James Eric McDonough v. Carlos Garcia
U.S. Court of Appeals for the Eleventh Circuit
James Eric McDonough v. Carlos Garcia, 90 F.4th 1080 (11th Cir. 2024)
James Eric McDonough v. Carlos Garcia
Opinion
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11421
____________________
JAMES ERIC MCDONOUGH,
Plaintiff-Appellant,
versus
CARLOS GARCIA,
GARLAND WRIGHT,
individually,
CITY OF HOMESTEAD,
a political subdivision of the State of Florida,
Defendants-Appellees.
____________________
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2 Opinion of the Court 22-11421
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-21986-FAM
____________________
Before JILL PRYOR, NEWSOM, and GRANT, Circuit Judges.
GRANT, Circuit Judge:
James McDonough, a self-styled citizen activist, was
escorted out of a city council meeting in Homestead, Florida after
he verbally attacked one of the council’s members. That removal,
which the parties now agree was legal, was followed by a series of
events that do not benefit from a similar posture of détente—an
arrest for disorderly conduct, an indefinite ban from city hall, and
an arrest for cyberstalking.
This lawsuit challenges all three. McDonough first says the
City and its officials violated the First Amendment by banning him
from future meetings. Before we can consider that argument, we
need to know what kind of public forum those meetings are,
because the City’s ability to restrict McDonough’s speech depends
almost entirely on the answer to that question. But that inquiry
highlights an unresolved tension in our Circuit’s First Amendment
jurisprudence. While the Supreme Court’s public forum
framework has evolved substantially over the last forty years, our
precedents have failed to keep pace.
It seems likely that the Supreme Court would treat the
Homestead City Council meeting as a limited public forum. That
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Court, however, has not specifically considered city council
meetings—and this one has. Our earliest panel precedent treats a
city council meeting reserved for the discussion of limited subjects
as a designated public forum, so the comparatively tougher
standards for analyzing speech restrictions in that kind of forum
must apply here. Following those standards, we reverse the district
court’s grant of summary judgment for the City on the speech ban.
But we affirm the district court’s summary judgment decision
finding qualified immunity for the officer who enforced the City’s
ban.
Moving on to the false-arrest counts, McDonough first
argues that he should not have been arrested for disorderly conduct
after he was removed from City Hall—even accepting as true the
officers’ claims that he was grabbing his crotch and loudly cursing
at them. Here, we agree. Our precedents show that yelling,
cursing, and making obscene gestures toward police officers,
without more, does not amount to probable cause for a disorderly
conduct arrest. The arresting officers should have known this too,
so we deny qualified immunity.
McDonough also argues that the City did not have probable
cause to arrest him for cyberstalking. This time we disagree.
Though it is a close question, it was not unreasonable for the City
to interpret Florida’s cyberstalking statute as barring McDonough
from targeting one of its officers with his series of posts. That
means the City did have probable cause to arrest him for
cyberstalking. We thus affirm in part and reverse in part.
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I.
Homestead, Florida holds monthly city council meetings at
its City Hall. During the comment portion of these meetings,
members of the public are invited to speak for three minutes at a
time on any matters “pertinent to the City.” James McDonough
was a regular, attending and speaking at more than half of the
meetings held between 2015 and 2017. But it did not always go
smoothly; the City had stopped him from completing his remarks
several times.
Things came to a head during the July 2016 meeting.
McDonough rose to address the council, and spoke for about two-
and-a-half minutes without incident. He touched on various
subjects, including alleged police misconduct, body cameras, and
claims of nepotism within the police department. But toward the
end of his allotted time, things took a turn for the worse.
McDonough loudly confronted a city councilman, launching a
personal challenge: “The last point I’d like to hit off with is, Mr.
Maldonado, you know I’d appreciate it if you got something to say
to me, you can come say it in my face, and you don’t have to talk
about me behind my back in public to other people.” Sergeant
Garland Wright, who later testified that he took these comments
as a threat, quickly approached the podium and ordered
McDonough to leave. He characterized his action as a de-
escalatory tactic.
McDonough complied—at least with the instruction to
leave. As he walked out of the auditorium, he threatened to “su[e]
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the shit” out of Wright, and then annotated his departure with a
description of Homestead police that was laced with curse words.
Meanwhile, the city council meeting continued without further
disruption.
A month later, McDonough was back; he planned to attend
the August city council meeting. But as soon as he arrived,
Sergeant Wright intercepted him. He informed McDonough that
the City had issued a trespass order, which amounted to a blanket
ban from the premises—including during city council meetings.
When McDonough asked how he could get the ban lifted, Sergeant
Wright told him to “write a letter.”
So far the exchange had been cordial, but as McDonough
walked away he flipped his middle finger and said, “I’m leaving
buddy, bye-bye.” What happened next is debated. Wright claims
he observed McDonough stop, grab his crotch, and say “fuck you.”
For his part, McDonough denies cursing or grabbing his crotch,
though he admitted it was “possible” that Wright could have
mistaken his taking his phone out for the more vulgar gesture. 1
Either way, the handful of other bystanders in the parking lot at the
time seemed unconcerned about the interaction.
Sergeant Wright, however, did not take McDonough’s
response lightly—he ordered him to stop and then arrested him for
1 Because McDonough admits that Wright could have believed he saw him
grabbing his crotch, we assume for this opinion that it happened. Even so, we
note that the videos do not show McDonough doing anything resembling a
crotch grab during this encounter.
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disorderly conduct. Sergeant Carlos Garcia arrived on the scene
later. After speaking with the arresting officers and reviewing
surveillance video of the incident, Garcia informed McDonough
that he was also under arrest for trespassing. Sergeant Garcia
prepared McDonough’s arrest form, charging him with both
crimes. Officers then took McDonough to the police station,
where he was held overnight before being released on bond the
next day.
After his release, McDonough decided to hash out his
frustrations online. Over the course of about fifteen minutes, he
made three posts on a law-enforcement blog referencing his
August arrest, identifying by name one of the officers involved. He
also posted a link to a public YouTube video featuring that officer’s
public comments against body cameras. McDonough then
challenged the same officer to wear a body camera, calling him a
“frigging coward,” a “slipttail [sic],” and a “giant twat.” He warned
that “any further retaliation” would be dealt with “swiftly, harsly
[sic], and lawfully.” McDonough closed by emphasizing that he
would “be blasting [the officer’s] address.”
These blog posts did not sit well with the targeted officer,
who later testified that he feared for his own safety and his family’s.
The City again arrested McDonough, this time for cyberstalking
and witness tampering. After a Miami-Dade Criminal Court judge
agreed that probable cause supported the cyberstalking charge (but
not the witness tampering one), McDonough bonded out.
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The state attorney eventually dropped all criminal charges
against McDonough. But that was not the end of the matter—once
the state criminal case was over, this federal civil case began.
McDonough sued the City of Homestead and four police officers
involved in his arrests. After the district court dismissed claims
against two of the officers, the lawsuit proceeded to summary
judgment on the seven remaining counts. Count 1 alleged that
Sergeant Wright violated McDonough’s First Amendment rights
when he removed him from the July city council meeting. Counts
2 and 3 alleged that the City and Wright, respectively, violated
McDonough’s First Amendment rights when Wright issued the
August trespass order barring McDonough from future meetings.
Count 4 alleged false arrest by the City when Wright and Sergeant
Garcia arrested McDonough for disorderly conduct; Counts 5 and
6 alleged violations of the Fourth Amendment by Wright and
Garcia, respectively, for the same. Finally, Count 7 alleged false
arrest by the City for the September cyberstalking arrest. The
district court found for the defendants on all counts.
McDonough has abandoned Count 1, but appeals the
district court’s rulings against Counts 2 through 7.
II.
We review a district court’s order granting summary
judgment de novo. Brown v. Nexus Bus. Sols., LLC, 29 F.4th 1315,
1317 (11th Cir. 2022). “We view the evidence in the light most
favorable to the nonmoving party, and we draw all justifiable
inferences in that party’s favor.” Id. at 1317–18 (quotation
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omitted). “Summary judgment is proper ‘if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.’” Id. at 1317 (quoting
Fed. R. Civ. P. 56(a)).
III.
The first issue we consider is whether the City violated
McDonough’s First Amendment rights when it barred him from
attending city council meetings. We have long understood the
commonsense point that the Constitution does not require the
government to “grant access to all who wish to exercise their right
to free speech,” no matter the setting, “without regard to the
nature of the property or to the disruption that might be caused by
the speaker’s activities.” Cornelius v. NAACP Legal Def. & Educ.
Fund, Inc., 473 U.S. 788, 799–800 (1985). Disallowing any limits
whatsoever in all government spaces would often lead to chaos,
and could even keep the government from fulfilling its lawful
functions. But that is not a license to evade the First Amendment,
which demands a close look when the government restricts speech.
Enter forum analysis, which considers “when the Government’s
interest in limiting the use of its property to its intended purpose
outweighs the interest of those wishing to use the property for
other purposes.” Id. at 800.
The government’s ability to impose restrictions on speech
varies depending on the nature of the forum. See Keister v. Bell, 29
F.4th 1239, 1251 (11th Cir. 2022); Perry Educ. Ass’n v. Perry Loc.
Educators’ Ass’n, 460 U.S. 37, 44 (1983). So what type of forum are
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the city council meetings here, and what is the proper legal test for
the City’s speech restrictions? These questions seem
straightforward. But they are not—at least not here and not now.
The histories of First Amendment public forum doctrines here and
in the Supreme Court are jagged, and they lead us to the somewhat
uncomfortable conclusion that in this Circuit a city council
meeting like the one McDonough wished to attend is a designated
public forum.
We call that conclusion uncomfortable because if we were
starting from scratch it might be more appropriate to define city
council meetings as limited public forums, where regulations
survive so long as they are reasonable and viewpoint neutral. But
our Court’s earliest relevant precedent held that a city council
meeting just like the one here was a designated public forum,
which means the government’s authority to limit speech is itself
quite limited. Because that same holding was reaffirmed after
Supreme Court precedents that pointed to—but did not demand—
a different answer, we are bound by it here.
A.
The Supreme Court first outlined public forum doctrine in
Perry Education Association v. Perry Local Educators’ Association.
Synthesizing several decades’ worth of First Amendment
jurisprudence, the Court set out three categories and explained that
the government’s ability to restrict expressive activity would be
different in each one. 460 U.S. at 45–46.
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The first was the traditional public forum—places that “have
immemorially been held in trust for the use of the public and, time
out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public
questions.” Id. at 45 (quotation omitted). The quintessential
examples are streets and parks. Id. Unsurprisingly, in this kind of
forum the government’s ability to restrict speech is highly
constrained. Regulations that depend on the content of speech
need to satisfy strict scrutiny, which means they must be “necessary
to serve a compelling state interest” and “narrowly drawn to
achieve that end.” Id. As for content-neutral “time, place, and
manner” regulations—when, where, and how speech can happen,
regardless of the speaker’s message—the standard is somewhat
looser. Even so, such rules must be “narrowly tailored to serve a
significant government interest, and leave open ample alternative
channels of communication.” Id. 2
Next was the designated public forum, or “public property
which the State has opened for use by the public as a place for
expressive activity.” Id. Examples given by Perry include
2 Those two standards, though similarly worded, are different. For a time,
place, and manner restriction to be “narrowly tailored,” it “need not be the
least restrictive or least intrusive means of” serving “the government’s
legitimate, content-neutral interests.” Ward v. Rock Against Racism, 491 U.S.
781, 798 (1989). Instead, “narrow tailoring is satisfied so long as the regulation
promotes a substantial government interest that would be achieved less
effectively absent the regulation” and it does not “burden substantially more
speech than is necessary to further” that interest. Id. at 799 (alteration adopted
and quotation omitted).
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“university meeting facilities,” “school board meeting[s],” and
“municipal theater[s].” Id. at 45–46. These forums and others like
them need not be held open indefinitely for public speech, the
Supreme Court said, but when the government does choose to
open a designated public forum, it is bound to respect the same
First Amendment standards that applied in traditional public
forums. Id. at 46.
The third and final category described in Perry was the
nonpublic forum. This type of forum is, as the name suggests, not
really a public forum at all, and includes government property that
“is not by tradition or designation a forum for public
communication.” Id. The First Amendment, after all, “does not
guarantee access to property simply because it is owned or
controlled by the government.” Id. (quotation omitted). The
internal school mail facility at issue in Perry was one such nonpublic
forum; other examples are mailboxes, military bases, and jails. Id.;
see also U.S. Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S.
114, 128–29 (1981); Greer v. Spock,424 U.S. 828, 838
(1976); Adderley
v. Florida, 385 U.S. 39, 47–48 (1966). For these, the Court said, the
state can impose “reasonable” regulations on speech in order to
“reserve the forum for its intended purposes,” but only if those
restrictions are viewpoint neutral. Perry, 460 U.S. at 46.
The Supreme Court followed this tripartite framework
without interruption for about a decade, until Rosenberger v. Rector
& Visitors of University of Virginia, 515 U.S. 819 (1995). There, the
Supreme Court made an important shift—though without saying
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so—setting out a fourth category, the limited public forum. Perry
had not recognized a separate category of “limited public forums.”
But it did use that term to describe a subset of designated public
forums, those “created for a limited purpose such as use by certain
groups, or for the discussion of certain subjects.” Perry, 460 U.S. at
46 n.7 (citations omitted). To underscore the overlap, Perry
recycled two of its examples of designated public forums as also
being limited public forums: university meeting facilities and
school board meetings. See id. And for these meetings, the
government needed to respect the same First Amendment
boundaries as in other designated public forums. See id. at 45–46,
46 n.7.
But in Rosenberger, the Court moved limited public forums
into the nonpublic forum bucket. Rosenberger explained that in a
“limited public forum”—one created “for certain groups or for the
discussion of certain topics”—the government could enforce
speech restrictions that were “reasonable in light of the purpose
served by the forum” and did not discriminate on the basis of
viewpoint. 515 U.S. at 829 (quotation omitted). This was the same
test it had offered before for nonpublic forums. See Perry, 460 U.S.
at 46.
Rosenberger cited two post-Perry cases to support this point.
See 515 U.S. at 829(citing Cornelius,473 U.S. 788
; and Lamb’s Chapel
v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)). But both
of them had outlined the same three-part forum analysis as Perry—
including a recognition that the stricter standard associated with
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traditional public forums applied when the government designated
a forum for open public expression. 3 See Cornelius, 473 U.S. at 800;
Lamb’s Chapel, 508 U.S. at 390–93. Cornelius, like Perry, identified
school board meetings and municipal auditoriums as examples of
designated public forums. 4 Cornelius, 473 U.S. at 803. It reiterated
that the reasonable-and-viewpoint-neutral test applied for
“nonpublic forum[s].” See id. at 806. Lamb’s Chapel, for its part,
simply quoted Cornelius for the same rule. 508 U.S. at 392–93.
Neither established a new category of “limited public forums.”
Rosenberger thus represented a break from Perry and its
progeny. Where Perry described limited public forums as a subset
of designated public forums, Rosenberger said the test applied in
limited public forums was the same as the test used in nonpublic
forums. So what probably read as a minor conceptual shift—after
all, these categories are often based on a matter of degree—turned
out to have major implications for the analysis courts use and the
standards we set.
This doctrinal change came with its own growing pains. Just
three years later, the Court appeared to walk back Rosenberger’s
3 Same with International Society for Krishna Consciousness, Inc. v. Lee, which
repeated Perry’s three-part framework but was uncited in Rosenberger. See 505
U.S. 672, 678–79 (1992).
4 The Cornelius dissent, for what it is worth, explicitly used the term “limited
public form” as a synonym for designated public forum, and there is no sign
that the majority disagreed with that characterization. See Cornelius, 473 U.S.
at 813(Blackmun, J., dissenting) (citing Perry,460 U.S. at 48
).
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creation of the limited public forum. In Arkansas Educational
Television Commission v. Forbes, the Court briefly returned to Perry’s
three categories: traditional public forum, designated public forum,
and nonpublic forum. 523 U.S. 666, 677–78 (1998). The Forbes
Court described a forum open only to “a particular class of
speakers” as a type of designated public forum—consistent with
Perry but contrary to Rosenberger, which called a forum reserved
“for certain groups” a limited public forum. Id. at 678; see Perry, 460
U.S. at 45–46, 46 n.7; Rosenberger, 515 U.S. at 829.
But in 2001, Good News Club v. Milford Central School
cemented Rosenberger’s change. 533 U.S. 98. The Supreme Court
reaffirmed Rosenberger’s shift, applying the reasonable-and-
viewpoint-neutral standard to restrictions in a limited public
forum. See id. at 106–07. The Court maintained its earlier standard
for restrictions on speech in traditional or “open” (an apparent
synonym for designated) public forums, describing those
categories as “subject to stricter scrutiny than are restrictions in a
limited public forum.” Id. at 106. So Perry’s early characterization
of limited public forums as a specific subset of designated public
forum was dead and gone—at least at the Supreme Court.
The characterization of the limited public forum as a
category distinct from the designated public forum remains in force
at the Supreme Court. So does the application of the reasonable-
and-viewpoint-neutral standard to restrictions on speech within
that kind of forum. See, e.g., Pleasant Grove City v. Summum, 555 U.S.
460, 470 (2009); Christian Legal Soc’y Chapter of the Univ. of Cal.,
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Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 679 (2010). And in
Walker v. Texas Division, Sons of Confederate Veterans, Inc., the Court
set out the limited public forum as a category independent from
both designated public forums and nonpublic forums. See 576 U.S.
200, 215–16 (2015). That leaves, for today, four kinds of forums
recognized by the Supreme Court: the traditional public forum, the
designated public forum, the limited public forum, and the
nonpublic forum. 5
B.
This Circuit’s public forum doctrine has also evolved—just
not always in tandem with the Supreme Court’s. In 1989 we
deemed a city commission meeting, which was open for public
comment on agenda items, a designated public forum. Jones v.
Heyman, 888 F.2d 1328, 1331 (11th Cir. 1989). Consistent with
Perry, we held that content-based restrictions were subject to strict
5 The Supreme Court has also said at times that there are only three, using the
categories of “limited public forum” and “nonpublic forum” interchangeably.
See Christian Legal Soc’y, 561 U.S. at 679 n.11 (recognizing traditional public
forums, designated public forums, and limited public forums); Minnesota Voters
All. v. Mansky, 138 S. Ct. 1876, 1885 (2018) (recognizing traditional public
forums, designated public forums, and nonpublic forums); see also Am. Freedom
Def. Initiative v. King Cnty., 136 S. Ct. 1022, 1022 (2016) (Thomas, J., dissenting
from denial of certiorari) (noting that a “limited public forum” is “also called
a nonpublic forum”). Perhaps it is irrelevant if the same test is applied to
speech restrictions in either setting. But in any event, whether “the limited
public forum” and the nonpublic forum are “distinct type[s] or merely a
variant of one” another “is not important to our analysis.” Cambridge Christian
Sch., Inc. v. Florida High Sch. Athletic Ass’n, 942 F.3d 1215, 1237 n.5 (11th Cir.
2019).
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scrutiny in this designated public forum, while content-neutral,
time, place, and manner restrictions needed to be “narrowly drawn
to achieve a significant governmental interest” and “allow
communication through other channels.” Id. So far so good.
Four years later, we correctly read Perry to say that one “kind
of designated public forum is the limited public forum.” Crowder v.
Hous. Auth. of Atlanta, 990 F.2d 586, 591 (11th Cir. 1993). We went
on to hold that an auditorium in a public housing unit “was a
limited public forum” because it was open for a wide range of
activities. Id. All remained well because at that time both this
Court and the Supreme Court considered limited public forums a
type of designated public forum, subject to the same test. We
struck down the regulations limiting the auditorium’s use for Bible
studies. See id. at 592–93.
Trouble held off for a little over a decade. 6 In 2004, nine
years after Rosenberger made clear that restrictions in limited public
forums should be evaluated for reasonableness and viewpoint
neutrality (and three years after Good News Club did the same), this
Court held that city council meetings were limited public forums.
6 In 2003, sitting en banc, we explained that there were three forum categories:
traditional public forum, designated public forum, and nonpublic forum.
Atlanta J. & Const. v. City of Atlanta Dep’t of Aviation, 322 F.3d 1298, 1306 n.9
(11th Cir. 2003) (en banc). We wrote that strict scrutiny applied to content-
based restrictions in traditional and designated public forums, while the
reasonable-and-viewpoint-neutral test applied to restrictions in nonpublic
forums. Id. at 1306–07. We made no mention at all of the limited public
forum.
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Rowe v. City of Cocoa, 358 F.3d 800, 802 (11th Cir. 2004) (quoting
Crowder, 990 F.2d at 591). No problem there. But Rowe applied the
designated forum test rather than the nonpublic forum test to this
allegedly limited forum, saying that content-neutral restrictions on
the time, place, and manner of speech “must be narrowly tailored
to serve a significant government interest.” Id. at 802–03
(quotation omitted). 7 This was consistent with Perry, as well as
Jones and Crowder, but not with the more recent Rosenberger and
Good News Club, which would have reviewed restrictions in a
limited public forum only for viewpoint neutrality and
reasonableness in light of the forum’s purpose. In other words, our
treatment of limited public forums diverged from that of the
Supreme Court.
By 2011, we had partially corrected course. In Bloedorn v.
Grube, a case about a non-student seeking to preach on a public
university’s campus, we articulated the difference between public,
designated, and limited forums and described the tests applicable
to each consistent with the Supreme Court’s latest explanation as
laid out in Good News Club, Pleasant Grove City, and Christian Legal
Society. See 631 F.3d 1218, 1225–26, 1230–32 (11th Cir. 2011). The
university’s sidewalks, pedestrian mall, and rotunda were limited
public forums because they were limited to use only by university
community members, while the Free Speech Area open to outside
7 Rowe did, we note, characterize the regulations that it approved as
“reasonable and viewpoint neutral” in its concluding paragraph, despite
having applied a different test in the analysis. Rowe, 358 F.3d at 804.
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speakers was a designated public forum. Id. at 1232–34. We
concluded that the university’s ban on outside speakers in the
limited public forums reserved for university members was a
reasonable, viewpoint-neutral restriction. See id. at 1235. And the
requirement that outside speakers seek a permit to access the Free
Speech Area was upheld as a content-neutral, time, place, and
manner restriction narrowly tailored to the university’s significant
interests in regulating competing uses of the space and maintaining
campus safety, leaving open ample alternative channels for speech.
See id. at 1236–42. That was all consistent with Good News Club.
The problem is that Bloedorn did not cite or explain away Rowe,
which came after Good News Club but still applied our earlier
approach for limited public forums, categorizing them with
designated public forums rather than nonpublic.
So, in the post-Good News Club era, this Court has had two
inconsistent but concurrent approaches to analyzing limited public
forums: Rowe, which requires content-neutral restrictions in a
limited public forum to be narrowly tailored to a significant
governmental interest (and implicitly requires strict scrutiny for
content-based restrictions), and Bloedorn, which reviews all
restrictions only for viewpoint-neutrality and reasonableness.
Compounding the confusion, Jones, our Circuit’s first case to
address forum analysis—and dealing with a city commission
meeting to boot—treated that meeting as a designated, rather than
a limited, public forum, and accordingly reviewed a content-
neutral decision for narrow tailoring to a significant governmental
interest. Jones, 888 F.2d at 1331. So, between Jones, Rowe, and
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Bloedorn, we have three combinations of labels and tests here: Jones,
a designated public forum with heightened scrutiny; Rowe, a
limited public forum with heightened scrutiny; and Bloedorn, a
limited public forum with reasonableness review. 8
C.
So where does that leave us? Both parties agree that the
trespass order here was content neutral. McDonough, citing to
Jones, argues that the Homestead city council meetings are a
designated, or even traditional, public forum. If so, the trespass
order would need to be narrowly tailored in service of a significant
governmental interest and leave open ample alternative channels
of communication. Perry, 460 U.S. at 45–46. McDonough argues
that this is the appropriate standard. For the City’s part, it prefers
Rowe’s characterization of the meetings as a limited public forum.
8 One more of our decisions merits mention. In Barrett v. Walker County School
District, we analyzed a restriction on the public’s access to the “public-
comment portions of” a school board’s meetings. 872 F.3d 1209, 1219 (11th
Cir. 2017). Barrett concluded, citing to Rowe, that the public-comment sessions
are limited public forums. Id.at 1225 (citing Rowe,358 F.3d at 802
). But while
Rowe would have required even content-neutral restrictions to meet narrow
tailoring in service of a significant governmental interest, Barrett required
content-based restrictions to be only “viewpoint neutral and reasonable in light
of the forum’s purpose.” Id. (footnote omitted); see Rowe, 358 F.3d at 802–03.
Moreover, Barrett never cited Jones—which called the public-comment period
of a city-council meeting a designated public forum—even though Jones was
directly on point. Perhaps that was because the parties had already agreed that
the public-comment portion of the school board meeting was a limited, not
designated, public forum. Barrett, 872 F.3d at 1224. But Barrett did not address,
and thus could not resolve, the conflict in our precedents.
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20 Opinion of the Court 22-11421
Even so, the City declines to endorse any particular standard for
limited public forums, arguing that its actions did not violate the
law no matter which test we apply.
The parties’ uncertainty reflects the fact that our caselaw
does not offer an easy answer. Under the Supreme Court’s current
framework, because the city council’s meeting procedures limit the
public comment period to matters “pertinent to the City,” it would
appear that the city council meeting is a limited public forum. See
Walker, 576 U.S. at 215. In such a forum, the less exacting
reasonableness analysis should apply, whether for content-based or
content-neutral restrictions, so long as those restrictions are
viewpoint neutral. See Good News Club, 533 U.S. at 106–07.
Jones, however, short-circuits our analysis. The city
commission meeting there, which we deemed a designated public
forum, was identical in all relevant respects to the one here,
including that the public was invited to a city facility to speak only
“on agenda items.” Jones, 888 F.2d at 1331. Given that it was a
designated public forum, we went on to apply the standards used
for that kind of forum—content-based restrictions were subject to
strict scrutiny, while content-neutral restrictions needed to be
narrowly tailored to serve a significant government interest and
leave open ample alternative channels of communication. Id.
The prior-panel precedent rule directs one course: it is “the
firmly established rule of this Circuit that each succeeding panel is
bound by the holding of the first panel to address an issue of law,
unless and until that holding is overruled en banc, or by the
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22-11421 Opinion of the Court 21
Supreme Court.” United States v. Hogan, 986 F.2d 1364, 1369 (11th
Cir. 1993). Yes, “a subsequent panel is not obligated to follow a
prior panel’s decision where an intervening Supreme Court
decision establishes that the prior panel decision is wrong.” Id. But
we cannot comfortably say that Jones and Crowder were abrogated
by the Supreme Court’s subsequent change in its treatment of
limited public forums, finalized in Good News Club.
For one thing, Rowe, a decision this Court issued after
Rosenberger and Good News Club, applied the stricter legal test of
Jones, rather than reasonableness review, to speech restrictions at a
city council meeting. Rowe, 358 F.3d at 802–03. And no
intervening Supreme Court precedents since Rowe explain the
subsequent shift in the tests this Circuit has applied either to limited
and designated public forums generally, or to speech restrictions in
city council meetings specifically. For another, Jones and Good News
Club agree on the test to be applied in a designated public forum—
strict scrutiny for content-based restrictions, narrow tailoring in
service of a significant governmental interest for content-neutral
restrictions—even if they might disagree on what types of
government-owned spaces fall under that label. Last but not least,
neither Good News Club nor Rosenberger dealt with a city council
meeting—unlike both Jones and Rowe.
That means all of our not-quite-reconcilable precedents are
not-quite-overruled. There is no way to chart a new path through
our caselaw consistent with all of our precedents unless we twist
“a case in such a way as to avoid the more troublesome prospect of
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22 Opinion of the Court 22-11421
dealing with the conflict of authority.” Hogan, 986 F.2d at 1369.
Because “we cannot distinguish the facts” of Jones, we are obligated
to apply it as “the precedent of the first panel to address the relevant
issue.” Devengoechea v. Bolivarian Republic of Venez., 889 F.3d 1213,
1227 (11th Cir. 2018).
D.
According to Jones, the city council meeting here is a
designated public forum, so we apply the standards relevant to
such a forum. We see no reason to upset the parties’ consensus
that the trespass order was content neutral, because we conclude
that the order fails even the test applied to content-neutral
restrictions in a designated public forum.
Jones held that the government has a significant interest “in
conducting orderly, efficient meetings of public bodies.” 888 F.2d
at 1332–33. Even assuming that the City’s trespass order pursued
this interest, it was not narrowly tailored to do so. Nor did it leave
open ample alternative means for McDonough to speak.
By its terms, the order indefinitely barred McDonough from
city hall, preventing him from attending all future city council
meetings. 9 Wright informed McDonough that his ability to return
9 McDonough at one point in his brief describes this order as a “prior restraint”
on his speech, a characterization that the City challenges. In support,
however, he cites only a Sixth Circuit case dealing with a citywide nighttime
noise ordinance. See Polaris Amphitheater Concerts, Inc. v. City of Westerville, 267
F.3d 503, 506 (6th Cir. 2001). The Sixth Circuit found that the challenged
regulation was not a prior restraint because it was content neutral, narrowly
tailored, and did not vest any city officials with unbridled discretion—rejecting
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22-11421 Opinion of the Court 23
and speak depended on his writing a letter—unmentioned were to
whom the letter should be sent and what it should say. This
sweeping, indefinite ban on McDonough’s attendance is not
narrowly tailored—it “burden[s] substantially more” of
McDonough’s speech “than is necessary to further” the City’s
interest in avoiding disruption at its meetings. Ward, 491 U.S. at
799. The City was permitted to remove McDonough from the July
meeting after he behaved disruptively. See Jones, 888 F.2d at 1333–
34. It was not permitted, however, to ban him from all future
meetings, offering relief and readmission only if he “wrote a
letter”—an action described in such vague terms as to be
functionally meaningless.
Nor were the City’s proposed alternative channels for
contacting the city council—email, physical mail, and phone
calls—enough to preserve McDonough’s First Amendment rights.
Public city council meetings are just that—public. An attendee’s
interest in speaking may be as much to rally or inform other
members of the public as to address the council members
themselves. And it is certainly easier to hold the city council
accountable in a public forum rather than a private one. The City’s
trespass order against McDonough thus fails the scrutiny applicable
a challenge often brought in the permitting or licensing context. Id. at 509.
McDonough does not raise a similar substantive challenge in this appeal. In
any event, we need not decide what amounts to a labeling dispute because
prior restraint analysis already maps onto the tough standards that apply in
traditional and designated public forums.
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24 Opinion of the Court 22-11421
to content-neutral regulations for a designated public forum. 10 We
reverse the district court on Count 2.
IV.
Moving to McDonough’s other claims, Counts 4 and 7 are
state-law false arrest claims against the City of Homestead for his
August disorderly conduct arrest and his September cyberstalking
arrest. For these claims, “probable cause constitutes an absolute
bar.” Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998).
Probable cause exists when “a reasonable officer could conclude
that there was a substantial chance of criminal activity.” Garcia v.
Casey, 75 F.4th 1176, 1186 (11th Cir. 2023) (alteration adopted and
quotation omitted).
A.
The first question is whether the officers had probable cause
to arrest McDonough for disorderly conduct. Florida law
criminalizes conduct that constitutes “a breach of the peace or
disorderly conduct.” Fla. Stat. § 877.03. But the Florida Supreme
Court has limited that law’s application to unprotected speech—
10 One issue related to the trespass order remains. The City argues that it
cannot be held liable under Section 1983 because the order did not represent
an official policy of the City. As the district court found, either Chief of
Homestead Police Alexander Rolle made the decision to bar McDonough
under the final policymaking authority vested in the police department by city
ordinance, or Chief Rolle had delegated this authority to Sergeant Wright,
who made the final call. Either way the City is liable under Section 1983
because a single decision by a final policymaker is sufficient for municipal
liability. Mandel v. Doe, 888 F.2d 783, 793 (11th Cir. 1989).
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22-11421 Opinion of the Court 25
words “which by their very utterance inflict injury or tend to incite
an immediate breach of the peace.” State v. Saunders, 339 So. 2d
641, 644 (Fla. 1976) (alteration adopted and quotation omitted).
Neither of those things even came close to happening.
McDonough was arrested for swearing at Wright, flipping him the
bird, and allegedly grabbing his crotch in the presence of a handful
of peaceful onlookers, none of whom showed any reaction to his
outburst.
Our disorderly conduct precedents instruct that assessing
the existence of probable cause for a disorderly conduct arrest is a
highly fact-intensive inquiry. But a few through lines in the
doctrine dictate the outcome here. To start, mere words of anger,
including profanity, directed at a police officer are not enough to
sustain a disorderly conduct arrest. See Alston v. Swarbrick, 954 F.3d
1312, 1319 (11th Cir. 2020); Gold v. City of Miami,121 F.3d 1442, 1446
(11th Cir. 1997). Nor are obscene gestures, whether alone or
combined with verbal antagonism. Raising one’s middle finger or
the equivalent is simply another way of saying “fuck you”—rude,
but not illegal. Davis v. Williams, 598 F.2d 916, 919 n.5 (5th Cir.
1979); 11 see Sandul v. Larion, 119 F.3d 1250, 1252, 1255 (6th Cir.
1997); Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990).
Finally, the presence of bystanders does not transform
otherwise lawful conduct and speech into incitement. As Florida
11 Decisions by the former Fifth Circuit handed down before October 1, 1981
are binding on this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir. 1981) (en banc).
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26 Opinion of the Court 22-11421
courts have explained, “the mere fact that other people come
outside or stop to watch what is going on is insufficient to support
a conviction for disorderly conduct.” Barry v. State, 934 So. 2d 656,
659 (Fla. Dist. Ct. App. 2006) (citing Gonzales v. City of Belle Glade,
287 So. 2d 669, 670 (Fla. 1973)). Incitement requires more: “some
evidence that the crowd is actually responding to the defendant’s
words in some way that threatens to breach the peace.” Id.
McDonough’s actions may not have been a particularly
polite or respectful way to behave in public. But his behavior,
standing alone, does not provide probable cause for a disorderly
conduct arrest. We reverse the district court on Count 4.
B.
By contrast, at the time of McDonough’s second arrest, this
time for cyberstalking, the City did have probable cause to believe
that he had committed the crime. Cyberstalking is defined by Fla.
Stat. § 784.048(1)(d) as conduct communicating “words, images, or
language” to a particular person through email or other electronic
communication, “causing substantial emotional distress to that
person and serving no legitimate purpose.” The statute omits
“constitutionally protected activity such as picketing or other
organized protests” from its ambit. Id. § 784.048(1)(b). Here, the
City argues that McDonough’s three blog posts—which identified
and taunted a specific police officer, threatened to respond “swiftly
and harsly [sic]” to further perceived provocations, and promised
to “blast” the officer’s home address—were enough to arrest him
for cyberstalking.
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22-11421 Opinion of the Court 27
An officer has probable cause for an arrest where the
interpretation of an applicable criminal statute is “objectively
reasonable,” even if erroneous. United States v. Braddy, 11 F.4th
1298, 1308–09 (11th Cir. 2021). And that standard falls well short
of what is required for a conviction. Though a close call, it was not
unreasonable for these officers to regard McDonough’s internet
posts as threats against the named officer.
“True threats are serious expressions conveying that a
speaker means to commit an act of unlawful violence,” and they
have never been protected by the First Amendment. Counterman
v. Colorado, 600 U.S. 66, 74 (2023) (alteration adopted and quotation
omitted). Disseminating a target’s address, in conjunction with
other evidence that the speaker intends harm to befall the target,
can amount to such a threat. See, e.g., United States v. Turner, 720
F.3d 411, 418–25 (2d Cir. 2013) (posts of several judges’ photos and
work addresses on extremist-linked website, alongside text saying
the judges deserved to die, constituted true threats); cf. United States
v. White, 698 F.3d 1005, 1013–16 (7th Cir. 2012) (post on a white
supremacist website included a juror’s photo, home address, and
phone number); Planned Parenthood of the Columbia/Williamette, Inc.
v. Am. Coal. of Life Activists, 290 F.3d 1058, 1071–80, 1085–86 (9th
Cir. 2002) (en banc) (wanted-style posters sharing targets’ photos
and addresses). Regardless of whether McDonough’s posts
actually qualified as true threats, it was not unreasonable for the
City’s officers to believe that they did. And we agree with the
district court’s conclusion that his posts—especially the promise to
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28 Opinion of the Court 22-11421
reveal the officer’s home address—could objectively inspire
substantial emotional distress in their target.
McDonough’s last and best argument against his
cyberstalking arrest is that three posts, made within fifteen
minutes, do not constitute a “course of conduct” under the
cyberstalking statute. The statute defines a “course of conduct” as
“a pattern of conduct composed of a series of acts over a period of
time, however short,” and McDonough argues that his three posts
should count as only one act. Fla. Stat. § 784.048(1)(b).
Florida courts have considered a similar issue—but not until
four years after McDonough’s arrest. In Krapacs v. Bacchus, a
Florida appellate court found that tagging a target in repetitive
social media posts over the span of four hours constituted a single
act, rather than a series of acts. 301 So. 3d 976, 978–79 (Fla. Dist.
Ct. App. 2020). By that standard, McDonough may be correct that
his three rapid-fire posts should be considered a single act rather
than a course of conduct. But whether probable cause exists
depends on “the facts and circumstances within” the arresting
officers’ knowledge “at the moment the arrest was made.” Beck v.
Ohio, 379 U.S. 89, 91 (1964). As of 2016, without the benefit of
Krapacs, we cannot say that the City’s view that McDonough’s
three separate posts constituted “a pattern of conduct composed of
a series of acts over a period of time, however short,” was objectively
unreasonable. Fla. Stat. § 784.048(1)(b) (emphasis added). We
affirm the district court on Count 7.
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22-11421 Opinion of the Court 29
V.
We now turn to the individual claims against the officers
involved in McDonough’s arrests. Count 3 alleges that Wright
violated McDonough’s First Amendment rights by issuing the
trespass order barring McDonough from future city council
meetings. Counts 5 and 6 allege that Wright and Garcia
respectively violated McDonough’s Fourth Amendment rights by
falsely arresting him for disorderly conduct without probable
cause. The district court granted summary judgment against
McDonough on the basis of qualified immunity on all three counts.
We affirm on Count 3 but reverse on Counts 5 and 6.
“Qualified immunity offers protection for government
officials, acting within their discretionary authority, who are sued
in their individual capacities as long as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Collier v.
Dickinson, 477 F.3d 1306, 1307 (11th Cir. 2007) (footnote and
quotation omitted). Once the official has established that he was
acting within the scope of his discretionary authority, the burden
shifts to the plaintiff to show that there was a violation of a
constitutional right and that the right at issue was clearly
established when the violation occurred. Gilmore v. Hodges, 738
F.3d 266, 272 (11th Cir. 2013).
Plaintiffs can make that showing in one of three ways. First,
they can point to a materially similar decision, whether from the
Supreme Court, this Court, or the supreme court of the state in
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30 Opinion of the Court 22-11421
which the case arose. Powell v. Snook, 25 F.4th 912, 920 (11th Cir.
2022). Second, they can show that a “broader, clearly established
principle should control the novel facts of the case.” Id. (quotation
omitted). Third, they can convince us—though this happens only
rarely—that the alleged conduct “so obviously violates the
constitution that prior case law is unnecessary.” Id. (alteration
adopted and quotation omitted). Under the second and third
methods, we look for obvious clarity: “a principle or provision so
clear that, even without specific guidance from a decision involving
materially similar facts, the unlawfulness of the officer’s conduct is
apparent.” Id.
A.
First, we consider whether Sergeant Wright was shielded by
qualified immunity when he barred McDonough from city hall.
Whatever else you could say about our earlier excavation of this
Circuit’s public forum precedents, it would be impossible to assert
that any of it was “clearly established.” We thus affirm the district
court’s grant of summary judgment to Wright on Count 3—
McDonough’s First Amendment claim—on the basis of qualified
immunity.
B.
The answer looks different for the claims against the officers
responsible for McDonough’s disorderly conduct arrests. For
qualified immunity, “an officer need not have actual probable
cause, but only ‘arguable’ probable cause.” Brown v. City of
Huntsville, 608 F.3d 724, 734 (11th Cir. 2010). Officers can show
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22-11421 Opinion of the Court 31
that arguable probable cause exists when “a reasonable officer,
looking at the entire legal landscape at the time of the arrests, could
have interpreted the law as permitting the arrests.” Garcia, 75 F.4th
at 1186 (quotation omitted). The “arguable probable cause inquiry
in a false arrest case is no different from the clearly established law
inquiry.” Id. at 1187.
Here, however, even that standard is not met. First,
Sergeant Wright’s arrest of McDonough for disorderly conduct
was based on cursing, flipping the bird, and crotch-grabbing.
Eleventh Circuit caselaw has long established that directing
profane language toward police officers, whether or not in the
presence of witnesses, does not constitute disorderly conduct.
Alston, 954 F.3d at 1319; Gold, 121 F.3d at 1446.
What’s more, expression remains protected by the First
Amendment whether communicated through words or their
physical equivalent. Davis, 598 F.2d at 919 n.5. That goes for
raising the middle finger as well as other profane gestures like
grabbing one’s crotch. See id. Based on this Circuit’s precedent,
any reasonable officer would know that raising the middle finger is
speech protected by the First Amendment.
Finally, as explained above, Florida law has clearly
established that the mere presence of bystanders is not enough to
provide probable cause for a disorderly conduct arrest without
evidence that the actions “were more than annoying to those
around them.” Gonzales, 287 So. 2d at 670; see Barry,934 So. 2d at 659
. So the fact that there were bystanders does not rescue
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32 Opinion of the Court 22-11421
Wright’s qualified immunity claim. For all these reasons, Wright
did not have even arguable probable cause to arrest McDonough
for disorderly conduct.
For his part, Garcia objects to being lumped in with Wright.
After all, he says, he arrived on the scene only after McDonough
had already been arrested. It’s true—an officer who participates in
an arrest but lacks “the requisite information to put him on notice
that an unlawful arrest was occurring or had occurred” cannot be
held secondarily liable. Wilkerson v. Seymour, 736 F.3d 974, 980
(11th Cir. 2013). The problem for Garcia is that he was not a bit
player. He authored McDonough’s arrest report, attesting that he
had “just and reasonable grounds to believe and does believe” that
McDonough had committed the crime of disorderly conduct. To
support the charge, he wrote that McDonough “grabbed his
genitals,” “raised his right middle finger” and “yelled, ‘fuck you’!”
And the basis for Garcia’s knowledge? He spoke to Wright and
personally reviewed the City’s surveillance tapes, which captured
the incident (and show, to be candid, even less of a ground for
arrest than Wright’s already insufficient description of the events).
In other words, Garcia’s understanding of McDonough’s
conduct was identical to Wright’s. If Wright should have known
that there was no probable cause to arrest McDonough, the same
goes for Garcia. But Garcia nevertheless participated in the arrest
and wrote the report while “fully aware” that the basis for the
arrest was insufficient. See Wilkerson, 736 F.3d at 980. We thus
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22-11421 Opinion of the Court 33
reverse the district court’s qualified immunity dismissal on Counts
5 and 6.
* * *
We affirm the district court’s grant of summary judgment
to the City on Count 7—the cyberstalking false arrest claim—and
to Wright on Count 3—the First Amendment claim. We reverse
the grant of summary judgment to the City on Counts 2 and 4, the
First Amendment and disorderly conduct false arrest claims,
respectively. We also reverse the grants of summary judgment to
Wright and Garcia on Counts 5 and 6, the Fourth Amendment
claims. Accordingly, we remand the case to the district court for
further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN
PART.
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