Reginald L. Gundy v. City of Jacksonville, Florida ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11298
____________________
REGINALD L. GUNDY,
Plaintiff-Appellant,
versus
CITY OF JACKSONVILLE FLORIDA,
a Municipality of the State of Florida,
AARON L. BOWMAN,
individually,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
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2 Opinion of the Court 21-11298
D.C. Docket No. 3:19-cv-00795-BJD-MCR
____________________
Before LAGOA, BRASHER, and TJOFLAT, Circuit Judges.
Lagoa, Circuit Judge:
This appeal arises from a legislative invocation given by an
invited, guest speaker before the opening of a Jacksonville City
Council meeting.1 It centers on the unique role of legislative invo-
cations in our country’s history and tradition, the First Amend-
ment, 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 dis-
miss 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 consti-
tutes 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.
1 This opinion refers to the City of Jacksonville, Florida, as the “City” and to
the Jacksonville City Council as the “City Council.”
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21-11298 Opinion of the Court 3
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 sol-
emnizing its proceedings by allowing for an opening invocation be-
fore each meeting, for the benefit and blessing of the Council.” Un-
der 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 impres-
sion that the legislative body is affiliated, or intends to affiliate, 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 meet-
ing; in accordance with Rule 1.106, “[e]ach council member” is
given an opportunity to invite a speaker from “religious congrega-
tions with an established presence in Jacksonville” to give an invo-
cation. And in line with this directive, Anna Brosche, a City Coun-
cil member and a then-mayoral candidate, invited Reginald L.
Gundy to give the invocation at the March 12, 2019, City Council
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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 cam-
paign, having donated to the campaign and having hosted a cam-
paign 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 Coun-
cil 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, presi-
dent of the City Council at the time, interrupted Mr. Gundy, stat-
ing: “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 finished the invocation
without the benefit of the microphone. With neither incident nor
confrontation, Mr. Gundy left the lectern after the City Council re-
cited the Pledge of Allegiance.
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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 find a pastor that would agree to such a sacri-
legious 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 polit-
ical 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. Bow-
man does not “know it until [he] see[s] it” but, once known, he can
act to prevent an invocation from straying from its purpose as a
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6 Opinion of the Court 21-11298
blessing and proceeding into a political discussion. This is because
Mr. Bowman, as the president of the City Council, has general au-
thority under City Council Rule 1.202 to “control . . . the Council
chamber and committee room and . . . the offices and other rooms
assigned to the use of the Council whether in City Hall or else-
where,” as well as general authority to maintain decorum and dis-
cipline when serving as the presiding officer of meetings under City
Council Rules 4.202(f) and 4.505. Mr. Bowman stated that a politi-
cal attack against “anybody,” including a hypothetical attack
against Ms. Brosche, would be “out of line” and that “[a]ny discus-
sion 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
filed 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, memo-
randum that outlined new procedures for prayer invocations (the
“Bowman Memorandum”).
In his first 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
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21-11298 Opinion of the Court 7
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 vio-
lations 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 . . . sacrile-
gious” and that he felt like his “constitutional rights ha[d] been vi-
olated.” In his amended complaint, Mr. Gundy also noted that Mr.
Bowman did not interrupt a 2018 invocation in which “the pre-
senter 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 rea-
sons” and that the City Council, through the City Council Rules,
policy, and the Bowman Memorandum, maintained a “policy, cus-
tom, 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 (collec-
tively, “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
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8 Opinion of the Court 21-11298
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 sub-
ject to the confines of the Establishment Clause—not the confines
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” invo-
cation “violated the Establishment Clause, much less the Free Ex-
ercise 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 re-
straint 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 set-
ting, the Defendants argued that a restriction on speech is “permit-
ted 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 pro-
vided to communicate one’s speech.” The Defendants argued that
Mr. Bowman’s “restriction was reasonable given the purpose of in-
vocations” and that the restriction “was a proper time, place and
manner restriction in a limited forum meant only for prayer for the
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Council’s benefit at the start of each meeting, in order to control
and keep the meeting orderly.”
In concluding their motion to dismiss, the Defendants ar-
gued that Mr. Bowman was entitled to qualified 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 Defend-
ants’ 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 Flor-
ida Constitution (i.e., Count IV).
As to the claims against Mr. Bowman, the district court
found Mr. Bowman entitled to qualified immunity. In conducting
its qualified immunity analysis, the district court found that “Mr.
Bowman was undoubtedly acting in his official 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
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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 im-
pede 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 Memoran-
dum, 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 lan-
guage” of the Bowman Memorandum “expressly refute[d]” Mr.
Gundy’s allegation that it precluded him from praying as his con-
science 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 individ-
ual from holding or acting in accordance with a sincerely held be-
lief.” Since the district court held that “[l]aws of general applica-
tion,” including those with incidental burdens on religious practice,
do not require justification via a compelling interest, the district
court also held that the City Council’s “interest in maintaining or-
der during its meetings,” coupled with the fact that Mr. Gundy was
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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 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 consci-
entious 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 “sufficiently 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 dis-
cussion about the nature of the speaking forum. Relying on Cam-
bridge Christian School, Inc. v. Florida High School Athletic Ass’n,
Inc., 942 F.3d 1215 (11th Cir. 2019), the district court found the in-
vocation 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 micro-
phone was viewpoint neutral and nondiscriminatory. Thus, the
district court denied the Defendants’ motion to dismiss as to the
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12 Opinion of the Court 21-11298
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 judg-
ment 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 reflect [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 first 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,
2 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
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was “undoubtedly a ‘policy’ for purposes of . . . Monell analysis.” 3
For this reason, the district court examined whether the “City’s re-
striction 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 non-
public forum, the district court found Council Rule 1.202 as “fa-
cially reasonable” when used to enforce “content-based restrictions
on speech to ensure an invocation is preserved for its intended pur-
poses.” 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 dis-
trict court found that “Mr. Bowman’s comment when interrupting
[Mr. Gundy] and the subsequent removal of [Mr. Gundy’s] ampli-
fication 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 deliv-
ered 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 dis-
trict court also credited Mr. Bowman’s testimony about his
3 The district court found that the Bowman Memorandum could not be seen
as a municipal policy under the Monell doctrine because the Bowman Memo-
randum “was not in effect when [Mr. Gundy] gave his invocation.”
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14 Opinion of the Court 21-11298
apolitical intentions when impeding Mr. Gundy as part of “undis-
puted” facts indicating the viewpoint-neutral nature of Mr. Bow-
man’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 evi-
dence” 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 invoca-
tion, which had been identified as the invocation Mr. Gundy refer-
enced 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 invoca-
tion, while “somber and reflective in reference to violence in the
City of Jacksonville,” refrained from “placing blame on the legisla-
ture or executive branch” and lacked “divisive or accusatory” lan-
guage. For these reasons, the district court found Dr. Louh’s invo-
cation 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 reflect
[that] the City had a history of arbitrary enforcement of Council
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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 not-
ing the dangers that can occur if courts become overly involved in
censoring religious speech.
Mr. Gundy timely appealed the district court’s orders grant-
ing the motion to dismiss, in part, and granting summary judg-
ment.
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 con-
tain sufficient 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable infer-
ence that the defendant is liable for the misconduct alleged.” Id.USCA11 Case: 21-11298 Date Filed: 09/30/2022 Page: 16 of 40
16 Opinion of the Court 21-11298
Likewise, we review de novo a district court’s order grant-
ing summary judgment. Mech, 806 F.3d at 1074. “Summary judg-
ment 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 consider-
ing a motion for summary judgment, . . . ‘courts must construe the
facts and draw all inferences in the light most favorable to the non-
moving party and when conflicts 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 affirm 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. 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 finding Mr.
Bowman entitled to qualified 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
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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 Consti-
tution.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 gov-
ernment speech. And since Mr. Gundy did not allege a violation of
his rights under the Establishment Clause, which is the proper
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 meth-
ods of analysis.” Cambridge Christian, 942 F.3d at 1228 n.2; see also Cafe Erot-
ica 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 prin-
ciples 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 Constitu-
tion). 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.
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18 Opinion of the Court 21-11298
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 pri-
vate 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) (quot-
ing Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc.,
515 U.S. 557, 566 (1995)). Thus, “[w]hen government speaks, it is
not barred by the Free Speech Clause from determining the con-
tent of what it says.” Walker v. Tex. Div., Sons of Confederate
Veterans, Inc., 576 U.S. 200, 207 (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 gov-
ernment speech.’” (quoting Pleasant Grove City v. Summum, 555
U.S. 460, 467 (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 pro-
tect the marketplace of ideas.” Walker, 576 U.S. at 207. Indeed,
“[w]hen the government exercises ‘the right to “speak for itself,”’
5 The Free Speech, Free Exercise, and Establishment Clauses of the First
Amendment have been incorporated, via the Fourteenth Amendment, to ap-
ply to the States and their subdivisions. See, e.g., Cantwell v. Connecticut, 310
U.S. 296, 303 (1940); Schneider v. Town of Irvington, 308 U.S. 147, 160 (1939).
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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
(first quoting Summum, 555 U.S. at 467–68; then quoting Downs
v. L.A. Unified 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. “[G]overn-
ment 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. (quot-
ing Bd. of Regents of Univ. of Wis Sys. v. Southworth, 529 U.S. 217,
235 (2000)). “If the citizenry objects, newly elected officials later
could espouse some different or contrary position.” Southworth,
529 U.S. at 235.
Thus, the distinction between government speech and pri-
vate 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 be-
cause, “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. Chesterfield
Cnty. Bd. of Supervisors, 404 F.3d 276, 289 (4th Cir. 2005) (Nie-
meyer, J., concurring) (emphasis in original); accord Fields v.
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20 Opinion of the Court 21-11298
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 definitive 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 govern-
ment speech—namely, (1) history; (2) endorsement; and (3) con-
trol, 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 “in-
vocation was unquestionably government speech.” Then, in its or-
der 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 con-
stituted 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 finding 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”
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21-11298 Opinion of the Court 21
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 discus-
sion 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 first 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 (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. Reversing the Eighth Circuit, the Supreme Court
held that it did not. Id. at 795.
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,”
flowing from “colonial times through the founding of the Republic
and ever since.” Id. at 786. And the Supreme Court noted that
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22 Opinion of the Court 21-11298
“three days after Congress authorized the appointment of paid
chaplains” in 1789, “final 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 with-
out interruption ever since that early session of Congress.” Id. at
788. For these reasons, the Supreme Court concluded:
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 in-
voke Divine guidance on a public body entrusted
with making the laws is not, in these circumstances,
an “establishment” of religion or a step toward estab-
lishment; it is simply a tolerable acknowledgment of
beliefs widely held among the people of this country.
Id. at 792.
The Supreme Court also looked at three specific aspects of
the Nebraska policy—namely, the chaplain’s long tenure and Pres-
byterian denomination, the state-funded nature of the chaplain’s
salary, and the “Judeo-Christian tradition” of the chaplain’s pray-
ers—to determine whether the policy violated the Establishment
Clause. Id. at 792–93. Most importantly for this appeal, the Su-
preme Court determined that the “content of the prayer is not of
concern to judges where . . . there is no indication that the prayer
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21-11298 Opinion of the Court 23
opportunity has been exploited to proselytize or advance any
one, or to disparage any other, faith or belief.” Id. at 794–95.
Several years after Marsh, the Supreme Court decided
County of Allegheny v. American Civil Liberties Union, 492 U.S.
573 (1989), abrogated by Town of Greece v. Galloway, 572 U.S. 565(2014). It is notable for its commentary, in dictum, about Marsh.
Specifically, County of Allegheny dealt with whether the display of
a crèche and a menorah on municipal property violated the Estab-
lishment Clause. 492 U.S. at 578–79. 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 (quoting Marsh, 463 U.S. at 793 n.14). Thus, the opinion
set forth the implication that the holding in Marsh only applied to
nonsectarian forms of prayer.
Twenty-five 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 impermissi-
ble establishment of religion by opening its monthly board meet-
ings with a prayer,” given by solely Christian ministers “from 1999
to 2007.” 572 U.S. at 569–71. After reviewing the town’s legislative
prayer policies, the Supreme Court held that the town did not vio-
late the Establishment Clause. Id. at 570, 575.
In so doing, the Supreme Court clarified that the “inquiry”
into whether legislative prayer violates the Establishment Clause
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24 Opinion of the Court 21-11298
depends on whether the legislative prayer at issue “fits within the
tradition long followed in Congress and the state legislatures.” Id.
at 577. Dispelling the interpretation of the dictum in County of
Allegheny, the Supreme Court stated that an “insistence on non-
sectarian or ecumenical prayer as a single, fixed standard is not con-
sistent with the tradition of legislative prayer outlined in the
Court’s cases,” most notably Marsh’s harkening back to the “decid-
edly Christian nature” of the first prayers given before Congress.
Id. at 578–81. The Supreme Court reiterated that “the ‘content of
the prayer is not of concern to judges,’ provided ‘there is no indica-
tion that the prayer opportunity has been exploited to proselytize
or advance any one, or to disparage any other, faith or belief.’” Id.
at 581 (quoting Marsh, 463 U.S. at 794–95). Thus, the Supreme
Court “reject[ed] the suggestion that legislative prayer must be
nonsectarian.” Id. at 582.
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 super-
visors and censors of religious speech,” which “would involve gov-
ernment 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. And the Supreme Court noted that the “First Amendment
is not a majority rule, and government may not seek to define per-
missible categories of religious speech.” Id. at 582. For this reason,
once government “invites prayer into the public sphere,
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21-11298 Opinion of the Court 25
government must permit a prayer giver to address his or her own
God or gods as conscience dictates, unfettered by what an admin-
istrator or judge considers to be nonsectarian.” Id.
The Supreme Court clarified 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 legisla-
tive prayer “at the opening of legislative sessions, where it is meant
to lend gravity to the occasion and reflect values long part of the
Nation’s heritage.” Id. at 582–83. According to the Supreme
Court, “[p]rayer that is solemn and respectful in tone, that invites
lawmakers to reflect upon shared ideals and common ends before
they embark on the fractious business of governing, serves that le-
gitimate function.” Id. at 583. 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 doc-
uments 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 Rob-
erts and Alito joined, Justice Kennedy described the format and in-
tended audience for legislative prayer. Id. at 586–88. Justice
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26 Opinion of the Court 21-11298
Kennedy noted that the “principal audience for these invocations
is not, indeed, the public but lawmakers themselves, who may find
that a moment of prayer or quiet reflection sets the mind to a
higher purpose and thereby eases the task of governing.” Id. at 587.
Moreover, while “many members of the public find 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. This
is because, for “members of town boards and commissions, who
often serve part-time and as volunteers, ceremonial prayer may
also reflect 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 afore-
mentioned line of Supreme Court jurisprudence and has developed
a three-factor analytical framework to determine whether legisla-
tive 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 gov-
ernmental entity; and (3) the nature of the prayer delivered by the
invocation speaker to determine whether the prayer “had been ex-
ploited to affiliate the [government entity] with a particular faith.”
Id. at 1277–78; accord Williamson v. Brevard County, 928 F.3d
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21-11298 Opinion of the Court 27
1296, 1310–16 (11th Cir. 2019); Atheists of Fla., Inc. v. City of Lake-
land, 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 con-
tent 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] official prayers for any group of the American peo-
ple to recite as a part of a religious program carried on by govern-
ment.’” Id. at 1278 (alteration in original) (quoting Lee v. Weis-
man, 505 U.S. 577, 588 (1992)); see also Williamson, 928 F.3d at
1310 (“[J]ust like in Pelphrey and Atheists of Florida, we have no
occasion to engage the third factor of the test—the content of the
prayers.”).
Keeping in mind the background that legislative invocations
and prayers are well-established in this country’s history and tradi-
tion and the mandate to exercise caution when considering
whether to review the content of prayers, we turn to our govern-
ment 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
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28 Opinion of the Court 21-11298
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 govern-
ment speech or private speech. See 942 F.3d 1215; see also Leake,
14 F.4th 1242.
6 We note decisions from other circuits concluding that legislative prayer con-
stitutes 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 confines of the Establishment Clause under the First Amendment); id. at
289 (Niemeyer, J., concurring in judgment) (“[W]hen members of a govern-
mental 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 re-
quiring 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)).
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21-11298 Opinion of the Court 29
In Cambridge Christian, this Court examined whether the
decision to prohibit two Christian schools from using the loud-
speaker 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 field, 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
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30 Opinion of the Court 21-11298
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 confidence 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
finding 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 ar-
bitrarily and haphazardly denied access to the forum in violation of
the First Amendment.” Id. at 1223.
Importantly for this appeal, this Court described the fac-
tors—history, endorsement, and control—that courts in this Cir-
cuit 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 tradition-
ally ‘communicated messages’ on behalf of the government.” Id.
at 1232 (quoting Walker, 576 U.S. at 211). As to the endorsement
factor, courts must ask “whether the kind of speech at issue is ‘often
closely identified in the public mind with the government.’” Id.
(quoting Summum, 555 U.S. at 472). Finally, as to the control
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21-11298 Opinion of the Court 31
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). In discussing the control factor, this Court pro-
vided the caveat that “[n]o case precedent says that the govern-
ment 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 finding that all ev-
idence government speech will almost always result in a finding
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). Here, we agree with the district court’s
findings that “invocations are traditionally limited to a single pur-
pose” of solemnizing “proceedings before legislatures engage in
the . . . task of governance” and that the “traditional audience of an
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32 Opinion of the Court 21-11298
invocation . . . is the legislature itself.” But we disagree with the
district court’s unawareness “of any established tradition of invo-
cations being used to communicate messages on behalf of a gov-
ernmental body” as being both out of touch with the role of the
City Council’s particular invocation and the unique role that legis-
lative invocations have played throughout this country’s history
and tradition.
Because this case involves a legislative invocation, our con-
sideration 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 benefit and
blessing of the Council.” This is nothing new—as we have already
discussed, it has long been acknowledged that the “opening of ses-
sions 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. 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. And, “[a]s a practice that has long endured, legislative prayer
has become part of our heritage and tradition, part of our expres-
sive idiom, similar to the Pledge of Allegiance, inaugural prayer, or
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21-11298 Opinion of the Court 33
the recitation of ‘God save the United States and this honorable
Court.’” Town of Greece, 572 U.S. at 587.
While the invocation is meant for the benefit and the bless-
ing of the City Council, which by itself militates toward a finding
of government expression, see Fields, 936 F.3d at 158, the general
public is still in attendance during the invocation. Indeed, the in-
vocation precedes the City Council’s official meetings, which
members of the public participate in, making the invocation inher-
ently “governmental in nature.” Turner v. City Council of City of
Fredericksburg, 534 F.3d 352, 354 (4th Cir. 2008) (O’Connor, J., re-
tired and sitting by designation). Further, the invocation speaker is
chosen by an active member 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); 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 Alle-
giance—militate toward a finding 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 finding that the
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34 Opinion of the Court 21-11298
[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 to-
ward a finding 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 finding.
ii. Endorsement
Turning to the endorsement factor, we must ask “whether
the kind of speech at issue is ‘often closely identified in the public
mind with the government.’” Cambridge Christian, 942 F.3d at
1232 (quoting Summum, 555 U.S. at 472). Like the history factor,
we again agree with many of the district court’s findings but disa-
gree 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 meet-
ing for an invocation, maintained rules and appointed officers ded-
icated 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
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21-11298 Opinion of the Court 35
endorsement factor. The district court’s apprehension about the
Establishment Clause is misguided. Indeed, “[b]ecause ‘govern-
ment speech must comport with the Establishment Clause’ any-
way, 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); see also Summum, 555 U.S. at 482 (Scalia, J., concurring) (ac-
knowledging the separate analyses for a government speech find-
ing and a breach of the Establishment Clause finding). And, as dis-
cussed below, beyond the fact that government speech is confined
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 findings that we agree with. As noted by the district
court, the City Council’s invocation can be closely identified in the
public mind with the government because the City Council organ-
izes the invocation, it provides the venue for the invocation, it se-
lects 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 identified
in the public mind with the government unit that owns the land.’”
(quoting Summum, 555 U.S. at 472)). These facts are much like the
facts analyzed in Turner, see 534 F.3d at 354 (noting that “[t]he
prayer [was] an official part of every [c]ouncil meeting,” the prayer
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36 Opinion of the Court 21-11298
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 invoca-
tion with the City Council, given the occasion. Cf. Leake, 14 F.4th
at 1249 (discussing how the “[c]ity publicly advertised and pro-
moted 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 benefit and
blessing of the Council.” And “what a chosen agent of the govern-
ment 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 mem-
bers stand for. Town of Greece, 572 U.S. at 588. Thus, the invoca-
tion speaker is “given the chance to pray on behalf of the govern-
ment.” 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 gov-
ernmental nature of the message or transform the government’s
role into that of a mere forum-provider.” Walker, 576 U.S. at 217.
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21-11298 Opinion of the Court 37
Thus, the endorsement factor weighs in favor of a government
speech finding.
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). 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 gov-
ernment 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 Su-
preme Court and this Court have cautioned against judicial scru-
tiny of the content of prayers in all but the most extreme circum-
stances. 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 mes-
sages 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 finding.
The City Council exerts control over the messages con-
veyed by invocation speakers because inviting speakers to give in-
vocations inherently exhibits governmental control over the invo-
cation 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
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38 Opinion of the Court 21-11298
Council member. See Turner, 534 F.3d at 355. And while the City
Council did not purport to have initial editorial rights over the ex-
act 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 ex-
ercises 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: de-
liver a secular prayer.”) Taken to the logical extreme, it is plausible
that a member of a hate group may give a vastly different invoca-
tion than, say, a 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 confines of the Establish-
ment Clause is so important. See, e.g., Town of Greece, 572 U.S.
at 585–86. Thus, the control factor weighs in favor of deeming Mr.
Gundy’s invocation government speech.
****
Ultimately, all three factors point to a finding of government
speech. For this reason, we agree with other circuits that have
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21-11298 Opinion of the Court 39
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,, 139 S. Ct. 909, 910–11 (2019) (Ka-
vanaugh, J., respecting denial of cert.) (citing Marsh and County of
Allegheny to distinguish case being denied certiorari from in-
stances “where the government itself is engaging in religious
speech, such as a government-sponsored prayer or a government-
sponsored religious display”). We find 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, confined by the bounds of the
Establishment Clause. See Summum, 555 U.S. at 468.
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 invo-
cation constitutes government speech, his speech is “not suscepti-
ble 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
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40 Opinion of the Court 21-11298
standards for challenges to government speech . . . require that
[the plaintiff’s free speech and free exercise claims] must be re-
jected.”). As such, this Court need not turn to the factors articu-
lated in Pelphrey—namely, weighing (1) the identity of the invoca-
tion speaker, (2) the process by which the invocation speaker is se-
lected, 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 at-
tack on free speech or free exercise grounds.
AFFIRMED.