Federal appellate court rules Jacksonville city council did not violate Florida pastor’s Free Speech rights

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The 11th U.S. Circuit Court of Appeals ruled that a Florida pastor’s Free Speech rights were not violated when the Jacksonville City Council cut off his microphone during an invocation. 

Key Players

Rev. R.L. Gundy, a pastor at Mt. Sinai Missionary Baptist Church, sued Aaron Bowman, the former Jacksonville City Council president, for cutting off his microphone during an invocation prayer.

Further Details

On March 12, 2019, Rev. R.L. Gundy delivered a four-minute prayer at a Jacksonville City Council meeting. He began by mentioning pollution and environmental damage and criticizing violence in the city. Once he began criticizing the city’s executive and legislative branches, his microphone was cut off.

Notably, Gundy had supported then-mayoral candidate and Councilmember Anna Brosche, while the then-council president, Aaron Bowman, supported Lenny Curry, Brosche’s opponent.

In July of the same year, Gundy filed a lawsuit against Bowman and the city, alleging his Free Speech rights were violated.  

Jacksonville has a long tradition of inviting a “Chaplain of the Council” to deliver “a prayer/invocation” during city council meetings. Gundy’s lawsuit stated that previous speakers had proceeded “unimpeded and without restraint,” suggesting Bowman cut off Gundy because of political disagreement. The lawsuit asserts that the interference was intended to “restrain the free exercise of religion and speech by Pastor Gundy.”

The lawsuit aimed to ensure “our city, our city government, our City Council, and its leaders abide by all citizens’ rights under the U.S. Constitution and the Florida Constitution.”

Following the March meeting, Bowman introduced several measures to qualify his actions as appropriate. In May, Bowman issued a memorandum to “ensure that the Council’s tradition of offering invocations at the beginning of its meetings complies with constitutional requirements.” The memorandum placed several restrictions on prayer, including a two-minute time limit and restrictions on criticism.

On Oct. 14, the city and Bowman asked the court to dismiss Gundy’s lawsuit, arguing his First Amendment rights had not been violated, because of the “limited and focused purpose” of his speech, which was meant “to offer up a religious benediction to the nineteen-member City Council.” The motion was dismissed and denied in part. 

On March 22, 2021, U.S. District Judge Brian J. Davis, nominated by former President Barack Obama, dismissed the charges against Bowman, finding he was entitled to qualified immunity, as there was no “clearly established” statutory or constitutional right that Bowman should have been aware of prior to silencing the microphone. 

It was further determined that the free exercise claims against the city were invalid, as the “city’s flexibility to limit speech is … at its highest when the speech is made in a nonpublic forum.” In this instance, the government was allowed to “enforce content-based restrictions on speech to ensure an invocation is preserved for its intended purpose.”

Gundy then appealed the ruling. 

 Outcome

Appellate court rules against Gundy

On Sept. 30, 2022, the 11th U.S. Circuit Court of Appeals ruled that Gundy’s First Amendment rights had not been violated, as his comments constituted “government speech.” 

Circuit Judge Barbara Lagoa, nominated by former President Donald Trump, wrote the opinion on behalf of the three-judge panel. The appellate court conceded language from Marsh v Chambers, a federal case in which the U.S. Supreme Court found that prayers before government proceedings were “deeply embedded in the history and tradition of this country.” 

However, Lagoa wrote that the “City Council exerts control over the messages conveyed by invocation speakers because inviting speakers to give invocations inherently exhibits governmental control over the invocation messages from the outset of the selection process.” 

As the invocation was a “nonpublic forum,” the government was permitted to limit what speech could be shared. When Gundy transitioned from spiritual reflection to political commentary, he exceeded the boundaries of his invitation, Lagoa wrote. There was no indication of dissent by the other judges on the panel.