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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12863
____________________
JARED MCGRIFF,
OCTAVIA YEARWOOD,
RODNEY JACKSON,
NAIOMY GUERRERO,
Plaintiffs-Appellants,
versus
CITY OF MIAMI BEACH,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
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2 Opinion of the Court 22-12863
D.C. Docket No. 1:20-cv-22583-MGC
____________________
Before JORDAN, ROSENBAUM, and HULL, Circuit Judges.
HULL, Circuit Judge:
Artists Jared McGriff, Octavia Yearwood, Rodney Jackson,
and Naiomy Guerrero (collectively “plaintiffs”) appeal the district
court’s entry of summary judgment in favor of the City of Miami
Beach on their First Amendment claim brought against the City
under
42 U.S.C. § 1983. The City contracted with the artists to
create and curate a series of artworks that the City would own.
The district court entered summary judgment after finding that the
City’s removal of one piece of plaintiffs’ artwork constituted
government speech and was immune from First Amendment
scrutiny under Pleasant Grove v. Summum,
555 U.S. 460 (2009) and
Walker v. Texas Division, Sons of Confederate Veterans, Inc.,
576 U.S.
200 (2015). After review and with the benefit of oral argument, we
agree and affirm the summary judgment under the particular
factual circumstances of this case.
I. FACTS AND PROCEDURAL HISTORY
The City of Miami Beach has a troubling and regrettable
history of race relations. In hopes of “sparking crucial
conversations about inclusion, blackness, and relationships,” the
City organized an event called “ReFrame: Miami Beach”
(“ReFrame”), which included a series of art installations to be
displayed on Memorial Day Weekend 2019. The City signed
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22-12863 Opinion of the Court 3
Professional Services Agreements (“the Agreements”) with
plaintiffs McGriff’s and Yearwood’s production companies to,
among other things, curate an installation called “I See You, Too.”1
In relevant part, the Agreements provided:
• “All installations shall be subject to review and approval
by the City Manager’s designee”;
• “[A]ll services provided by the [production companies]
shall be performed . . . to the reasonable satisfaction of
the City Manager”;
• “Any work product arising out of th[e] Agreement[s], as
well as all information specifications, processes, data and
findings, are intended to be the property of the City and
shall not otherwise be made public and/or disseminated
by [the production companies], without the prior written
consent of the City Manager . . .”; and
• “[T]he City will provide [the production companies]
with the appropriate location to perform the services
. . . .”
(Font altered.)
1 The City Manager originally contracted with a different production company
to produce the cultural programming for its Memorial Day Weekend event,
but he fired that company because he did not approve of its programming
decisions.
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4 Opinion of the Court 22-12863
In preparation for ReFrame, the City distributed a press
release on City letterhead and flyers that marketed the event. The
press release and flyers included the City’s e-mail addresses,
characterized ReFrame as the City’s inaugural festival, and
advertised the I See You, Too installation. The press release and a
letter written by the City Manager to the Mayor and City
Commission confirmed that the programming was intended to
broach the topics of “inclusion, blackness, and relationships.” The
City also contracted to provide the exhibition venue space for the
I See You, Too installation, and the City organized and advertised an
opening night cocktail reception and media preview. The City’s
Mayor was interviewed on National Public Radio (“NPR”) with
Yearwood about the event.
Among other artworks exhibited at the I See You, Too
installation was a painting of a Haitian-American man named
Raymond Herisse. A written narration accompanied the painting,
explaining how Miami Beach police officers shot and killed Herisse
during the 2011 Memorial Day Weekend. After viewing the
painting, the City Manager told the artists to remove the Herisse
memorial from the exhibition. He later explained to the Mayor
and City Commission that the painting was “potentially divisive
and definitely insulting to our police as depicted and narrated.”
In response, plaintiffs brought this action against the City,
alleging that it violated their First Amendment free speech rights
by having the Herisse painting removed from the I See You, Too
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installation.2 The City filed a motion for summary judgment,
arguing that plaintiffs’ claim did not implicate the First
Amendment under the government speech doctrine. The district
court agreed, finding that three factors used to identify
government speech—control, history, and endorsement—
weighed in favor of the City.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment
de novo and “may affirm based on any ground supported by the
record.” Fuqua v. Turner,
996 F.3d 1140, 1149, 1156 (11th Cir. 2021).
Summary judgment is appropriate where there is “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III. THE GOVERNMENT SPEECH DOCTRINE
“[T]he Government’s own speech . . . is exempt from First
Amendment scrutiny.” Johanns v. Livestock Mktg. Ass’n,
544 U.S.
550, 553 (2005). Thus, when the government speaks, it is free to
choose what to say and what not to say. Walker, 576 U.S. at 207;
see also Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819,
833 (1995) (“[W]hen the government appropriates public funds to
promote a particular policy of its own it is entitled to say what it
wishes.”). “This freedom includes choosing not to speak and
2 Plaintiffs also named the City Manager and the Mayor as individual
defendants. However, the district court dismissed them from this case after
determining that they were entitled to qualified immunity, which plaintiffs do
not challenge on appeal.
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6 Opinion of the Court 22-12863
speaking through the removal of speech that the government
disapproves.” Mech v. Sch. Bd.,
806 F.3d 1070, 1074 (11th Cir. 2015)
(cleaned up). The government “may exercise this same freedom
. . . when it receives assistance from private sources for the purpose
of delivering a government-controlled message.” Summum,
555 U.S. at 468. “The fact that private parties take part in the design
and propagation of a message does not extinguish its governmental
nature.” Mech,
806 F.3d at 1078 (cleaned up).
In deciding whether expression is government speech or
private speech, we may consider several factors. See Summum,
555 U.S. at 470–72; Walker, 576 U.S. at 209–213. For example, we
may ask: (1) whether the government maintains control over the
speech; (2) whether the type of speech has traditionally
communicated government messages; and (3) whether the public
would reasonably believe that the government has endorsed the
speech. See, e.g., Leake v. Drinkard,
14 F.4th 1242, 1248 (11th Cir.
2021), cert. denied,
142 S. Ct. 1443 (2022). But “we lack a ‘precise
test,’” and “[t]hese factors are neither individually nor jointly
necessary for speech to constitute government speech.” Id.; see also
Mech,
806 F.3d at 1075 (stating that these factors are not
“exhaustive” and will not “be relevant in every case”). “Our review
is not mechanical; it is driven by a case’s context rather than the
rote application of rigid factors.” Shurtleff v. City of Boston, 596 U.S.
----,
142 S. Ct. 1583, 1589 (2022).
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IV. THE CITY ENGAGED IN GOVERNMENT SPEECH
Considering the totality of the circumstances here, we agree
with the district court and hold there is no genuine dispute of
material fact that the City was speaking when it selected some
artwork, but not others, to display at ReFrame. We reject
plaintiffs’ arguments that the district court misinterpreted the
scope of the control and history factors and that the City’s actions
were insufficient to show its endorsement of ReFrame’s message.
A. Control
The City controlled the I See You, Too installation and the
Herisse painting because it contracted to commission and fund the
artists’ work; to control its exhibition, including by subjecting the
art to the City Manager’s approval; and to provide the space in
which the exhibition was housed. See Gundy v. City of Jacksonville
Fla.,
50 F.4th 60, 79 (11th Cir. 2022), cert. denied.
143 S. Ct. 790
(2023) (holding the City Council’s invocation was government
speech where the City Council organized the invocation, provided
the venue for the invocation, and selected the speaker).
Moreover, the Agreements provided that the City owned
the artwork produced for ReFrame, which includes the Herisse
painting. After the City “took ownership” of the artwork pursuant
to the Agreements, “[a]ll rights previously possessed by the
[production companies were] relinquished.” See Summum, 555 U.S.
at 473–74. Having bought the artwork, the City’s decision to
display it, or not display it, was classic government speech. The
Agreements even provided that the artwork “shall not otherwise
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8 Opinion of the Court 22-12863
be made public and/or disseminated by [the production
companies], without the prior written consent of the City
Manager.” See id. at 470 (calling it an “obvious proposition that a
monument that is commissioned and financed by a government
body for placement on public land constitutes government
speech”); see also Serra v. U.S. Gen. Servs. Admin.,
847 F.2d 1045, 1049
(2d Cir. 1988) (“Serra relinquished his own speech rights in the
sculpture when he voluntarily sold it to GSA; if he wished to retain
some degree of control as to . . . the display of his work, he had the
opportunity to bargain for such rights in making the contract for
sale of his work.”); Raven v. Sajet,
334 F. Supp. 3d 22, 28, 32 (D.D.C.
2018) (holding that, because the Smithsonian Institution’s “art
selection decisions constitute government speech,” the gallery
director’s rejection of a painting on the ground that it was “too Pro-
Trump” did not violate the First Amendment (quotation marks
omitted)); Newton v. LePage,
849 F. Supp. 2d 82, 124 (D. Me. 2012)
(“[I]f a private artist retains a degree of First Amendment control
over her artwork even after she sells it, the Government will be
unable to control its own art. This result is contrary to [the
Supreme Court’s decision in] Summum . . . .”), aff’d,
700 F.3d 595
(1st Cir. 2012).
Plaintiffs argue that the district court misinterpreted the
scope of the control factor by not requiring the City to have
actively controlled the message of the artwork they produced.
Plaintiffs rely on Shurtleff, a case in which the Supreme Court held
that “Boston’s come-one-come-all attitude” regarding applications
for private flags to be flown outside city hall showed that it lacked
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control over the messages conveyed by those flags. See Shurtleff,
142 S. Ct. at 1592. However, the Supreme Court directly compared
Boston’s lack of control with Summum, where the city selected and
took ownership over donated monuments to be placed in a public
park. Id. at 1592-93.
Here, it is undisputed that the City contracted with the
production companies to: (1) fund and take ownership over the art,
(2) control how the art was to be disseminated, and (3) subject the
art to the reasonable satisfaction of the City Manager, who
determined that the Herisse painting should be removed because
he believed it to be “potentially divisive.” Recount that a City press
release and a letter from the City Manager to the Mayor and City
Commission stated that one theme for ReFrame was “inclusion.”
Additionally, prior to the Agreement, the City Manager terminated
a contract with a different production company after disagreeing
with its programming decisions for the Memorial Day Weekend
event. See Gundy, 50 F.4th at 80 (“[W]hile the City Council did not
purport to have initial editorial rights over the exact content of the
invocations, selecting one speaker over another exhibits control.”).
The City’s actions mirror—and arguably exceed—those taken in
Summum, and they show that the City sufficiently controlled the
message of ReFrame.
B. History
Turning to the history factor, we ask whether the type of
speech has traditionally communicated government messages. See
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10 Opinion of the Court 22-12863
Leake, 14 F.4th at 1248. Plaintiffs argue that “artistic expression” 3
is the type of speech at issue here and concede that it “has sometimes
been used to convey government speech.” However, they suggest
that the history factor requires the majority of the historical use of a
type of speech to have been by the government, as opposed to by
private individuals. But neither we nor the Supreme Court have
characterized this factor so restrictively. See, e.g., Walker, 576 U.S.
at 211 (noting that license plates “long have communicated
messages from the States”); Matal v. Tam,
582 U.S. 218, 234-35, 238
(2017) (comparing trademarks, which “have not traditionally been
used to convey a Government message,” with posters used during
the Second World War to promote the war effort); Mech,
806 F.3d
at 1076 (stating that “we would have little difficulty” classifying a
Facebook message from a school board about school closings as
3 Notably, plaintiffs’ framing of the medium of speech here as “artistic
expression” seems far too broad. In Summum, for example, the Supreme Court
held that the history factor weighed in favor of the government because
“Governments have long used monuments to speak to the public,” and
“throughout our Nation’s history, the general government practice with
respect to donated monuments has been one of selective receptivity.”
Summum, 555 U.S. at 470-71. If plaintiffs’ characterization of the speech here
were correct, their position would be wholly inconsistent with Summum, as
artistic expression is present in both commissioned paintings and donated
monuments. But neither party raises the issue of how to properly characterize
the speech at issue here, so we need not address it. See United States v. Campbell,
26 F.4th 860, 872 (11th Cir. 2022) (en banc) (stating that, in our adversarial
system of adjudication, “we rely on the parties to frame the issues for decision
and assign to courts the role of neutral arbiter of matters the parties present”
(quotation marks omitted)).
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government speech, even though social media is a relatively new
phenomenon). Even assuming, as plaintiffs contend, that artistic
expression has historically been used for private speech more often
than government speech, this does not negate the government’s
own long historical use of artistic expression to convey messages.
The history factor does not require the government to show that it
historically commissioned more artwork than private individuals
and institutions. We conclude this factor also weighs in the City’s
favor.
C. Endorsement
In Leake, we stated that “observers would interpret a parade
promoted, organized, and funded by the government as conveying
some message on [its] behalf,” as “[c]ities typically do not organize
and fund events that contain messages with which they do not wish
to be associated.” Leake, 14 F.4th at 1250 (quotation marks
omitted). Here, the public would reasonably believe that the City
endorsed the art produced for ReFrame because it: (1) publicized
ReFrame, including the I See You, Too installation in particular, in
City press releases and flyers; (2) organized and advertised an
opening night cocktail reception and media preview; and (3) had its
Mayor interview with Yearwood—a co-curator for the I See You,
Too installation—on NPR. And even if these actions were
somehow not enough to show that the City endorsed the message
of ReFrame and of the I See You, Too installation, this factor need
not weigh in the City’s favor for us to conclude that the speech
involved here was government speech. See Leake, 14 F.4th at 1248.
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V. CONCLUSION
Just as “governments are not obliged under the First and
Fourteenth Amendments to permit the presence of a rebellious
army’s battle flag in the pro-veterans parades that they fund and
organize,” Leake, 14 F.4th at 1245; see also Walker, 576 U.S. at 219,
they are not obliged to display any particular artwork in the art
exhibitions that they fund, organize, and promote.
The district court is AFFIRMED.
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22-12863 Jordan, J., Concurring in the judgment 1
JORDAN, Circuit Judge, Concurring in the judgment.
I join Judge Hull’s opinion for the court in full, and write
separately to make a number of points.
First, we are resolving First Amendment claims concerning
the City of Miami Beach’s decision to not display Rodney Jackson’s
painting of Raymond Herisse and its accompanying written narra-
tive, which together constitute a visual work of art. Our decision
it seems to me, is not complete without a reproduction of the paint-
ing and the narrative. I therefore attach a color copy of the painting
as an appendix and reproduce the narrative below. 1
1 The narrative was as follows:
Ha[i]tian-American Raymond Herisse was 22 years old
when he was shot to death by Miami Beach and Hialeah police
officers on Collins Avenue during Urban Beach Week in
201[1]. 116 shots were fired by the police, four bystanders were
wounded, and 12 police officers participated in the shooting.
Police suggested Herisse was firing a gun from his ve-
hicle, gunshot residue tests released years later proved Herisse
never fired a weapon that day. An examination of the record
by The Miami Herald found the police narrative inconsistent,
contradictory, and missing key information. His shooting
changed the way Miami Beach police now interact with mo-
torists, as now they cannot shoot into a moving vehicle unless
someone inside the vehicle displays a weapon or fires first.
This memorial is to honor Herisse, to affirm #blacklivesmat-
ter and call into question the excessive force, racial discrimina-
tion, violence, and aggression often present in interactions be-
tween police and unarmed black civilians.
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2 Jordan, J., Concurring in the judgment 22-12863
As the court explains, the City’s decision to remove the
painting and narrative from the exhibition did not violate the First
Amendment. That is because, on this record, the removal of the
artwork owned by the City constituted government speech. See,
e.g., People for the Ethical Treatment of Animals, Inc. v. Gittens,
414 F.3d
23, 28 (D.C. Cir. 2005) (addressing a First Amendment challenge to
the D.C. Commission’s decision as to which decorated elephants
and donkeys to display after paying for them and obtaining owner-
ship of them: “In the case before us, the Commission spoke when
it determined which elephant and donkey models to include in the
exhibition and which not to include. In using its ‘editorial discretion
in the selection and presentation of’ the elephants and donkeys, the
Commission thus ‘engage[d] in speech activity’[.]”) (citation omit-
ted). 2
But that does not absolve Miami Beach from criticism from
its decision. The painting, as least to my eyes, is an unoffending
tribute to a man who was shot and killed by Miami Beach police
officers. As for the narrative, the first paragraph contains undis-
puted facts, and the second paragraph seems accurate: the police
suggested that Mr. Herisse had a gun while in his vehicle; the gun-
shot residue tests showed that Mr. Herisse did not fire the gun
McGriff v. City of Miami Beach,
522 F.Supp.3d 1225, 1237 (S.D. Fla. 2020) (order
on motions to dismiss).
2 The analysis would be different if the City did not own the Herisse painting
and nevertheless acted to remove it from display (or prevent it from being
displayed) on private property. See, e.g., Nelson v. Streeter,
16 F.3d 145, 147–49
(7th Cir. 1994).
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22-12863 Jordan, J., Concurring in the judgment 3
found three days later beneath the driver’s seat; an investigation by
The Miami Herald found inconsistencies in the police narrative; and
as a result of the shooting of Mr. Herisse the City changed its use
of deadly force policy with respect to shooting into vehicles. See
generally Julie K. Brown, “The Killing of Raymond Herisse: 116
Shots that Shook South Beach; Miami Beach,” The Miami Herald,
May 25, 2013; Lizette Alvarez, “2 Years After 116 Police Bullets Flew
Few Answers,” The New York Times, Aug. 3, 2013; Alexi C. Cardona,
Joshua Ceballos, and Jessica Lipscomb, “Here Are Six of Rundle’s
Most Controversial Cases,” Miami New Times, Aug. 11, 2020.
Second, at oral argument the plaintiffs likened this case to
Brooklyn Inst. of Arts & Scis. v. City of New York,
64 F. Supp. 2d 184
(E.D.N.Y. 1999). There, a district court issued a preliminary injunc-
tion prohibiting New York City and its Mayor from withholding
funding for the Brooklyn Museum in retaliation for displaying an
exhibit that, in the Mayor’s words, “desecrate[d] someone else’s re-
ligion.”
Id. at 191, 205. One such exhibit, a painting titled “The
Holy Virgin Mary,” contained “elephant dung” and provocative im-
ages. See
id. at 191.
Three important distinctions make the Brooklyn Museum
case inapposite here. First, New York City did not own the Brook-
lyn Museum’s collections. See
id. at 188 (“The Contract is unequiv-
ocal that the City has no ownership rights with respect to any of
the collections in the Museum.”). Second, under the governing
contract New York City had no editorial control over the Brooklyn
Museum’s decisions as to what art to display. See
id. at 204 (“There
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4 Jordan, J., Concurring in the judgment 22-12863
is also no language in the Lease or Contract that gives the Mayor
or the City the right to veto works chosen for exhibition by the
Museum.”). Third, the government action at issue in the Brooklyn
Museum case was the withdrawal of funding and not—as here—a
decision by the City of Miami Beach to not display a painting that
it owned and over which it had full editorial control.
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Appendix
