Federal appellate court rules DeSantis violated former state attorney’s First Amendment rights

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The 11th U.S. Circuit Court of Appeals unanimously ruled in favor of a former Florida state attorney, who filed a federal lawsuit after Gov. Ron DeSantis suspended him for defending transgender and abortion rights. 

Key Players

Andrew Warren (D) has served as the state attorney for Florida’s 13th Judicial District, located in Hillsborough County, encompassing Tampa. Twice elected, he first assumed office in 2017. 

Gov. Ron DeSantis (R), a staunch conservative, has been rumored to be considering a run for the Republican presidential nomination in 2024. He assumed office in January 2019. 

Further Details

On June 1, 2021, DeSantis signed the “Fairness in Women’s Sports Act,” which prevents transgender women from participating on public school sports teams. On June 9, he said he would ban minors from receiving gender-affirming surgeries, The Daily Caller reported. 

That same month, Warren signed a joint statement with other elected prosecutors that condemned “the criminalization of transgender people and gender-affirming healthcare,” proclaiming that “equal protection of the law has consistently been denied to transgender people” in the United States.  

On June 24, 2022, following the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, overturning the constitutional right for Americans to have an abortion, Warren signed another joint statement with felow prosecutors, expressing a firm stance against the anti-abortion ruling. The prosecutors declined “to criminalize reproductive health decisions” and committed themselves to “refrain from prosecuting those who seek, provide, or support abortions.”

On Aug. 4, DeSantis filed an executive order suspending Warren, whose refusal to prosecute abortion cases, DeSantis said, demonstrated incompetence and a neglect of duty.  The governor alleged that “although the Florida Legislature has not enacted such criminal laws, these statements prove that Warren thinks he has the authority to defy the Florida Legislature and nullify in his jurisdiction criminal laws with which he disagrees.” 

Three days later, Warren released a video on Twitter, calling for public support against DeSantis. On Aug. 17, he filed a federal lawsuit against the governor, citing his “unlawful suspension.”  

“The governor has broken two laws. He’s violated my First Amendment rights by retaliating against me for speaking out on abortion and transgender rights, and he’s violated the Florida Constitution by removing me from office without any legal justification,” Warren stated in another video on Twiter. 

At a Tallahassee news conference later that day, Warren questioned what DeSantis’s order meant for Free Speech in Florida. “If the governor’s allowed to do this, what’s left of democracy? If the governor’s allowed to retaliate against me for speaking out, what’s left of the First Amendment?” he asked.

Federal judge declines to reinstate Warren, urges quick trial of his lawsuit 

On Sept. 19, U.S. District Court Judge Robert Hinkle, who was nominated by former President Bill Clinton, denied Warren’s request for a preliminary injunction reinstating him, ruling instead that a trial of his lawsuit should take place as soon as possible. 

Hinkle said there was insufficient evidence for DeSantis to suspend Warren, but worried that granting the injunction could be disruptive, “potentially fluctuating Warren back in and out of office amid appeals.” WPTV reported.

“There is so much more at stake than my job. This is about making sure our elections have meaning. Making sure that no one, not even the governor, can overturn an election,” Warren said. 

Warren added that he believed that Hinkle “was very clear. He wants to get this right once and for all,” noting that his team looked forward to “a trial where the governor can come in and explain his decision and explain to the court why he thinks what he did was in compliance with federal law and state law.”

“We are pleased that the court denied Andrew Warren’s request for a preliminary injunction,” said Taryn Fenske, DeSantis’s communications director. “The Governor is entrusted by the people of Florida to utilize his constitutional powers and may suspend elected officials in Florida who refuse to enforce the law.”

DeSantis had motioned the court to dismiss the case, claiming that “Mr. Warren had no First Amendment right, as a public official, to declare that he would not perform his duties under Florida law.” Hinkle denied the motion, setting a November 2022 trial date to settle the issue “once and for all.”

Hinkle dismisses lawsuit, declines to reinstate Warren

On Jan. 20, Hinkle ruled that DeSantis’ suspension of Warren violated Florida’s Constitution and partially the First Amendment. 

However, Hinkle found that because of Warren’s position as a “reform prosecutor” standing in opposition to DeSantis, the joint statements Warren signed that were his protected speech were “not essential” to his suspension. Because federal courts cannot rule against state officials based on a violation of state law, Hinkle dismissed the lawsuit and did not reinstate Warren. 

Hinkle wrote that the 11th Amendment prohibited “a federal court from awarding declaratory or injunctive relief of the kind at issue against a state official based only on a violation of state law,” The New York Times reported.

Taryn M. Fenske, DeSantis’ communications director, called the decision “a win for the governor and a win for the people of Florida,” shortly following its release.

At a press conference, Warren stated that “the idea that a governor can break federal and state law to suspend an elected official should send shivers down the spine of anyone who cares about free speech, the integrity of our elections or the rule of law — three core principles on which our democracy is built.”

Outcome

Appellate Court rules DeSantis violated Warren’s First Amendment Rights 

On Jan. 10, 2024, a three-judge panel of the 11th U.S. Circuit Court of Appeals unanimously found that Warren’s speech was protected under the First Amendment. Warren had appealed Hinkle’s ruling after Hinkle rejected Warren’s claims that DeSantis violated his First Amendment rights. 

The decision from the court asserted that DeSantis “must prove that unprotected actions such as Warren’s actual performance or his policies, motivated him to suspend Warren.” The ruling came 48 hours after Warren announced he would not seek reelection for a third term, claiming DeSantis would replace him with an unelected political appointee if he won

Jeremy Redfern, a spokesperson for DeSantis, called the ruling “an egregious encroachment on state sovereignty,” and said the governor’s office was considering seeking an en banc review by the full appellate court or filing a petition for a writ of certiorari with the U.S. Supreme Court. 

As of Feb. 23, there were no further developments.