Constitutional Civil Rights - John Sanchez

• Jurisdiction: United States,Federal
• Publication year: 2003
• Citation: Vol. 54 No. 4

Constitutional Civil Rightsby John Sanchez^*

I. Introduction

The 2002 survey period was an average year for constitutional civil rights litigation in the Eleventh Circuit. In eleven cases, the court addressed contentious issues arising under the First Amendment. Nine of those cases examined free speech issues, while one case involved the Press Clause and one involved freedom of religion. One case addressed the constitutionality of a city zoning ordinance regulating nude dancing.¹ Three cases involved retaliatory discharges allegedly over the exercise of protected speech: Two cases dealt with public employees' free speech rights,² while one touched on the free speech rights of an independent contractor who had an ongoing commercial relationship with a state agency.³ Another case addressed the constitutionality of state regulation of the free speech rights of judicial candidates.⁴ One case reviewed state electoral code provisions regulating which candidates may be listed on the ballot for federal office.⁵ Two cases covered the legal intersection between the law of defamation and the First Amendment.⁶ One case spelled out the powers of a court to discipline attorneys for use of offensive language in court documents.⁷ One case involved the right of motion picture companies to portray real individu- als, without their consent, in movies based on real events.⁸ Finally, a federal district court exhaustively reviewed, under the Establishment Clause,⁹ the power ofa state supreme court chiefjustice to install a two-and-one-half ton monument depicting the Ten Commandments in the rotunda of the state judiciary building.¹⁰

II. First Amendment

A. Free Speech

1. Nude Dancing. In Gary v. City of Warner Robins,¹¹ the United States Court of Appeals for the Eleventh Circuit addressed the constitutionality of a city ordinance barring persons under the age of twenty-one from entering or working at places selling two-thirds more alcohol than food.¹² The court affirmed the district court's decision to grant summary judgment to the city,¹³ concluding that the ordinance did not violate fundamental freedoms of association or movement,¹⁴ which might have triggered strict scrutiny; that the ordinance was rational under the Equal Protection Clause;¹⁵ and that the ordinance did not violate the dancer's freedom of expression.¹⁶

Plaintiff, while under the age of twenty-one, worked at Teasers as a nude dancer. Teasers is an adult entertainment establishment that sells alcohol, but not food. After the city amended its ordinance to bar minors from working in establishments that sell alcohol for consumption on the premises, plaintiff unsuccessfully sued the city for damages and injunctive relief. After discovery, the district court granted summary judgment for the city.¹⁷

On appeal, the Eleventh Circuit applied rational basis analysis to plaintiff's Equal Protection claim because the age classification framed by the ordinance implicated neither a fundamental right nor a suspect class.¹⁸ While acknowledging that freedom of association is a fundamental right, the court concluded that there is no generalized right to associate with other adults in alcohol-selling businesses.¹⁹ Moreover, plaintiff remained free to observe and engage in nude dancing in businesses that sold more food than alcohol. Citing the city's aim to curb underage drinking, a legitimate governmental interest, the court deferred to the city and rejected plaintiff's Equal Protection claim.²⁰

The second issue the court addressed was plaintiff's claim that the ordinance interfered with her First Amendment right to engage in nude dancing. While conceding that nude dancing "falls only within the outer ambit of the First Amendment's protection,"²¹ the court rejected plaintiff's First Amendment claim, again making it clear that the ordinance did not prevent plaintiff either from observing or from engaging in nude dancing.²²

2. Public Employee Speech—Retaliatory Discharge. In

Matthews v. Columbia County,²³ the Eleventh Circuit addressed whether the dismissal of a county employee was in retaliation for the employee exercising her free speech rights.²⁴ The district court entered judgment on the jury verdict for plaintiff.²⁵ Affirming in part, reversing in part, and remanding, the court of appeals ruled that the county was relieved of liability because only one of the county commissioners who voted to eliminate plaintiff's job evinced an unconstitutional motive.²⁶

Plaintiff, Director of Administrative Services for the county, criticized a company with which the county was considering contracting. Later, the county Board of Commissioners voted 3-2 to eliminate several county positions, including plaintiff's job. While plaintiff sued the three commissioners who voted to eliminate her job both in their official and individual capacities, the individual defendants won on grounds of legislative immunity, leaving the county as sole defendant. The jury held the county liable for emotional distress damages because two commissioners had been influenced by the third commissioner, whose vote to eliminate plaintiff's job was cast in retaliation for plaintiff's protected speech activity.²⁷

The county appealed both the district court's finding of liability and its award of emotional distress damages. Plaintiff cross-appealed the dismissal of the suits against the commissioners in their individual capacities.²⁸ The Eleventh Circuit concluded that even if plaintiff's speech was protected by the First Amendment, the district court erred in holding the county liable solely for the improper motives of one commissioner.²⁹ The court rejected plaintiff's claim that the unconstitutional motive of one commissioner could be imputed to the board as a whole either on grounds of a ratification or a delegation theory.³⁰ For ratification to have applied, the two commissioners who voted to eliminate plaintiff's job would have had to "ratify not only the decision itself, but also the unconstitutional basis for it."³¹ Influence alone, the court ruled, is insufficient grounds to show that the two commissioners ratified the unconstitutional basis for the vote.³² As for the delegation theory, the court concluded that even if the improperly motivated commissioner was assigned the power to select the posts to be eliminated, "his [decision] still had to be accepted by a majority of the board."³³ In sum, the county could not be liable unless all three commissioners who voted to eliminate plaintiff's position shared the illegal motive.³⁴

In Brochu v. City of Riviera Beach,³⁵ the Eleventh Circuit employed the Pickering³⁶ balancing test to decide whether a public employee who alleged he was terminated in retaliation for exercising his First Amendment rights had proved his case.³⁷ Reversing the district court, the Eleventh Circuit ruled that (1) plaintiff's transfer was not retaliatory, but mere coincidence;³⁸ (2) plaintiff's scheme to oust the sitting police administration and place himself and his cronies in control was not protected public speech;³⁹ and (3) the city's offer to reinstate plaintiff was not binding.⁴⁰

Plaintiff, a police officer, was enlisted by a fellow officer to assist the FBI with its probe into alleged police department corruption. At the same time, plaintiff was subpoenaed for a deposition in a lawsuit against the police department. At the deposition, plaintiff testified critically about the police department. Three days later, plaintiff was transferred to the midnight shift of road patrol. This transfer did not affect plaintiff's rank or salary, but his new shift was less prestigious and came with fewer benefits. Moreover, plaintiff was enlisted by the local police union representative to support candidates in city council elections who were dedicated to removing the police chief. After the police chief learned of the plan, plaintiff was placed on paid administrative leave. Alleging harassment, plaintiff resigned and sued the city instead of seeking either administrative remedies or grieving his claims.⁴¹

The district court granted the city's motion for summary judgment on all counts except the Title VII⁴² retaliation claim and the Sec. 1983⁴³ First Amendment claim. The jury awarded plaintiff $2,000 on his Title VII retaliation claim and $450,000 on his First Amendment claim. The district court also found that the city offered unconditional reinstatement to plaintiff, and the court ordered the city to assign plaintiff as commander of the detective bureau.⁴⁴

On appeal, the Eleventh Circuit first addressed the Title VII retaliation claim in which plaintiff must establish "'that (1) [he] engaged in . . . statutorily protected expression; (2) [he] suffered an adverse employment action;'"⁴⁵ and (3) the two events are causally related.⁴⁶ Crediting the police chief's testimony that he was unaware of plaintiff's critical testimony in the deposition, the court concluded that no reasonable jury could find that the police chief transferred plaintiff in retaliation for his deposition testimony.⁴⁷ "The coincidence in timing [was] simply not enough."⁴⁸ For these reasons, the court reversed both the judgment and the award of damages on the Title VII retaliation claim.⁴⁹

Turning to plaintiff's First Amendment claim, the Eleventh Circuit set out the four-part Pickering test. First, the court determined whether the employee's speech was on a matter of public concern by looking at the content, form, and context of the speech.⁵⁰ While conceding that speech concerning public corruption and mismanagement might be a matter of public concern, the court concluded that plaintiff's role in the scheme to oust the entire police administration and put himself in charge was not protected by the First Amendment.⁵¹ Even assuming that plaintiff's speech touched on a matter of public concern, the court concluded that plaintiff failed the second part of the Pickering test: balancing the employee's right to engage in protected...