases and fine distinctions. But the Court required that, to qualify for First Amendment protection, a public employee’s speech would have to be on a matter of public concern.[7]

The Connick refinement established that even speech on matters of public concern can lose protection if the speech is made for the purpose of advancing an employee’s personal interest.[8] Though the work of a prosecutor’s office is always a matter of public concern, the Court held that the work assignments of a particular employee within the office were not.[9] This caused the Court to modify the Pickering test to exclude protection for speech made for the personal benefit of the speaker, regardless of the importance of the general subject.[10]

Garcetti was a 5-4 decision that was hotly contested from the outset. The operating premise appeared to be that whatever a government employee says or writes in the course of official duty is government speech. It follows that the government has the authority to control the content of government speech.

As in Connick, the Garcetti plaintiff, Ceballos, was a prosecutor.[11] Unlike the prosecutor in Connick, Ceballos criticized what he believed was the unconstitutional and unprofessional treatment of a criminal defendant by his office — treatment that likely would pass the Connick test.[12] However, the Supreme Court found the speech unprotected because it was made in the course and scope of the prosecutor’s duties and was, thus, government speech that the employer had the right to control and regulate.[13] The Court distinguished this employee speech from the “citizen” speech that employees made outside the scope of duty.[14] Justice Souter dissented, pointing out conflict with the Court’s academic freedom jurisprudence, which stresses the independence of college faculty to pursue truth wherever it may lead and to disagree with their employers.[15] The majority acknowledged Justice Souter’s concern that “expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence,” and added, “We need not and do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”[16]

That was not the only concern. In two later decisions, the Court substantially expanded the range of what qualified as the sort of “citizen” speech that falls outside the scope of an employee’s job. In the first of these cases, Lane v. Franks, 573 U.S. 228 (2014), the Court reversed the 11th Circuit decision by finding that a fired college administrator spoke as a citizen rather than an employee when he testified in court about matters involving his firing of a state legislator who collected a salary in the plaintiff’s unit without showing up for work. The appeals court upheld the administrator’s firing for his discharge of the offending legislator, citing Garcetti to the effect that the administrator’s speech, including his testimony, was all part of his job and, thus, unprotected by the First Amendment.[17] In reversing, the Supreme Court said, “In holding that Lane did not speak as a citizen when he testified, the [11th] Circuit read Garcetti far too broadly.”[18] A key element of the Court’s analysis is that a factor in deciding whether speech is made as a citizen or as an employee is the degree to which the speech is of public concern, as speech about public corruption clearly is.[19] Another factor is whether the speech is merely about the job or a part of the essential duties of the job. [20] Still, another concern is that the speech may be made both as an employee and as a citizen, and the public importance of the speech may be the deciding factor that pushes the speech to one side of the line or the other.[21] This seems to allow a bit of the Pickering “issue of public concern” to slip back into the Garcetti analysis.

The Supreme Court again revisited Garcetti in Kennedy v. Bremerton School District, 597 U.S. 507 (2022), a case concerning a high school football coach who prayed after games on the 50-yard line and eventually lost his job over it. The Court found First Amendment protection and reversed. As with Lane, the Court was concerned that the scope of duty not be expanded beyond the actual duties and responsibilities of the job. The determination of whether speech is within an employee’s job duties is an inquiry that “should be undertaken ‘practical[ly],’” rather than “with a blinkered focus on the terms of some formal and capacious written job description.”[22] “To proceed otherwise would be to allow public employers to use ‘excessively broad job descriptions’ to subvert the Constitution’s protections.”[23]

Against that backdrop, Garcetti figured prominently in two public employee-related Florida cases in which state entities have argued unsuccessfully for unprecedented control over employee expression.

Suspending a Prosecutor — Warren v. DeSantis

Gov. Ron DeSantis suspended 13th Judicial Circuit State Attorney Andrew Warren, alleging that Warren was a “woke” prosecutor because of his progressive policies and advocacy. Warren sued on First Amendment grounds. The federal district court, in an opinion otherwise highly favorable to Warren, denied reinstatement. The trial court found that, though two of the six reasons DeSantis cited for the suspension violated the First Amendment, DeSantis would have suspended Warren anyway because of the other four reasons. The 11th Circuit reversed and remanded, finding that four of the reasons cited by DeSantis, not just two, violated the First Amendment, and, accordingly, directed the trial court to reconsider reinstatement in light of those findings.[24]

The six factors are: 1) Warren’s political affiliations with the Democratic Party and George Soros; 2) Warren’s criminal justice reform advocacy, including the advocacy statements he signed; 3) a single sentence in an abortion statement Warren signed committing to refrain from prosecuting abortion cases; 4) Warren’s adoption of a low-level offense policy and the bike policy; 5) Warren’s approach and performance as a reform prosecutor; and, 6) DeSantis’ anticipated political benefit from suspending a progressive prosecutor.[25] The trial court found the first two factors to violate the First Amendment; the second two to be pretexts to justify suspension under the Florida Constitution, but not First Amendment violations; and the last two to be unprotected.[26] The 11th Circuit disagreed, finding additional First Amendment protection for Warren’s statement of declination to prosecute abortion cases and DeSantis’ motive to gain political benefit from bringing down a reform prosecutor.[27]

A striking feature of the governor’s argument is the extent to which it treated Warren as an employee of the governor and, thus, subject to the First Amendment strictures of Garcetti. From the outset, the appeals court noted that application of Garcetti to elected officials is “suspect.”[28] Elected officials do not exercise control over other elected officials. A governor’s limited authority to suspend a state attorney does not an employment relationship make.[29] But even if Garcetti applied, the court concluded that Warren spoke as a citizen rather than as a government employee.[30] The subjects at issue, abortion and transgender rights, are obviously matters of public concern.[31] That being so, the controlling factor was whether 
Warren’s advocacy was part of his official duties. It clearly was not.[32] Nothing in the Florida Constitution nor any other law defining the job of a state attorney requires signing advocacy statements.[33] In so holding, the court cited Lane as well as a circuit precedent, King v. Bd. of Cty. Comm’rs, 916 F.3d 1339, 1346 (11th Cir. 2019). The notion that a statement is not just a discretionary part of a job, but an actual requirement of a job before it loses protection is a stronger First Amendment protection — and one that the Supreme Court in Lane and Kennedy seem to mandate, along with these two 11th Circuit cases. Needless to say, an otherwise discretionary statement that disrupts the workplace loses protection.

Warren involves a fact scenario that lawyers will rarely encounter, but the case has nonetheless laid down some generally applicable principles that are broadly useful.

The Stop-WOKE Act

The legislation passed by the Florida Legislature as House Bill 7 is named the Individual Freedom Act, but the legislation includes several of the provisions advanced by Gov. DeSantis in the Stop WOKE Act (Stop Wrongs to Our Kids and Employees Act or the act), which is a name that continues to be commonly used to refer to the law. The pertinent parts of the act are codified in the Florida Educational Equity Act (FEEA) at F.S. §1000.05(4)(a), and in the Florida Civil Rights Act (FCRA) at F.S. §760.10(2). The former statute applies to colleges and schools, the latter to workplaces. Employee rights are implicated in both. Each of the laws identifies the following eight forbidden concepts:

1) Members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex.

2) A person, by virtue of his or her race, color, national origin, or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

3) A person’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex.

4) Members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex.

5) A person, by virtue of his or her race, color, national origin, or sex bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin, or sex.

6) A person, by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.

7) A person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin, or sex.

8) Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, national origin, or sex to oppress members of another race, color, national origin, or sex.

Under FEEA, it is unlawful discrimination “to subject any student or employee to training or instruction that espouses, promotes, advances, inculcates, or compels such student or employee to believe” any of the eight concepts. An offending teacher or professor may be disciplined by the school or sued by an aggrieved student. The FCRA makes “subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe” any of the eight concepts actionable discrimination. The FEEA provisions are aimed mostly at teaching, while the FCRA provisions are aimed at mandatory human resources training.

Chief Judge Mark Walker enjoined enforcement of both statutes, the FEEA wing in Pernell v. Florida Board of Governors of State University System, 641 F. Supp. 3d 1218 (N.D. Fla. 2022), and the FCRA wing in, Inc. v. DeSantis, 622 F. Supp. 3d 1159 (2022), affirmed, Honeyfund.Com Inc v. Governor of Florida, — F.4th —, 2024 WL 909379 (11th Cir. Mar. 4, 2024).

Some of the defense arguments in Pernell were notably bold and far-reaching. It was perhaps only a matter of time before some state actor somewhere advanced a reading of Garcetti that allowed a state to assert that a professor’s classroom presentation was government speech and could therefore be regulated to permit only the official government viewpoint to be expressed. The court rejected this contention, noting that it derived from “cherry-picking language, devoid of context.”[34] The court noted that Garcetti itself reserved First Amendment protection for “expression related to academic scholarship or classroom instruction.”[35]

The defense also compared the act’s purported protection of “conservative” students’ political sensibilities to the protections against hostile environment in Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. The court pointed out that Title VII and Title IX target harassing conduct and only incidentally affect speech while the act does the opposite — targeting expression of eight forbidden concepts and only incidentally burdens conduct.[36] Moreover, while it can be mostly speech that creates hostile environments under federal antidiscrimination laws, this is only so “when such speech is both objectively and subjectively offensive and when it is sufficiently severe or pervasive.”[37]

The court’s strongest reason for the unconstitutionality of the statute was viewpoint discrimination. While it is constitutionally acceptable for a state to regulate the content of instruction — for example, whether to have a certain course, it is not acceptable to forbid the expression of certain viewpoints about that subject. Under the act, the eight identified concepts may be criticized or condemned or discussed in a neutral or objective manner, but never discussed with approval. That is “rank viewpoint discrimination” and is a plain violation of the First Amendment.[38]

At both the district and circuit levels, the Honeyfund analysis of the anti-WOKE law’s application through FCRA is similar to that in Pernell, though in at least one respect the First Amendment interest is stronger because the plaintiffs are all private actors, so Garcetti does not apply at all because no government speech is involved. The plaintiff companies saw the law as simply a case of government telling private businesses how to run their human resource programs under the guise of protecting conservative employees from EEO education. Judge Walker, in turn, saw the law as “a naked viewpoint-based regulation on speech that does not pass strict scrutiny,” that had to be enjoined.[39] The appeals court was also colorful on this point, “by barring only speech that endorses any of those ideas, [the law] penalizes certain viewpoints — the greatest First Amendment sin.”[40]

The 11th Circuit took care to caution that “nothing in this opinion should be construed as addressing” the identical FEEA amendments that are the subject of the appeal pending before that court in Pernell.[41] That, perhaps, augers at least a minor confusion about the application of FCRA to government employees not employed by colleges and schools. For those employees, the application of Garcetti is especially critical. The 11th Circuit ignored that body of law in its opinion in Honeyfund because no public employee or entity was a plaintiff. Those employees are likewise unlikely to be treated in the eventual Pernell opinion because they do not work for colleges or schools and are, thus, not subject to FEEA.

Both levels of court found obvious viewpoint discrimination arising from the fact that the law permits mandatory employee training that condemns the eight concepts identified in the statute, but forbids training that endorses those concepts.[42] The state also raised the same “hostile environment” analogy discussed above in Pernell. The two levels of court rejected it for the same reasons. The appeals court traced its history of “special caution when applying Title VII to matters involving traditionally protected areas of speech.”[43] The act failed to meet that exacting test. The court gave short shrift to what it characterized as the state’s “desire to protect the ears of its residents,” noting, “Banning speech on a wide variety of political topics is bad; banning speech on a wide variety of political viewpoints is worse.”[44]

The state defendants’ appeal in Pernell remains pending. Judge Walker denied a motion for stay of the injunction in that case. The state defendants appealed the denial of stay. The court of appeals denied the stay, so the injunction remains in effect.[45]

The Standing Conundrum

As the trend accelerated in the 1980s for federal courts to decline cases involving constitutional rights on grounds of standing, the late Professor Steven G. Gey told his law students at Florida State University that the Rehnquist court was moving civil liberties from Con Law II back to Con Law I. For the uninitiated, the quip referenced how the curriculum of law schools treats the substance of civil liberties in Con Law II and treats issues of federal jurisdiction such as mootness, ripeness, and standing in Con Law I. Cases treated under Con Law I doctrines are more likely to be dismissed without consideration of the merits.

Standing has been an obstacle to decisions on the merits from the beginning of the republic, and rightly so in its proper conception. But our jurisprudence has also, from its beginning, recognized the harm from contriving falsely a lack of standing as a tool for a refusal to enforce a right. No less an icon than Chief Justice John Marshall said:

It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful.[46]

Chief Justice Marshall went on to add:

With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.[47]

He finished with this flourish: “Questions may occur which we would gladly avoid; but we cannot avoid them.”[48]

More recently, four justices of the Supreme Court excoriated the failure to recognize standing in a case involving a Texas anti-abortion law that appeared to be deliberately designed to use standing to escape review of what was then violation of an established right.[49]

Still, Chief Judge Walker, who granted standing to more DeSantis-era constitutional challenges than any other judge, discussed the difficulties and frustrations of having to follow “the ever-evolving standing jurisprudence that binds this Court.”[50]

The standing jurisprudence that has come down to us since roughly the 1980s is simply deplorable. One reading through the body of DeSantis-era civil liberties law cannot help but notice how maddeningly tedious and meticulous are the regimens the judges must go through, analyzing the standing of each plaintiff for each count of each complaint. One marvels at the word count added to cases such as Pernell or Honeyfund. One also looks at the cases that did not pass the standing test to see how the call could have gone either way in cases such as Link v. Diaz, 669 F. Supp. 3d 1192 (N.D. Fla. 2023), or Falls v. DeSantis, 4:22cv166, 2022 WL 2303949, 609 F. Supp.3d 1273 (N.D. Fla. 2022). The Honeyfund court explained why the plaintiffs in that case survived a standing challenge while the Falls plaintiff did not.[51] The distinction was between those who had already lost business from the anti-WOKE prohibitions versus those who saw the losses coming but had not yet suffered them. Compare that with the body of pre-deprivation First Amendment remedies in every circuit and one must lament that our standing jurisprudence has consigned some of our profession’s best legal minds to separating gnat droppings from black pepper. Perhaps the worst of it is that the body of precedent is so tangled a web that a judge can push many a result in either direction for a desired outcome. Even when that does not happen, the suspicion arises and court credibility suffers.

A good illustration occurred when a storm of criticism descended on the decision finding no standing for the challenge to the law known as, “Don’t Say Gay.”[52] Yet, an article in an LGBT law journal faulted the team bringing the challenge for not doing a better job of plaintiff selection and injury assessment.[53] The incorrect findings on lack of standing spill over to contaminate even the correct ones. This in no small part stems from the existence of controlling precedents formed for questionable purposes.

Non-employment Related Free Speech Cases

The focus of this article is on public employee rights cases in the DeSantis era. A focus on general employee rights or free speech cases in general is another subject for another day. However, these subjects bleed into one another enough that a few other major cases are worthy of mention here.

Perhaps the most controversial outcome of the DeSantis-era cases was the decision, now on appeal, to deny relief to the Disney empire on what many consider a blatantly obvious First Amendment violation.[54] The case is on appeal.

Another high-profile case arose from a statute barring minors from drag shows. A well-known Orlando establishment called Hamburger Mary’s sued under the First Amendment and secured an injunction against enforcement of the statute.[55] The state appealed and, by separate motion, sought a stay of the injunction. With the merits appeal still pending, a divided 11th Circuit upheld denial of the stay.[56] Undaunted, the state petitioned the Supreme Court for the stay. With three dissents, the Supreme Court also denied the stay.[57] At least for now, the law is not enforced.

On February 26, 2024, the Supreme Court held oral argument on a case in which a Florida statute sought to prohibit larger social media platforms from barring or disadvantaging speech by political candidates. The legislature and governor regarded this editing as liberal bias against conservative speakers. A federal court enjoined the law on First Amendment grounds.[58] The appeals court affirmed the injunction.[59] Because of a conflict with a Fifth Circuit holding, the Supreme Court granted certiorari. The case is fully briefed and orally argued and awaits decision.


In public employee free speech cases and in other free speech cases in the DeSantis era, most plaintiffs who get decisions on the merits are successful. However, getting past standing requirements to achieve a decision on the merits has been difficult in many cases. Numerous cases have failed in which the injuries were anticipatory rather than actual. Plaintiffs who wait to suffer injury instead of suing to prevent it have a better chance of a decision on the merits. Some uses of standing to impede decision on the merits are of questionable constitutional legitimacy.

[1] McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892).

[2] Pickering, 391 U.S. at 563.

[3] See Connick, 461 U.S. at 147.

[4] See Pickering, 391 U.S. at fn. 3.

[5] See id.

[6] See id.

[7] See id. at 574.

[8] See Connick, 461 U.S. at 147.

[9] See id. at 154.

[10] See id. at 147.

[11] Garcetti, 547 U.S. at 413.

[12] See id. at 413-14.

[13] Id. at 426.

[14] Id. at 424.

[15] See id. at 427-44.

[16] Id. at 425.

[17] Lane, 573 U.S. at 235.

[18] Id. at 239.

[19] Id. at 238.

[20] Id. at 239-240.

[21] Id. at 240-241.

[22] Kennedy, 597 U.S. at 529 (quoting Garcetti, 547 U.S. at 424).

[23] Id.

[24] Warren v. DeSantis, 90 F.4th 1115 (2024).

[25] Warren, 90 F.4th at 1125.

[26] Id. at 1126.

[27] Id. at 1127-8.

[28] Id. at 1129.

[29] Id. at 1130.

[30] Id. at 1131.

[31] Id. at 1131.

[32] Id.

[33] Id.

[34] Pernell, 641 F. Supp. 3d at 1238.

[35] Id. at 1240.

[36] Id. at 1274.

[37] Id.

[38] Id. at 1272.

[39] Honeyfund, 622 F. Supp. 3d at 1168.

[40] Honeyfund, 2024 WL 909379, at *3.

[41] Id. n.1.

[42] Honeyfund, 622 F. Supp. 3d at 1175.

[43] Honeyfund, 2024 WL 909379, at *8.

[44] Id. at *6.

[45] Pernell v. Board of Governors, 2023 WL 2543659 (11th Cir. Mar. 16, 2023).

[46] Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821).

[47] Id.

[48] Id.

[49] Whole Woman’s Health v. Jackson, — U.S —, 142 S. Ct. 522, 543-45, 211 L. Ed. 2d 316 (2021) (Roberts, C.J., concurring in part and dissenting in part).

[50] Link v. Diaz, 669 F. Supp. 3d 1192 (N.D. Fla. 2023).

[51] Honeyfund, 622 F. Supp. 3d at 1173.

[52] M.A. v. Florida State Board of Education, 2023 WL 2631071 (N.D. Fla. Feb. 15, 2023).

[53] Corey L. Gibbs, Where Does It Hurt?: Northern District of Florida Dismisses Challenge to “Don’t Say Gay,” LGBT L. Notes 8 (Mar. 2023).

[54] Walt Disney Parks and Resorts U.S., Inc. v. DeSantis, 2024 WL 442546 (N.D. Fla. Jan. 31, 2024).

[55] HM Florida-ORL, LLC v. Griffin, — F. Supp. 3d —, 2023 WL 4157542 (M.D. Fla. June 23, 2023).

[56] HM Florida-Orl, LLC v. Governor of Florida, 2023 WL 6785071 (11th Cir. Oct. 11, 2023).

[57] Griffin v. HM Florida-ORL, LLC, 144 S. Ct. 1 (2023).

[58] NetChoice, LLC v. Attorney General, Florida, 546 F. Supp. 3d 1082 (N.D. Fla. 2021).

[59] NetChoice, LLC v. Attorney General, Florida, 34 F.4th 1196 (11th Cir. 2022).

Richard (Rick) E. Johnson is board certified in labor and employment law, and represents the employee side in labor and employment cases and severance agreements and in cases involving state and federal constitutional rights, as principal of a Tallahassee law firm. He graduated with honors from Florida State University College of Law. He served six years on the Bar’s Labor and Employment Law Certification Committee, two as chair. He’s been on the Labor and Employment Section executive council since 2008. Johnson is co-founder and past president of the Florida Chapter, National Employment Lawyers Association, and frequently presents on employment law and civil rights topics.

This column is submitted on behalf of the Labor and Employment Law Section, Sacha Dyson, chair, and Alicia Koepke, editor.

Labor and Employment Law