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[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-13508 ____________________ JOHN F. LABRIOLA, Plaintiff-Appellant, versus MIAMI-DADE COUNTY,

Defendant-Appellee.

____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:22-cv-23196-PCH ____________________ USCA11 Case: 23-13508 Document: 38-1 Date Filed: 07/03/2025 Page: 2 of 16

NEWSOM, Circuit Judge: When John Labriola was a media aide for the Miami-Dade Board of County Commissioners, he wrote an off-color opinion piece for an online newsletter. As a result, the County suspended him, ordered him to attend anti-discrimination training, and ulti- mately fired him. In the district court, Labriola alleged that the County retaliated against him for exercising his free-speech, free- exercise, and free-press rights, compelled him to express ideas with which he disagreed, and suspended him pursuant to an unconstitu- tionally overbroad policy. The district court granted summary judgment to the County on all counts. We affirm.

I A John Labriola was a media aide for the Miami-Dade Board of County Commissioners. Labriola v. Miami-Dade Cnty., 693 F.

Supp. 3d 1284, 1287 (S.D. Fla. 2023). In his own name and on his own time, Labriola wrote an opinion piece that criticized the Equality Act, an as-yet-unenacted bill that would prohibit discrimi- nation based on sex, sexual orientation, and gender identity. Id. at 1288. In his piece, Labriola used inflammatory language to de- scribe the LGBT people whom the bill sought to protect. He warned small-business owners “who resist surrendering their con- sciences to the new ‘tranny tyranny’” that, if the bill was passed, “[i]t’s going to be a choice of either baking that sodomy cake and hiring the scary-looking, child-molesting tranny with a beard or USCA11 Case: 23-13508 Document: 38-1 Date Filed: 07/03/2025 Page: 3 of 16

23-13508 Opinion of the Court 3 being drowned in legal bills and driven out of business.” Opinion Piece at 1, Dkt. No. 8-3. So too, Labriola warned local governments of what was to come: “No conservative small town in the South or Midwest will be safe from that weird study in perversity known as Drag Queen Story Hour, in which public libraries host a heavily made-up, flamboyant, homosexual pedophile in a dress who rolls around on the floor with little children as he reads them stories about gender fluidity and LGBT unicorns.” Id. Soon after, in an email to staff members of the Board of County Commissioners, a County citizen took issue with the opin- ion piece and questioned whether Labriola’s views represented the County’s. Labriola, 693 F. Supp. 3d at 1288. A County employee forwarded that email to the Miami Herald, after which the paper published an article describing the opinion piece as a “slur-laden tirade against transgender people.” Id. (citation modified). At that point, the County received a barrage of phone calls from con- cerned residents. Id. Labriola’s supervisor suspended him from work for three days without pay and ordered him to schedule “training regarding the County’s anti-discrimination policies” within seven days and to complete that training within 30 days. According to the Discipli- nary Action Report, Labriola’s supervisor’s employment decisions were partially grounded in Miami-Dade Implementing Order 7-45, an anti-discrimination policy that “prohibits all forms of discrimi- nation and harassment.” Implementing Order at 1, Dkt. No. 8-15.

Thirty days came and went, and, despite three written reminders, USCA11 Case: 23-13508 Document: 38-1 Date Filed: 07/03/2025 Page: 4 of 16

B Labriola sued, challenging his termination on multiple First Amendment grounds. First, he alleged that by suspending him and ordering him to attend training on account of the opinion piece, the County retaliated against him for engaging in activity protected by the Free Speech, Free Press, and Free Exercise Clauses. Next, he asserted that by terminating him on account of his failure to attend the training, the County retaliated against him for refusing to un- dergo compelled speech—the training, Labriola surmised, would have required him to say things with which he disagreed. Labriola also contended that his termination violated his rights under the Free Exercise Clause, as “[h]e refused to undergo the extra training out of his religious obligation to not (as he sees it) speak falsely about human sexuality.” Am. Compl. ¶ 177, Dkt. No. 8. Finally, Labriola alleged that the Implementing Order was unconstitution- ally overbroad.

The district court granted summary judgment to the County on all counts. It disposed of Labriola’s claims efficiently.

In one fell swoop, it granted summary judgment to the County on all of Labriola’s free-speech, free-exercise, and compelled-speech claims. Labriola, 693 F. Supp. 3d at 1291. Reasoning that the so- USCA11 Case: 23-13508 Document: 38-1 Date Filed: 07/03/2025 Page: 5 of 16

23-13508 Opinion of the Court 5 called Pickering-Connick test 1 applied to each of these claims—a contention with which Labriola agrees, except as to his compelled- speech claim—the district court applied that test to Labriola’s free- speech claim, ruled that the claim failed at the test’s balancing step, and concluded that his other claims likewise failed. Id. at 1290–91.

The court handled Labriola’s free-press claim differently, ruling that, because Labriola “is not a journalist,” he couldn’t bring a free- press claim. Id. at 1292. Finally, in its analysis of overbreadth, the district court compared the Implementing Order to the policy at issue in O’Laughlin v. Palm Beach County, 30 F.4th 1045 (11th Cir. 2022). Labriola, 693 F. Supp. 3d at 1291. Concluding that the Im- plementing Order wasn’t as broad as the policy at issue there, the district court granted summary judgment to the County. Id. This is Labriola’s appeal. He presents four issues for our re- view. First, he argues that his free-speech and free-exercise claims survive the Pickering-Connick test. Second, he challenges the district court’s holding that, as a non-journalist, he is ineligible to assert a free-press claim. Third, he argues that the court should have ana- lyzed his compelled-speech claim under Janus v. American Federation of State, County, and Municipal Employees, Council 31, 585 U.S. 878 (2018), rather than the Pickering-Connick test. Fourth, he reiterates

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These claims are rooted in the First Amendment—as incorporated through the Fourteenth—which prohibits the government from “mak[ing any] law . . . prohibiting the free exercise [of religion]; or abridging the freedom of speech, or of the press.” U.S. Const. amend. I. “[T]he law is well-established that the state may not de- mote or discharge a public employee in retaliation for” exercising his First Amendment rights. See Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989). But a public employee’s First Amend- ment rights are “not absolute.” Id. That’s because “the State’s in- terest as an employer in regulating the speech of its employees dif- fers significantly from those it possesses in connection with regula- tion of the speech of the citizenry in general.” Cook v. Gwinnett Cnty. Sch. Dist., 414 F.3d 1313, 1318 (11th Cir. 2005) (citation mod- ified). To accommodate the dueling interests of employee and em- ployer, we use a four-factor test derived from Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983): To prevail [on a First Amendment claim], an em- ployee must show that: (1) the speech involved a mat- ter of public concern; (2) the employee’s free speech We review the grant of summary judgment de novo. Anthony v. Georgia, 69 F.4th 796, 804 (11th Cir. 2023).

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23-13508 Opinion of the Court 7 interests outweighed the employer’s interest in effec- tive and efficient fulfillment of its responsibilities; and (3) the speech played a substantial part in the adverse employment action. If an employee satisfies her bur- den on the first three steps, the burden then shifts to the employer [4] to show by a preponderance of the evidence that it would have made the same decision even in the absence of the protected speech.

Cook, 414 F.3d at 1318 (citation modified).

Labriola contends that the district court misapplied the Pick- ering-Connick test to his free-speech and free-exercise claims.3 The first step of that test requires us to evaluate whether Labriola’s speech involved a matter of public concern. Cook, 414 F.3d at 1318.

Here, the parties agree that it did. See Labriola, 693 F. Supp. 3d at 1290. So we begin at the second step: whether Labriola’s free- speech interests outweighed the County’s interest in effective and efficient fulfillment of its responsibilities. Cook, 414 F.3d at 1318.

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In order to balance Labriola’s free-speech interests against the County’s efficiency interests, we must consider several factors, including “(1) whether the speech at issue impedes the govern- ment’s ability to perform its duties efficiently, (2) the manner, time and place of the speech, and (3) the context within which the speech was made.” Morales v. Stierheim, 848 F.2d 1145, 1149 (11th Cir. 1988). Taken together, these factors defeat Labriola’s claim.

A First, did Labriola’s speech impede the government’s ability to perform its duties efficiently? The Supreme Court has “recog- nized as pertinent considerations whether the statement impairs discipline by superiors or harmony among co-workers, has a detri- mental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” Rankin v. McPherson, 483 U.S. 378, 388 (1987).

There is evidence that the opinion piece “impair[ed] . . . har- mony among co-workers.” See id. After one staff member read the opinion piece, she told Labriola’s supervisor that she found it “[v]ery upsetting” because “she was offended by the words he used.” Vega Dep. 31:10–14, Dkt. No. 45-4. Other coworkers were apparently shocked. Labriola’s supervisor stated, “I think people just couldn’t believe it.” Id. at 33:2. Referring to one of Labriola’s coworkers in particular, his supervisor recounted that “she knew USCA11 Case: 23-13508 Document: 38-1 Date Filed: 07/03/2025 Page: 9 of 16

23-13508 Opinion of the Court 9 John, and she said something like I can’t believe he would use those offensive words.” Id. at 33:12–13.

The record also indicates that the opinion piece had “a det- rimental impact on close working relationships for which personal loyalty and confidence are necessary.” See Rankin, 483 U.S. at 388.

Labriola’s supervisor testified that after she learned of the opinion piece, she “kind of lost confidence in him.” Vega Dep. 37:12–13.

She elaborated: “[A]s my number [two], I would sometimes talk to him about certain things that pertained to each office that, you know, [we] kept to ourselves”—i.e., confidential things—“so I just felt like I couldn’t speak to him freely about those things anymore or get his opinion on certain things.” Id. at 37:15–20. Moreover, she specified that it was because “the words that he used in the ar- ticle were offensive to [her]” that she “couldn’t really speak to him freely about things anymore.” Id. at 38:20–23.

Finally, there is ample evidence that the opinion piece “in- terfere[d] with the regular operation of the enterprise.” See Rankin, 483 U.S. at 388. The piece “brought a lot more work” to the office, in part because, following its publication, the office received “a lot of phone calls.” Vega Dep. 29:20–21, 35:8–9. According to Labri- ola’s supervisor, no other event had ever “caused such a large num- ber of phone calls.” Id. at 39:10–14. Confirming this description, the Chairman’s chief of staff testified that the calls “became such a problem that it really prevented us from doing our day-to-day op- erations during those days.” Lopez Dep. 75:5–7, Dkt. No. 45-15.

He continued: “[W]e had to refocus a lot of our attention from USCA11 Case: 23-13508 Document: 38-1 Date Filed: 07/03/2025 Page: 10 of 16

On the whole, the evidence indicates that the opinion piece “impede[d] the government’s ability to perform its duties effi- ciently.” See Morales, 848 F.2d at 1149. Had Labriola presented any evidence to the contrary, there might have been a genuine issue of material fact. But he didn’t, and so there isn’t.

B Second, time, place, and manner. Labriola has time and place in his favor: He was off-duty and away from work when he wrote the opinion piece—a time and place at which his speech enjoys greater constitutional protection. See Waters v. Chaffin, 684 F.2d 833, 837–38 (11th Cir. 1982) (holding that a public employee had “an interest in being free from unnecessary work-related re- strictions while off-duty[,] . . . after he had left work, while he was out of uniform, [and] while he was out of the department’s juris- diction”).

But manner weighs heavily against him. “If the manner and content of an employee’s speech is disrespectful, demeaning, rude, and insulting, and is perceived that way in the workplace, the gov- ernment employer is within its discretion to take disciplinary ac- tion.” Mitchell v. Hillsborough Cnty., 468 F.3d 1276, 1288 (11th Cir. 2006) (citation modified). To put it mildly, the opinion piece was “disrespectful, demeaning, rude, and insulting.” See id. And, based USCA11 Case: 23-13508 Document: 38-1 Date Filed: 07/03/2025 Page: 11 of 16

23-13508 Opinion of the Court 11 on the shock and appall of his coworkers, it was clearly perceived that way at the office.

C Third, context. Precedent in both the Supreme Court and this Court has emphasized that the state possesses a greater interest in controlling employee speech when it occurs in public, rather than private. See Morales, 848 F.2d at 1150 (“While Morales’ poor choice of words in criticizing [the Melrose Board’s chairman] might be less significant in a private context, when spoken at the public meetings of the Board these remarks impeded [his public em- ployer]’s interests in Melrose.” (footnote omitted)); Rankin, 483 U.S. at 389 (“Nor was there any danger that McPherson had dis- credited the office by making her statement in public.”); Waters, F.2d at 838–39 (“We do not doubt that the department may restrict the actions of its off-duty officers in many ways, but it does not follow that these off-duty restrictions may unnecessarily im- pinge upon private, social conversation.” (footnote omitted)). Lab- riola disseminated his views through an opinion piece in a public, online newsletter—as opposed to, say, a private conversation with a friend. So “context” indicates that Labriola’s interest in his speech is limited. *** On balance, these factors make clear to us that the County’s interest in effective and efficient fulfillment of its responsibilities outweighs Labriola’s free-speech interests. Accordingly, we hold that the County prevails at the second, balancing step of the USCA11 Case: 23-13508 Document: 38-1 Date Filed: 07/03/2025 Page: 12 of 16

III Labriola also challenges the district court’s holding that be- cause he “is not a journalist,” he can’t bring a free-press claim. Lab- riola, 693 F. Supp. 3d at 1292. Labriola is right that the district court erred in so holding. See Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (holding that “[f]reedom of the press is a fundamental personal right which is not confined to newspapers and periodicals” (citation modified)). Even so, his free-press claim fails on the merits.

Labriola’s only substantive argument is that “even if [his] freedom of the press claim sinks or swims with his other First Amendment claims (as the district court implies), it swims in this case because the other First Amendment claims succeed.” Br. of Appellant at 40 (footnote omitted). But as just explained, his free- speech and free-exercise claims fail. Labriola might have offered additional free-press arguments, separate from those underlying his First Amendment arguments. But he didn’t, so his free-press claim sinks along with them.

Accordingly, we affirm the district court’s judgment reject- ing Labriola’s free-press claim.

IV Next, Labriola contends that the district court erred in re- jecting his compelled-speech claim. In particular, Labriola takes is- sue with the district court’s application of the Pickering-Connick test USCA11 Case: 23-13508 Document: 38-1 Date Filed: 07/03/2025 Page: 13 of 16

23-13508 Opinion of the Court 13 to his compelled-speech claim. The court, he insists, should have applied Janus v. American Federation of State, County, and Municipal Employees, Council 31, 585 U.S. 878 (2018). See Br. of Appellant at 37.

To Labriola’s credit, Janus did call Pickering a “poor fit” for compelled-speech claims. 585 U.S. at 909. Ultimately, though, the Court there held that the question whether “Pickering applies at all to compelled speech” was “a question that [it would] not decide.” Id. at 908. And most problematically for Labriola, Janus didn’t pur- port to establish a new or different compelled-speech test for gov- ernment employees. Instead, to reach its holding that the state’s compulsion of speech was unconstitutional, it employed a modi- fied version of the Pickering test. Id. at 909–916.

In the years since Janus, neither the Supreme Court nor this Court has clarified what legal test governs public-employee com- pelled-speech claims. Happily, we needn’t resolve that question today because, as a threshold matter—and irrespective of the appli- cable framework—we must first determine whether the record ev- idence supports a finding that the County compelled Labriola to speak. It doesn’t.

Labriola asserts that “there is a good possibility that in th[e] [anti-discrimination] training session, the instructor would have pressured or forced [him] to recant his views and/or to say things that he disagrees with.” Br. of Appellant at 38. In particular, Lab- riola suggests that the training would have compelled him to disa- vow his opposition to “transgenderism, homosexual marriage, and USCA11 Case: 23-13508 Document: 38-1 Date Filed: 07/03/2025 Page: 14 of 16

The presentation mentioned such issues only twice: (1) by listing “sexual orientation” and “gender identity or expression” as among twelve “[p]rotected [c]lasses,” and (2) by including “LGBTQ Aware- ness” as one of seven training modules available to—but not re- quired of—County employees. Overview of the County’s Anti- Discrimination Policy at 6, 24, Dkt. No. 1-20. Labriola offers no evidence to the contrary—he relies solely on his conjecture that there was a “good possibility” that he would have been made to say something with which he disagreed. Even construed in the light most favorable to him, see Fed. R. Civ. P. 56, his allegation is rank speculation. And “[s]peculation does not create a genuine issue of fact.” Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005).

We accordingly affirm the district court’s judgment reject- ing Labriola’s compelled-speech claim.

V Finally, Labriola raises a facial overbreadth challenge to the Implementing Order on which the County partially grounded its employment decisions. 4 The policy, which applies to all County

4 Labriola purports to bring both facial and as-applied overbreadth claims. But an overbreadth claim is never as-applied; it is, by its nature, a facial challenge.

See United States v. Williams, 553 U.S. 285, 292 (2008) (“According to our First USCA11 Case: 23-13508 Document: 38-1 Date Filed: 07/03/2025 Page: 15 of 16

23-13508 Opinion of the Court 15 employees, “prohibits all forms of discrimination and harassment.”

Implementing Order at 1. It defines “unlawful harassment” as “un- welcome conduct based on a protected class where the conduct: (1) [h]as the purpose or effect of creating an intimidating, hostile, humiliating, or offensive working environment; (2) [h]as the pur- pose or effect of unreasonably interfering with a person’s work per- formance; or (3) [o]therwise adversely affects a person’s employ- ment opportunities.” Id. at 3.

Labriola’s overbreadth claim fails at the gate. The Supreme Court has held that in order to succeed on a facial overbreadth chal- lenge, an “appellant must demonstrate from the text of [the law] and from actual fact that a substantial number of instances exist in which the [l]aw cannot be applied constitutionally.” New York State Club Ass’n, Inc. v. City of New York, 487 U.S. 1, 14 (1988). And where the appellant hasn’t “describe[d] the instances of arguable over- breadth of the contested law,” a court generally will “not apply the strong medicine of overbreadth analysis.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008) (citation modified).

Here, Labriola hasn’t described the instances in which the Implementing Order couldn’t be applied constitutionally. Accord- ingly, we decline to administer the overbreadth doctrine’s “strong

Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech.” (emphasis added)).

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VI For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to the County on all counts. 5