AJ O'Laughlin v. Palm Beach County ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14676
____________________
AJ O'LAUGHLIN,
CRYSTAL LITTLE,
Plaintiffs-Appellants,
versus
PALM BEACH COUNTY,
a political Subdivision of the State of Florida,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:19-cv-80701-WPD
____________________
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2 Opinion of the Court 20-14676
Before NEWSOM, MARCUS, Circuit Judges, and STORY, District
Judge. *
NEWSOM, Circuit Judge:
Pursuant to its Social Media Policy, the Palm Beach County
Fire Rescue Department disciplined firefighters AJ O’Laughlin and
Crystal Little for an exchange they had on an invitation-only Face-
book page associated with O’Laughlin’s campaign for the presi-
dency of the local firefighters’ union. In particular, O’Laughlin and
Little accused union officials of conspiring with Fire Department
management to misuse member-donated paid time off. We must
decide whether, by punishing O’Laughlin and Little, the County
violated their First Amendment rights to free speech and free asso-
ciation.
The district court dismissed O’Laughlin and Little’s as-ap-
plied free-speech and free-association claims on the pleadings, and
subsequently granted summary judgment for the County on their
claims that the Social Media Policy was unconstitutionally over-
broad and vague on its face. After careful review, we affirm the
district court’s judgment as to the free-association and vagueness
claims but vacate and remand as to the free-speech and over-
breadth claims.
* Honorable Richard W. Story, United States District Judge for the Northern
District of Georgia, sitting by designation.
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20-14676 Opinion of the Court 3
I
A
O’Laughlin and Little—to whom we will sometimes refer
collectively as “plaintiffs”—are both captains in the Palm Beach
County Fire Rescue Department. Importantly for present pur-
poses, both are also members of the International Association of
Firefighters Local 2928—which, for brevity’s sake, we’ll simply call
“the union.”
At the time of the incident underlying this case, O’Laughlin
was running for the union presidency. As part of his campaign, he
created an invitation-only Facebook page, on which he posted a
comment accusing the union’s First Executive Vice President—
Captain Jeffrey Newsome—of attempting to misuse, for his per-
sonal benefit, time that union members had donated to the Union
Time Pool. The UTP consists of union-member-donated hours
that union officers can use on days that they would otherwise have
to take off from their regular work in order to conduct union busi-
ness. O’Laughlin’s Facebook post accused Newsome of conspiring
with Fire Department management to use donated UTP time on
Thanksgiving and Christmas Days—on which, all agree, he
wouldn’t have been transacting any union business. O’Laughlin
posted a screenshot of the UTP calendar and stated, as relevant
here: “This is your Union leadership. Wtf. When elected this will
stop.” For her part, Little responded: “Thanks AJ for keeping them
accountable. And on that note our fucking stellar staffing officer
just blindly approves it? Wtf!”
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4 Opinion of the Court 20-14676
O’Laughlin and Little were disciplined for their comments
with a “written warning,” per the Fire Department’s Social Media
Policy. In relevant part, the Social Media Policy provides as fol-
lows:
Personal Use:
...
d. Employees are prohibited from disseminating con-
tent that is inconsistent with the duties, conduct, and
responsibilities of a Fire Rescue employee including
content that could be reasonably interpreted as hav-
ing an adverse effect upon Fire Rescue morale, disci-
pline, operations, the safety of staff, or perception of
the public. For example, unprofessional, unbecom-
ing, illegal, unethical, sexual, violent, harassing, rac-
ist, sexist, or ethnically derogatory comments, pic-
tures, artwork, videos, material or other such refer-
ences all tend to undermine the public trust and con-
fidence required by employees of the Fire Rescue.
...
g. Employees who choose to maintain or participate
in social media or social networking platforms while
off-duty shall conduct themselve[s] with professional-
ism and in such a manner that shall not reflect nega-
tively upon this agency or its mission.
...
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20-14676 Opinion of the Court 5
i. Failure to comply with the above guidelines may
result in discipline up to and including termina-
tion. . . .
j. Fire Rescue personnel shall not post, transmit, or
otherwise disseminate any information (photo-
graphic or text) to which they have access as a result
of their employment without written permission
from the Fire Rescue Administrator or designee.
B
O’Laughlin and Little sued the County, alleging that—as ap-
plied to them—the Social Media Policy unconstitutionally re-
stricted their free-speech and free-association rights under both the
First Amendment to the United States Constitution and Article I,
§ 4 of the Florida Constitution, and that the Policy is unconstitu-
tionally overbroad and vague on its face.1 They sought an injunc-
tion prohibiting the Fire Department from enforcing the Policy and
a declaration ordering it to rescind the written warnings that they
had received for violating it.
The County filed a motion to dismiss, which the district
court granted in part, holding that plaintiffs failed to sufficiently al-
lege either (1) that the County violated their right to free speech,
because their online comments weren’t related to a “matter of
1 Plaintiffs also initially asserted that the Social Media Policy constituted a prior
restraint on speech, but have conceded on appeal that the district court “cor-
rectly held” that it is not. Br. of Appellants at 12.
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6 Opinion of the Court 20-14676
public concern,” or (2) that the County violated their right to free
association, because they didn’t allege any associational conduct
that the County had inhibited. The district court denied the
County’s motion to dismiss plaintiffs’ facial claims that the Policy
is unconstitutionally overbroad and vague, concluding that the Pol-
icy arguably regulates employees’ right to speak on matters of pub-
lic concern in a way that could prohibit most speech critical of the
Fire Department.
The parties filed dueling motions for summary judgment on
the overbreadth and vagueness claims. With respect to the over-
breadth challenge, the district court held that “the impact of the
proscriptions in the Social Media Policy is outweighed by the Fire
Department’s interest in [a] functioning and orderly department
capable of effectively serving the public.” And with respect to
vagueness, the court concluded that “the policy is sufficiently clear
that a reasonable person could foresee the conduct which would
put him at risk of discharge or other discipline.”
O’Laughlin and Little timely appealed to this Court. Before
us, they argue that the district erred in rejecting their (1) as-applied
free-speech claim, (2) as-applied free-association claim, (3) facial
overbreadth claim, and (4) facial vagueness claim.2
2 “We review a district court’s dismissal of a complaint for failure to state a
claim upon which relief may be granted de novo.” Resnick v. Avmed, Inc.,
693 F.3d 1317, 1324 (11th Cir. 2012). We also review a district court’s grant of
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20-14676 Opinion of the Court 7
II
A
Plaintiffs’ primary contention is that their free-speech rights
were violated when they were disciplined for their Facebook posts.
Although it’s well-settled that a public employee may not be dis-
charged or punished in retaliation for exercising her right to free
speech under the First Amendment, it’s also well-settled that a pub-
lic employee’s free-speech rights are not absolute. See Bryson v.
City of Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989).
In Pickering v. Board of Education—the pathmarking case
governing public employees’ free-speech rights—the Supreme
Court held that a public employee’s interest in exercising her free-
dom of speech must be weighed against the government’s need to
“promot[e] the efficiency of the public services it performs through
its employees.” 391 U.S. 563, 568 (1968). Then, 15 years later in
Connick v. Myers, the Court explained that “[t]he repeated empha-
sis in Pickering on the right of a public employee ‘as a citizen, in
commenting upon matters of public concern,’ was not accidental,”
and, therefore, it is essential to a public employee’s free-speech
claim that her speech relate to a matter of public concern. 461 U.S.
138, 143 (1983).
summary judgment de novo, applying the same legal standard used by the
district court. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008).
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8 Opinion of the Court 20-14676
Drawing on Pickering and Connick, we have developed the
following four-step “balancing test”:
To prevail under this analysis, an employee must
show that: (1) the speech involved a matter of public
concern; (2) the employee’s free speech interests out-
weighed the employer’s interest in effective and effi-
cient fulfillment of its responsibilities; and (3) the
speech played a substantial part in the adverse em-
ployment action. If an employee satisfies her burden
on the first three steps, the burden then shifts to the
employer [4] to show by a preponderance of the evi-
dence that it would have made the same decision
even in the absence of the protected speech.
Cook v. Gwinnett Cnty. Sch. Dist., 414 F.3d 1313, 1318 (11th Cir.
2005) (internal citations omitted).
To determine whether a public employee’s speech addresses
a matter of public concern at step one of the four-factor Pickering-
Connick test, a reviewing court must examine three sub-factors—
namely, the “content, form, and context” of the employee’s state-
ment. Connick, 461 U.S. at 147–48.
The district court here held that plaintiffs’ Facebook posts
did not address a matter of public concern and ended its free-speech
analysis there. In so holding, the court emphasized (1) that “the
content of the speech addressed the potential misuse of a Union
Time Pool,” not the “misuse of public dollars or the Fire
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20-14676 Opinion of the Court 9
Department’s budgeting priorities”; (2) that the speech was not
“communicated to a [sic] public at large” but, rather, was “made in
the form of posts and a comment in a private Facebook group”;
and (3) that the “context” suggested that plaintiffs “were motivated
to speak by personal interests in electing . . . O’Laughlin to a union
leadership position.”
We disagree with the district court’s reasoning with respect
to each of the public-concern sub-factors and, thus, with its overall
conclusion that plaintiffs’ speech didn’t address a matter of public
concern.
First, content, which we have said is “undoubtedly the most
important factor in assessing whether particular speech touches on
a matter of public concern.” Mitchell v. Hillsborough Cnty., 468
F.3d 1276, 1284 (11th Cir. 2006). With respect to the content sub-
factor, there is no requirement in a case like this, as the district
court seemed to assume, that the speech allege a “misuse of public
dollars.” Rather, following the Supreme Court’s lead, we have
held, more generally, that “[i]n assessing the content of a public
employee’s speech, we look to whether the speech communicates
a ‘subject of legitimate news interest[,] a subject of general interest
and of value and concern to the public at the time.’” Id. (quoting
City of San Diego v. Roe, 543 U.S. 77, 84 (2004)). Here, O’Laughlin
alleged—and Little seemed to second—(1) that Newsome had at-
tempted to misuse member-donated paid-time-off for his own per-
sonal benefit and (2) that Fire Department management was com-
plicit in Newsome’s wrongdoing. Put simply, plaintiffs’ speech was
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10 Opinion of the Court 20-14676
intended to expose what they perceived to be corruption within
the union and the Department. That strikes us as sufficiently “a
subject of legitimate news interest” to satisfy the public-concern re-
quirement’s content sub-factor. Indeed, we have emphasized that
“a core concern of the [F]irst [A]mendment is the protection of the
‘whistle-blower’ attempting to expose government corruption.”
Bryson, 888 F.2d at 1566; see also Porter v. Califano, 592 F.2d 770,
785 (5th Cir. 1979) (“[I]t is unthinkable that a public employee who
attempts to expose corruption in her office should be punished . . .
.”). 3
The district court likewise erred with respect to the public-
concern requirement’s form sub-factor. Contrary to that court’s
apparent assumption, the law is well-settled that a public employee
does not forfeit his free-speech rights simply because he chooses to
communicate privately rather than publicly. The Supreme Court’s
post-Pickering decision in Givhan makes that much crystal clear.
In that case, a public-school teacher engaged in a series of private
communications with her principal complaining about employ-
ment policies and practices that she deemed racially
3 It’s worth noting that this case is different from Mitchell in an important re-
spect. There, the panel held that the employee’s speech was “comprised solely
of sophomoric name-calling and contempt-communicating expressive acts”—
it was an unadorned “ad hominem attack[]”—and was “unaccompanied by
any content touching an issue of public concern.” 468 F.3d at 1285. Here,
both O’Laughlin and Little used some salty language—or acronyms, as the
case may be—but they did so in service (however crude) of a point about New-
some’s fitness for union office.
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20-14676 Opinion of the Court 11
discriminatory. See Givhan v. W. Line Consol. Sch. Dist., 439 U.S.
410, 412–13 (1979). This Court’s predecessor, the old Fifth Circuit,
reversed a judgment in the teacher’s favor on the ground that be-
cause she “had privately expressed her complaints and opinions to
the principal, her expression was not protected under the First
Amendment.” Id. at 413. The Supreme Court unanimously re-
versed, expressly rejecting the proposition that “private expression
of one’s views is beyond constitutional protection.” Id. While
Pickering and other cases like it “each arose in the context of a pub-
lic employee’s public expression,” that fact, the Givhan Court clar-
ified, was “largely coincidental.” Id. at 414. No decision, the Court
emphasized, “support[s] the conclusion that a public employee for-
feits his protection against governmental abridgment of freedom
of speech if he decides to express his views privately rather than
publicly.” Id. Since Givhan, our own decisions have underscored
the same theme. See, e.g., Cook, 414 F.3d at 1319 (citing Givhan
and holding that “[t]he mere fact that [a public employee’s] speech
was made to coworkers or to supervisors rather than directed at
the general public does not remove the speech from the category
of public concern”); Kurtz v. Vickry, 855 F.2d 723, 727–30 (11th Cir.
1988) (citing Givhan and holding that privately communicated
speech sufficiently addressed a matter of public concern).
Finally, context. Plaintiffs here aired their grievances in the
run-up to a union election, and they used an online platform to
pointedly criticize union leadership. We have observed that
“[i]ssues regarding the operation of government, including issues
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12 Opinion of the Court 20-14676
of union organization, are often considered matters of public con-
cern.” Cook, 414 F.3d at 1319. And contrary to the district court’s
suggestion, the fact that plaintiffs’ speech here occurred in the con-
text of a union election hardly changes matters. While we don’t
doubt the district court’s factual premise that plaintiffs’ speech was
at least to some degree “motivated” by their personal interest in
the outcome of the union election, we reject its conclusion that
their election-related motivation deprives their speech of its public-
ness. Presumably, in any campaign setting, a candidate and his sup-
porters will have a selfish purpose for speaking, including about ri-
val candidates—namely, winning the election. But far from under-
mining their speech’s claim to First Amendment protection, that
purpose at least arguably strengthens it. See, e.g., McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334, 346–47 (1995) (citing numerous
decisions in support of the proposition that campaign-related
speech exists at the very core of the First Amendment). 4
Because we conclude that the district court erred in conclud-
ing that plaintiffs’ speech didn’t address a matter of public concern
4 This is not a case like Morris v. Crow, 117 F.3d 449 (11th Cir. 1997), in which
we tentatively suggested—in dicta—that a public employee’s “vituperative
outburst” uttered at a polling place might not have related to a matter of pub-
lic concern. There, we emphasized (1) that the employee was motivated
solely by “her anger that [one of two candidates for sheriff] had fired her hus-
band” and (2) that there was “no evidence that [her] speech at the polling place
included any commentary on the relative qualifications of the candidates.” Id.
at 457. Here, by contrast, the very point of plaintiffs’ speech was to comment
on Newsome’s fitness to serve in union leadership.
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20-14676 Opinion of the Court 13
at step one of the four-part Pickering-Connick balancing test, we
vacate that court’s rejection of plaintiffs’ free-speech claim and re-
mand for it to conduct the remainder of the Pickering–Connick
analysis in the first instance.
B
O’Laughlin and Little separately allege that—as-applied to
them—the Social Media Policy unconstitutionally restricted their
right to free association.
Although both parties refer in their briefs to the First
Amendment’s “Free Association Clause,” the Constitution does
not by its terms protect the freedom of association. Rather, associ-
ation has been characterized as a right “implicit” in the First
Amendment. There are two types of constitutionally protected as-
sociation—intimate and expressive. Here, we deal with the right
to expressive association, which the Supreme Court initially recog-
nized in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).
There, the Court held that “freedom to engage in association for
the advancement of beliefs and ideas is an inseparable aspect of the
‘liberty’ assured by the Due Process Clause of the Fourteenth
Amendment, which embraces freedom of speech.” Id. at 460.
In Roberts v. U.S. Jaycees, the Supreme Court explained that
the freedom of expressive association is instrumental to, and pro-
tective of, other constitutional rights: “[T]he Court has recognized
a right to associate for the purpose of engaging in those activities
protected by the First Amendment.” 468 U.S. 609, 618 (1984).
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14 Opinion of the Court 20-14676
“The Constitution guarantees freedom of association of this kind,”
the Court continued, “as an indispensable means of preserving
other individual liberties.” Id. We have specifically held that “[t]his
right to freedom of association extends to public employees being
able to engage in associative activity without retaliation.” Hatcher
v. Bd. of Pub. Educ. & Orphanage for Bibb Cnty., 809 F.2d 1546,
1558 (11th Cir. 1987).
The district court here held that plaintiffs failed to allege any
“associational conduct upon which the [County] ha[d] infringed,”
and we agree. The Supreme Court has described the freedom of
association as “the exercise of one’s right to choose one’s associ-
ates.” Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S.
537, 548 (1987) (quotation omitted). O’Laughlin and Little simply
weren’t denied that right. Plaintiffs complain that they were un-
fairly disciplined for their social-media posts—that is, for their
speech—not that they were punished for joining the union, collec-
tively bargaining, or otherwise hanging around with people who
share their beliefs. At its core, this is a speech case, not an associa-
tion case. See Oral Argument at 8:08 et seq.
Accordingly, we affirm the district court’s dismissal of plain-
tiffs’ as-applied free-association claim.
C
Next up: Plaintiffs contend that—on its face—the Fire De-
partment’s Social Media Policy is unconstitutionally overbroad.
The policy is indisputably broad: It prohibits “content that could
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20-14676 Opinion of the Court 15
be reasonably interpreted as having an adverse effect upon Fire
Rescue morale, discipline, operations, the safety of staff, or percep-
tion of the public.”
In determining whether a public employer’s policy that pro-
spectively restricts speech is unconstitutionally overbroad, courts
apply a modified version of the Pickering-Connick test. That test
places a heavy burden on the government to “show that the inter-
ests of [the] potential audiences and a vast group of present and
future employees in a broad range of present and future expression
are outweighed by that expression’s necessary impact on the actual
operation of the Government.” United States v. Nat’l Treasury
Emps. Union, 513 U.S. 454, 468 (1995) (quotation marks omitted).
The district court here acknowledged that, on its face, the
Social Media Policy covers speech that could address matters of
public concern. It ultimately concluded, however, that “the Fire
Department’s interests”—in summary, in identifying prohibited
social-media-related conduct and providing related guidance;
maintaining order, discipline, and camaraderie; and ensuring fire-
fighters’ ability to serve the community—“outweigh[ed] potential
employee and audience interests in the speech the Social Media
Policy proscribes.”
We disagree. The Fourth Circuit’s decision in Liverman v.
City of Petersburg, 844 F.3d 400 (4th Cir. 2016), is instructive. The
court there considered a police department’s social-media policy
that prohibited “[n]egative comments on the internal operations of
the Bureau, or specific conduct of supervisors or peers that impacts
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16 Opinion of the Court 20-14676
the public’s perception of the department”—and, even more
broadly, the dissemination of any information “that would tend to
discredit or reflect unfavorably upon” the department. Id. at 404.
In a suit brought by two veteran officers who had engaged in a Fa-
cebook conversation about the pitfalls of “rookie cops becoming
instructors,” the Fourth Circuit invalidated that policy as “uncon-
stitutionally overbroad.” Id. at 407. In particular, the court con-
cluded that there could be “no doubt” that the policy prohibited
protected speech, inasmuch as it “prevent[ed] plaintiffs and any
other officer from making unfavorable comments on the opera-
tions and policies of the Department, arguably the ‘paradigmatic’
matter of public concern.” Id. at 407–08 (quoting Sanjour v. EPA,
56 F.3d 85, 91 (D.C. Cir. 1995)). And, more to the point for present
purposes, the Fourth Circuit emphasized the “astonishing breadth”
of the policy, which “proscribe[d] ‘[n]egative comments on the in-
ternal operations of the Bureau’—which could be just about any-
thing—or on the ‘specific conduct of supervisors or peers’—which,
again, could be just about anything.” Id. at 408.
The Social Media Policy here suffers from the same sort of
“astonishing breadth.” It expressly prohibits “disseminating con-
tent” that “could be reasonably interpreted as having an adverse
effect upon Fire Rescue morale, discipline, operations, the safety of
staff, or perception of the public.” In the Liverman court’s words,
that “could be just about anything.” The district court here rea-
soned that the Social Media Policy’s “For example” clause—which
is found in Subsection (d) and catalogues a non-exhaustive list of
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20-14676 Opinion of the Court 17
topics that might trigger the prohibition—sufficiently narrowed
the provision’s reach. But here, as in Liverman, “the milder lan-
guage in a single provision does not salvage the unacceptable over-
breadth of the social networking policy taken as a whole.” 844 F.3d
at 409.
Accordingly, we vacate the district court’s summary judg-
ment on plaintiffs’ overbreadth claim and remand for further pro-
ceedings consistent with this opinion.
D
Finally, vagueness. “In the public employment context, the
Supreme Court has reiterated that the vagueness doctrine is based
on fair notice that certain conduct puts persons at risk of dis-
charge.” San Filippo v. Bongiovanni, 961 F.2d 1125, 1136 (3d Cir.
1992) (citing Arnett v. Kennedy, 416 U.S. 134, 159 (1974)). “Such
standards are not void for vagueness as long as ordinary persons
using ordinary common sense would be notified that certain con-
duct will put them at risk of discharge.” Id.The district court here concluded that the Social Media Pol-
icy “is sufficiently clear that a reasonable person could foresee the
conduct which would put him at risk of discharge or other disci-
pline.” We hold that plaintiffs have failed to properly present a
vagueness challenge on appeal. Although plaintiffs use the term
“vagueness” once in the argument section of their opening brief,
the portion of the brief in which that word appears is, in fact, de-
voted to contesting the policy’s overbreadth. See Br. of Appellant
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18 Opinion of the Court 20-14676
at 34–39 (focusing, in particular, on Liverman, which, as already
explained, found a similar social-media policy unconstitutionally
overbroad). Accordingly, plaintiffs have abandoned any vagueness
argument that they might have intended to present. See, e.g.,
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir.
2014) (holding that “[a] party fails to adequately ‘brief’ a claim
when he does not ‘plainly and prominently’ raise it, ‘for instance
by devoting a discrete section of his argument to [it]’” (citations
omitted)).
We affirm the district court’s judgment rejecting plaintiffs’
facial vagueness claim.
III
For the foregoing reasons, we affirm the district court’s judg-
ment as to the free-association and vagueness claims but vacate and
remand as to the free-speech and overbreadth claims.
AFFIRMED in part, and VACATED and REMANDED in
part.