Opinion
Case No. 1:20-cv-22583-UU
2020-11-30
Jared MCGRIFF, Octavia Yearwood, Naiomy Guerrero, and Rodney Jackson, Plaintiffs, v. CITY OF MIAMI BEACH, Dan Gelber in his official capacity as Mayor of the City of Miami Beach and in his individual capacity, and Jimmy Morales in his official capacity as City Manager of the City of Miami Beach and in his individual capacity, Defendants.
Daniel Boaz Tilley, ACLU Foundation of Florida, Inc., Alan Levine, Pro Hac Vice, Matthew McElligott, c/o Valiente, Carollo & McElligott, PLLC, Miami, FL, for Plaintiffs. Robert F. Rosenwald, Jr., City of Miami Beach City Attorney's Office, Miami Beach, FL, for Defendant City of Miami Beach.
Daniel Boaz Tilley, ACLU Foundation of Florida, Inc., Alan Levine, Pro Hac Vice, Matthew McElligott, c/o Valiente, Carollo & McElligott, PLLC, Miami, FL, for Plaintiffs.
Robert F. Rosenwald, Jr., City of Miami Beach City Attorney's Office, Miami Beach, FL, for Defendant City of Miami Beach.
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS
URSULA UNGARO, UNITED STATES DISTRICT JUDGE
THIS CAUSE comes before the Court on (1) Defendant City of Miami Beach's Motion to Dismiss Plaintiffs’ First Amended Complaint, or, in the Alternative, for Summary Judgment (D.E. 21) (the "City's Motion"); (2) Defendant Mayor Dan Gelber's Motion to Dismiss Plaintiffs’ First Amended Complaint, or, in the Alternative, for Summary Judgment (D.E. 22) (the "Mayor's Motion"); and (3) Defendant City Manager Jimmy Morales's Motion to Dismiss Plaintiffs’ First Amended Complaint, or, in the Alternative, for Summary Judgment (D.E. 23) (the "City Manager's Motion").
THE COURT has considered the Motions, pertinent portions of the record, and is otherwise fully advised in the premises.
I. Background
To resolve the pending Motions, the Court accepts as true the facts alleged in Plaintiffs’ First Amended Complaint (the "Complaint") (D.E. 9), and relies on the stipulated facts and documents supplied by the parties (D.E. 13 & D.E. 18).
A. The Parties
Plaintiff Jared McGriff ("McGriff") is an artist and marketing manager. Compl. ¶ 16. Plaintiff Octavia Yearwood ("Yearwood") is an artist, arts educator, and art curator. Id. ¶ 19. Plaintiff Rodney Jackson ("Jackson") is an artist and art curator. Id. ¶¶ 12, 15. Plaintiff Naiomy Guerrero ("Guerrero") is an art curator who, at the time of these events, was a curatorial fellow at the Pérez Art Museum of Miami ("PAMM"). Id. ¶ 21.
Defendant City of Miami Beach (the "City") is a municipality organized and existing under the laws of the State of Florida and located in Miami-Dade County, Florida. Id. ¶ 22. Defendant Dan Gelber ("Mayor Gelber") was the Mayor of the City of Miami Beach at the time of the facts alleged. Id. ¶ 23. Defendant Jimmy Morales ("City Manager Morales") was the City Manager of the City of Miami Beach at the time of the facts alleged. Id. ¶ 24. Mayor Gelber and City Manager Morales are being sued in their individual and official capacities. Id. ¶¶ 23, 24.
B. ReFrame Miami Beach
Miami Beach has an ugly history of racism, segregation, and discrimination. See id. ¶ 2. In recent years, the response of local law enforcement to the celebration of Memorial Day, which, on Miami Beach, has come to be known as Urban Beach Weekend ("UBW"), has reminded some of that troubled history. Id. ¶ 3. Over the past decade, tens of thousands of students and other young people, most of them Black and Latino, have come to Miami Beach during UBW. Id. ¶ 3. During UBW in 2011, Raymond Herisse ("Herisse"), a Black, Haitian-American man, was shot and killed by Miami Beach police officers. Id. ¶ 5; D.E. 21-1.
In the Spring of 2019, the City decided to fund the creation of a series of art installations for display on Miami Beach during that year's UBW. Compl. ¶ 1. Calling the project "ReFrame Miami Beach," the City said that "ReFrame sparks crucial conversations about inclusion, surveillance, and propaganda using the works of local artists, curators, and organizers." Id. ¶ 25. The theme of the event was to be "Trust as Currency." Id.
In April 2019, Plaintiffs McGriff and Yearwood discussed ReFrame Miami Beach with two City employees in the City's Department of Tourism and Culture: Director Matt Kenney ("Kenney") and Cultural Affairs Manager Brandi Reddick ("Reddick"). Id. ¶ 26. McGriff and Yearwood began working on the project shortly thereafter and contacted others in the arts community, including Plaintiffs Jackson and Guerrero, to participate in the project. Id. ¶¶ 27, 28.
On May 9, 2019, McGriff and the City signed a Professional Services Agreement pursuant to which Quinn Projects LLC, McGriff's production company, would provide certain production services. Id. ¶ 29; D.E. 9-1. The same day, Yearwood and the City signed a Professional Services Agreement pursuant to which Team Ohhh LLC, Yearwood's production company, would provide certain production services. D.E. 13-2. The two Professional Services Agreements are essentially identical and will be referred to as the "Agreement" for ease of reference. The Agreement refers to Quinn Projects LLC and Team Ohhh LLC as the Consultant(s), and "[f]or the purposes of this Agreement, Consultant shall be deemed to be an independent contractor ... of the City." D.E. 9-1 at 1; D.E. 13-2 at 1. Under the Agreement, Quinn Projects LLC and Team Ohhh LLC were to co-produce the Project described in Exhibit A. D.E. 9-1 at 2; D.E. 13-2 at 2.
Exhibit A, titled "Scope of Services," states that Quinn Projects LLC and Team Ohhh LLC "would provide the cultural programming for ‘Trust as Currency’ for Memorial Day Weekend, May 23–27, 2019." D.E. 9-1 at 13; D.E. 13-2 at 13. Exhibit A noted that the art installation that the Quinn Projects LLC and Team Ohhh LLC would exhibit at Lincoln Road in an "empty storefront" was to be called "I See You, Too ," which was to be "about how propaganda and misinformation have compromised us." D.E. 9-1 at 13; D.E. 13-2 at 13. The City entered into a Temporary License Agreement with a third-party limited liability company, whereby the licensee City agreed to license the privately-owned building located at 737 Lincoln Road, Miami Beach, Florida 33139, from May 6, 2019 through May 31, 2019, "for the sole purpose of gallery exhibits." D.E. 13-5.
Section 2.1 of the Agreement provides that "all services provided by the Consultant shall be performed in accordance with the Proposal and to the reasonable satisfaction of the City Manager." Id. Exhibit A states that "[a]ll installations shall be subject to review and approval by the City Manager's designee." D.E. 9-1 at 13; D.E. 13-2 at 13. Section 9.3, titled "Patent Rights; Copyright; Confidential Findings," states that any work produced for the exhibits and installations "are intended to be the sole and exclusive property of the City" and "shall not otherwise be made public and/or disseminated by Consultant, without the prior written consent of the City Manager." Id. at 7.
Under the Agreement, the I See You, Too installation was to be co-curated by Yearwood and Guerrero; the Agreement does not mention Jackson. D.E. 9-1 at 13; D.E. 13-2 at 13. In discussing what would be exhibited in I See You, Too , Plaintiffs stressed that their central commitment, in conformity with the purpose of ReFrame, was depicting the truth about the City's historical relationship with the Black community, as well as to permit open and honest conversations about that history. Compl. ¶ 34.
C. The Herisse Memorial
Plaintiffs curated and/or created works for I See You, Too in accordance with the Agreement. Id. ¶ 35. There were several sections in I See You, Too , including a "Memorial to Raymond Herisse" painting (the "Herisse Memorial"), which Jackson created. Id. ; D.E. 9-2. The Herisse Memorial included a 4x4 foot vinyl portrait, with written text next to it stating the following:
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 vehicle, 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 motorists, 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 #blacklivesmatter and call into question the excessive force, racial discrimination, violence, and aggression often present in interactions between police and unarmed black civilians
Id. ¶ 35; D.E. 9-3 (copy of description). "In addition, candles had been placed below the image to convey the sense that the piece was intended as a memorial to celebrate the life of Raymond Herisse." Compl. ¶ 35(b).
On May 25, 2019, Kenney spoke to Yearwood and advised that the Miami Beach Police Department objected to the Herisse Memorial and that the City required that the Herisse Memorial be taken down, and that if it was not taken down, the entire I See You, Too installation would be closed. Id. ¶¶ 36, 37. That afternoon, Plaintiffs took down the Herisse Memorial. Id. ¶ 38. In its place, they posted a sign that read, "This artwork has been removed at the request of the Miami Beach Police." Id.
A few days later, a City spokesperson commented on the removal of the Herisse Memorial. Id. ¶ 39. While stating that the "purpose of the ReFrame cultural programming this past weekend was to create an opportunity for inclusiveness and mutual exchange," the spokesperson said that the "City Manager felt that the panel in the one particular art installation regarding the incidents of Memorial Day weekend in 2011 did not achieve this objective." Id. (quoting Jessica Lipscomb, Miami Beach Censors Black Artist's Tribute to Police-Shooting Victim , MIAMI NEW TIMES (May 29, 2019 8:04 a.m.), https://www.miaminewtimes.com/news/miami-beach-city-manager-asks-for-removal-ofartwork-memorializing-police-shooting-victim-11183147).
On November 7, 2019, at a forum called "Community Night: For Freedoms Town Hall" at PAMM, an audience member, referring to the removal of the Herisse Memorial, asked Mayor Gelber about the "act of censorship" that had occurred the last Memorial Day weekend on Miami Beach. Id. ¶ 41. Mayor Gelber explained that City Manager Morales made the decision to take down the Herisse Memorial. Id. ¶ 42. According to Mayor Gelber, City Manager Morales said, "I don't like [the Herisse Memorial], and I don't want it." Id. He also said that City Manager Morales thought he had the power to order the painting's removal because the City was "paying for it." Id. Mayor Gelber stated that he supported City Manager Morales's decision and would not reverse it, although he had the power to do so. Id. ¶ 43.
D. The Claim
Plaintiffs bring one claim pursuant to 42 U.S.C. § 1983. Id. ¶ 11. Plaintiffs allege that Defendants’ actions violated their First Amendment rights and amounted to unconstitutional viewpoint censorship. See id. ¶ 51. Plaintiffs ask the Court to: (1) enter a judgment declaring that Defendants violated Plaintiffs’ First Amendment rights by demanding that Plaintiffs take down the Herisse Memorial; (2) issue a permanent injunction requiring that Defendants display the Herisse Memorial in a public place comparable to the space in which it would have been displayed during Memorial Day weekend in 2019, and for a comparable period of time; (3) award against all Defendants compensatory damages, and, against Mayor Gelber and City Manager Morales, punitive damages, in an amount to be determined at trial; (4) award costs and attorney's fees pursuant to 42 U.S.C. § 1988 ; and (5) grant or award such other relief as this Court deems just and proper. Id. at 11.
E. The Motions
The City argues that this action should be dismissed for the following reasons: (1) Plaintiffs lack standing; (2) Plaintiffs’ claim is both moot and unripe; (3) Plaintiffs’ allegations do not implicate any First Amendment right pursuant to the government speech doctrine; (4) Plaintiffs’ allegations do not implicate any First Amendment right because their alleged protected expression was made pursuant to their official duties as contractors and subcontractors of the City; and (5) even if Plaintiffs’ allegations implicated any cognizable First Amendment right, that claim would fail under traditional forum analysis. D.E. 21 at 7–8. Mayor Gelber adopts the City's arguments and further argues that: (1) the official capacity allegations against him lack legal basis and must be dismissed; (2) he is entitled to absolute legislative immunity; and (3) he is entitled to qualified immunity. D.E. 22. City Manager Morales adopts the City's arguments and further argues that: (1) the official capacity allegations against him also lack legal basis and must be dismissed; and (2) he is entitled to qualified immunity. D.E. 23. The Motions are ripe for disposition.
II. Legal Standard
While the Court must consider the allegations contained in the plaintiff's complaint as true, this rule "is inapplicable to legal conclusions." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In addition, the complaint's allegations must include "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).
In practice, to survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim of relief that is plausible on its face.’ " Id. (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. The plausibility standard requires more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id. Determining whether a complaint states a plausible claim for relief is a context-specific undertaking that requires the court to draw upon its judicial experience and common sense. Id. at 679, 129 S.Ct. 1937.
If a district court considers matters outside of the pleadings when ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), then the motion to dismiss must be treated as a motion for summary judgment under Federal Rule of Civil Procedure 56. See Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1371 (11th Cir. 1997) (per curiam); Fed. R. Civ. P. 12(d). However, the district court need not convert a motion to dismiss into one for summary judgment where the documents are (1) central to the plaintiff's claims and (2) undisputed. See Day v. Taylor , 400 F.3d 1272, 1276 (11th Cir. 2005). Further, in general, "summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery." Snook v. Trust Co. of Georgia Bank of Savannah , N.A., 859 F.2d 865, 870 (11th Cir. 1988).
III. Analysis
A. The Court Will Not Convert the Motions to Dismiss into Motions for Summary Judgment
As a preliminary matter, the Court declines to convert the Motions to motions for summary judgment. Defendants move to dismiss the Complaint, or, in the alternative, for summary judgment. Plaintiffs oppose summary judgment because "discovery has yet to begin, let alone conclude," therefore summary judgment would be premature. D.E. 24 at 1. Because, as explained below, the applicability of the government speech doctrine on which Defendants rely requires factual development beyond what appears in the current record and no discovery has been taken to date, the Court agrees that summary judgment consideration is premature at least with respect to the City's liability.
Nonetheless, the Court considers all of the facts and documents to which the parties have stipulated and rely on to argue their respective positions. See D.E. 13; D.E. 18. Other than the First Amended Complaint, these documents include: (1) the two essentially identical Professional Services Agreements (D.E. 13-1 & 13-2); (2) two Letters to Commission from City Manager Jimmy Morales to the City's Mayor and Commission regarding the event (D.E. 13-3 & 13-4); (3) the Temporary License Agreement (D.E. 13-5); (4) a transcript of remarks made by Mayor Gelber regarding the event on November 7, 2019 (D.E.13-6); and (5) ReFrame Miami Beach promotional materials (D.E. 18-1 & 18-2).
B. Justiciability
Federal courts are courts of limited jurisdiction. See, e.g. , Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The most fundamental limits on the federal judicial power are specified in Article III of the United States Constitution, which grants federal courts jurisdiction over enumerated categories of cases and controversies. U.S. CONST. art. III, § 2. This case-or-controversy requirement includes three familiar strands: (1) standing, (2) ripeness, and (3) mootness. Christian Coal. of Fla., Inc. v. United States , 662 F.3d 1182, 1189 (11th Cir. 2011). Here, Defendants argue that Plaintiffs lack standing and that their claims are moot and unripe. D.E. 21 at 8–13.
i. Standing
Standing is "perhaps the most important," or, alternatively, the "most central," of Article III's jurisdictional prerequisites. See Fla. Pub. Interest Research Grp. Citizen Lobby, Inc. v. EPA , 386 F.3d 1070, 1082–88 (11th Cir. 2004). "[T]he party invoking federal jurisdiction bears the burden of proving standing." Bischoff v. Osceola County , 222 F.3d 874, 878 (11th Cir. 2000). The Supreme Court in Lujan v. Defenders of Wildlife , 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) created a three-part test to determine whether a party has standing to sue: (1) the plaintiff must have suffered an "injury in fact," meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent; (2) there must be a causal connection between the injury and the conduct brought before the court; and (3) it must be likely, rather than speculative, that a favorable decision by the court will redress the issue. 504 U.S. at 560–61, 112 S.Ct. 2130.
1. McGriff and Yearwood Have Standing
Defendants contend that McGriff and Yearwood do not have standing because they do not satisfy the "injury in fact" element. As articulated by the City, Plaintiffs lack a cognizable injury because: (1) they were paid in full for the services rendered pursuant to the Agreement; (2) Section 2.1 of the Agreement "gav[e] the City the right of approval and waiv[ed] any right of either [McGriff or Yearwood] to challenge that decision under the First Amendment"; (3) under Exhibit A to the Agreement, the City had the unconditional right to disapprove of any artwork, which functionally amounted to a waiver of McGriff and Yearwood's First Amendment challenges; (4) Section 9.3 of the Agreement made the City the sole and exclusive owner of the art and operated as a waiver of any claim that McGriff or Yearwood might bring to challenge the City's exercise of its ownership rights; and (5) McGriff's claim is non-justiciable because, under Exhibit A, only Yearwood and Guerrero were contracted to co-curate I See You, Too. D.E. 21 at 8–11. Defendants’ arguments fail.
First, monetary damages are not the only the only form of cognizable injury. Plaintiffs have alleged reputational, emotional, and psychological injury as a result of Defendants’ actions (Compl. ¶ 44), which are compensable injuries for a First Amendment violation. See Meese v. Keene , 481 U.S. 465, 472, 476, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987) ("While the governmental action need not have a direct effect on the exercise of First Amendment rights ... it must have caused or must threaten to cause a direct injury to the plaintiffs ... The injury must be distinct and palpable." (citations omitted)). As to Defendants’ second, third, and fourth, arguments, there is simply nothing in the Agreement that amounts to a knowing and voluntary waiver of McGriff's or Yearwood's First Amendment rights.
As to Defendants’ fifth argument that McGriff lacks standing because he was not a co-producer of I See You, Too specifically, McGriff has sufficiently alleged that he suffered an injury in fact given his numerous responsibilities for I See You, Too , and given his role as a co-producer of the entire ReFrame project. Compl. ¶ 29; D.E. 9-1 at 13 (Exhibit A of the Agreement stating that Quinn Projects, McGriff's company, was obligated to "provide production services for the cultural programming of ‘Trust as Currency’). McGriff, as a co-producer of ReFrame who had responsibility for I See You, Too , and Yearwood, as a co-producer of ReFrame and co-curator of I See You, Too specifically, have standing.
2. Guerrero Has Standing
Defendants argue that Guerrero does not have standing because Guerrero, "a subordinate subcontractor" under the Agreement, has "no justiciable interest independent of Yearwood in the [Agreement] with the City or the installation itself." D.E. 21 at 10. Guerrero has standing—under the Agreement, she co-curated I See You, Too , and alleges that she suffered reputational and psychological harm as a result of Defendants’ removal of the Herisse Memorial. Compl. ¶¶ 33–34, 44. Just because Guerrero played a lesser, "subordinate" role under the Agreement does not mean that she did not suffer an injury in fact.
3. Jackson Has Standing
Defendants argue that Jackson, the artist who created the Herisse portrait, does not have standing because he never requested that the City display his artwork, the City never denied such a request from him, and he and the City never entered into any contractual agreement that conferred any rights upon him. D.E. 21 at 11. The Court is not persuaded by these arguments. Yearwood contracted Jackson to create a work of art which, pursuant to the contract, McGriff, Yearwood, and Guerrero then exhibited. See Compl. ¶ 28. Jackson alleges reputational and psychological damage as a result of the City's decision to remove the portrait he painted. The Court agrees with Plaintiffs that whether or not Jackson was the one who requested that his work be exhibited has no legal significance.
In sum, Plaintiffs have alleged injury in fact: they allege that Defendants engaged in unconstitutional viewpoint discrimination by ordering the removal of the Herisse Memorial from an event/exhibit Plaintiffs curated and/or produced, which caused them reputational and psychological harm. See, e.g. , Police Dep't v. Mosley , 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) ("[A]bove all else, the First Amendment means that [the] government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.").
ii. Mootness
"An issue is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief." Friends of Everglades v. S. Fla. Water Mgmt. Dist. , 570 F.3d 1210, 1216 (11th Cir. 2009) (citation omitted). Defendants argue that because the ReFrame Miami Beach event is over, there is no longer a live controversy. D.E. 21 at 11. However, this ignores the nature of Plaintiffs’ action and request for injunctive relief, which seeks a judgment declaring that Defendants violated Plaintiffs’ First Amendment rights by demanding that Plaintiffs take down the Herisse Memorial, and a permanent injunction requiring that Defendants display the Herisse Memorial in a public place comparable to the space in which it would have been displayed during Memorial Day weekend in 2019, and for a comparable period of time. Compl. at 11. Further, Plaintiffs seek damages to compensate them for the alleged harm. The Court has the power to grant meaningful relief of the sort requested by Plaintiffs if it is warranted. Consequently, this case is not moot.
Defendants claim that under the Agreement, any damages award would be limited to the amount payable under the Agreement. D.E. 9-1 at 6; D.E. 13-2 at 6 (Limitation of City's Liability). However, that provision governs only "any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement." Id. This is not a breach of contract case.
iii. Ripeness
Ripeness is a two-fold inquiry that requires a court to assess (1) whether the issues are appropriate or fit for judicial determination and (2) the hardship to the parties caused by withholding a judicial ruling. Abbott Labs. v. Gardner , 387 U.S. 136, 148–49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). "In other words, courts must resolve ... whether the claim is sufficiently mature, and the issues sufficiently defined and concrete, to permit effective decisionmaking by the court." Pittman v. Cole , 267 F.3d 1269, 1278 (11th Cir. 2001) (citation omitted). For the reasons stated above with respect to standing, the issues are sufficiently concrete and appropriate or fit for judicial determination.
Because ripeness involves a temporal aspect of justiciability, the hardship prong of the ripeness inquiry asks whether "the plaintiff will suffer hardship if he cannot raise his challenge until later." Reno v. Catholic Soc. Servs. , 509 U.S. 43, 71, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) ; see also Gardner v. Mutz , 962 F.3d 1329, 1337 (11th Cir. 2020) ("[R]ipeness and mootness are fundamentally temporal—ripeness asks whether it's too soon, mootness whether it's too late."). However, rather than address whether Plaintiffs’ claim is premature, Defendants make the irrelevant argument that Plaintiffs have not alleged a hardship because they "voluntarily covered" the Herisse Memorial and posted a sign saying that the piece had been "removed at the request of the Miami Beach Police," creating a "new display." D.E. 21 at 12. As such, Defendants argue, "past government request and subsequent acquiescence to an alternative display does not give rise to any controversy." Id. Defendants confuse hardship with the injury-in-fact component of standing and, therefore, their argument fails.
There is no evidence in the record that Plaintiffs "voluntarily covered" the Herisse Memorial. In their Complaint, which the Court accepts as true, Plaintiffs state that they "took down the painting." Id. ¶ 38.
Defendants also argue that the claims of Jackson and Guerrero are unripe because they did not make a separate independent request to the City to display Herisse Memorial, and that McGriff's claim is unripe because the Agreement does not specifically state that he was to co-curate I See You, Too. Although it is unclear, Defendants appear to argue that Plaintiffs needed to make some sort of formal request to the City in order to exercise their First Amendment rights, or that Plaintiffs needed to have exhausted some unidentified administrative remedy before seeking redress in this Court. But the Court will not guess. Again, Defendants fail to sufficiently explain their argument in terms of ripeness, that is, "whether [this case has been brought] too soon." Gardner , 962 F.3d at 1337. Accordingly, Defendants’ ripeness challenge fails.
C. The Government Speech Doctrine
The Free Speech Clause does not regulate government speech. See, e.g. , Pleasant Grove City v. Summum , 555 U.S. 460, 467, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) ; see also Johanns v. Livestock Marketing Ass'n , 544 U.S. 550, 553, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005) ("Government's own speech ... is exempt from First Amendment scrutiny."). When the government exercises ‘the right to speak for itself,’ it can freely ‘select the views that it wants to express.’ " Mech v. Sch. Bd. of Palm Beach Cnty. , 806 F.3d 1070, 1074 (11th Cir. 2015) (quoting Summum , 555 U.S. at 467, 129 S.Ct. 1125 ); see also Walker v. Texas Div., Sons of Confederate Veterans, Inc. , 576 U.S. 200, 213–14, 135 S.Ct. 2239, 192 L.Ed.2d 274 (2015). "This freedom includes choosing not to speak and speaking through the removal of speech that the government disapproves." Mech , 806 F.3d at 1074 (citations, alterations, and quotation marks omitted). Further, "[w]hen ... the government sets the overall message to be communicated and approves every word that is disseminated, it is not precluded from relying on the government-speech doctrine merely because it solicits assistance from nongovernmental sources in developing specific messages." Johanns , 544 U.S. at 562, 125 S.Ct. 2055 (ruling that the message set out in beef promotions pursuant to the Beef Promotion and Research Act of 1985, 7 U.S.C. § 2901 et seq. , was government speech even though the government solicited assistance from a nongovernmental source (various cattle farmer associations) in developing specific messages, and rejecting the associations’ contention that the federal beef program did not qualify as government speech because it was funded by a targeted assessment of beef producers rather than by general revenues).
The Supreme Court's decisions in Pleasant Grove City v. Summum , 555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) and Walker v. Texas Div., Sons of Confederate Veterans, Inc. , 576 U.S. 200, 135 S.Ct. 2239, 192 L.Ed.2d 274 (2015) have looked to three factors in identifying government speech: (1) history, (2) endorsement, and (3) control. See Cambridge Christian Sch., Inc. v. Fla. High Sch. Ath. Ass'n , 942 F.3d 1215, 1223 (11th Cir. 2019) ; Pulphus v. Ayers , 249 F. Supp. 3d 238, 247 (D.D.C. 2017) ("Walker and Summum discuss three factors relevant to identifying government speech: (1) whether the medium at issue has historically been used to communicate messages from the government; (2) whether the public reasonably interprets the government to be the speaker; and (3) whether the government maintains editorial control over the speech.").
Here, Defendants contend that, applying the three Summum /Walker factors, the Herisse Memorial, as part of ReFrame Miami Beach, a government-developed and government-funded program, were government speech. D.E. 21 at 13–18. Plaintiffs respond that none of the Summum /Walker factors support the conclusion that the removal of the Herisse Memorial was government speech. D.E. 24 at 13–16.
For the reasons set forth below, the record is not sufficiently developed for the Court to rule as a matter of law that the Herisse Memorial constituted government speech. Importantly, neither party acknowledges that "[t]he question of whether ... speech ... [is] government speech is a heavily fact-intensive one that looks at the" Summum /Walker factors. Cambridge Christian Sch., Inc. , 942 F.3d at 1223 (emphasis added). In Cambridge Christian School, Inc. v. Florida High School Athletic Association , 942 F.3d 1215 (11th Cir. 2019), the Eleventh Circuit held that the district court erred in dismissing, on government speech grounds, a private school's Free Speech claims against a state athletic association arising out of the association's denial of the school's request to conduct a joint prayer over a loudspeaker before a football game. Id. The Eleventh Circuit analyzed each Summum /Walker factor, noting that "the history factor weighed against finding that speech over the loudspeaker was government speech," the endorsement factor required a better-developed factual record, and the control factor "does not point clearly in either direction." Id. at 1232–35. Therefore, the court concluded, "[b]ecause one of the three factors points toward finding that at least some private speech was disseminated over the [loudspeaker] and the control factor is mixed, we reverse the district court's threshold conclusion that the [loudspeaker] was used to convey only government speech, along with its dismissal of the Free Speech claims and remand for further exploration of the relevant facts." Id. at 1232–33. In this case, although the "control factor" weighs in favor of a finding that the Herisse Memorial was government speech, there are not enough facts in the record at this time for the Court to conclude as a matter of law that the Herisse Memorial was government speech and, therefore, the City could require its removal.
i. Control
The control factor asks whether the government "maintains direct control over the messages conveyed" through the speech in question. Walker , 576 U.S. at 213, 135 S.Ct. 2239 (holding that the government had control over the message (license plate designs) pursuant to state statute that gave them "final approval authority" over their selection).
Whether the government has the power to approve certain speech is the defining inquiry in evaluating the control factor. In Summum , the Supreme Court held that the city's rejection of a religious organization's request to erect a monument at a city park did not violate the Free Speech Clause because the city's decision was best viewed as a form of government speech. Summum , 555 U.S. at 467, 129 S.Ct. 1125. In reaching this conclusion, the Court considered that the city had "rules governing the acceptance of artwork for permanent placement in city parks," requiring approval of the finished product before any piece of art would be accepted. Id. at 472, 129 S.Ct. 1125.
The Supreme Court in Walker ruled that the Texas Department of Motor Vehicles Board's rejection of a proposed specialty license plate design featuring a Confederate battle flag did not violate the Free Speech Clause because specialty license plates conveyed government speech. 576 U.S. at 213–14, 135 S.Ct. 2239. Similar to Summum , the state of Texas in Walker expressly reserved "final approval authority" over all license plate designs and would reject designs inconsistent with how the state chose "to present itself and its constituency." Id. at 213, 135 S.Ct. 2239.
In Johanns v. Livestock Marketing Association , 544 U.S. 550, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005), the Court ruled that the federal beef promotions amounted to government speech because the government set the overall message to be communicated and approved the words disseminated. Johanns , 544 U.S. at 562, 125 S.Ct. 2055. Consistent with the Court's finding that the government exercised final statutory approval authority over the promotional campaign, "[a]ll proposed promotional messages are reviewed by Department officials both for substance and for wording," indicating the government was in full control and was truly the speaker. Id. at 561, 125 S.Ct. 2055.
In Mech v. School Board of Palm Beach County , 806 F.3d 1070 (11th Cir. 2015), the Eleventh Circuit followed the framework set forth in Summum and Walker and deemed the removal of banners on public school property as government speech because "final approval authority" pursuant to a school board policy allowed the school "to choose how to present itself to the community. Such authority ensured that the messages on the banners are ‘effectively controlled’ by the schools." Mech , 806 F. 3d at 1078 (quoting Summum , 555 U.S. at 473, 129 S.Ct. 1125 ). Florida schools had approval authority over the banners’ design, typeface, color, contents, size, and location, including mandating that the school's initials and the phrase "Partner in Excellence" appear on each banner. Id.
In the instant case, the Agreement gave the City control of the message intended to be conveyed in the I See You, Too installation. Under the Agreement, "[a]ll installations shall be subject to review and approval by the City Manager's designee." D.E. 9-1 at 13 (emphasis added). Under section 2.1, all services were to be performed to the reasonable satisfaction of the City Manager. Further, under Section 9.3 of the Agreement, the City maintained ownership and control of the Herisse Memorial and any other work produced in whole or in part for the I See You, Too installation. Id. at 7.
Plaintiffs argue that Exhibit A to the Agreement, giving the City Manager approval of all installations, did not actually give Defendants the power to review and approve the installations. D.E. 24 at 15. Plaintiffs ask the Court to rely not on the plain language of the Agreement, but on McGriff's affidavit attached to Plaintiffs’ opposition to the City's Motion to Dismiss (D.E. 24-1), in which McGriff states that although he did not read Exhibit A to the Agreement giving City Manager Morales the power to review and approve all installations, he "would have simply assumed that [City employees] would be reviewing with us the progress of the installations" and things like "timing, cost, staffing, and publicity." D.E. 24-1 ¶¶ 8–9. Plaintiffs supply no legal reason which would justify the Court looking beyond the plain meaning of the words "review and approval" in Exhibit A to the Agreement. Plaintiffs further argue that the City did not have control over the I See You, Too installation because there was never any process of formal approval for the art, unlike in Walker, Johanns , and Summum , which involved formal government approval processes. D.E. 24 at 18. The Court does not find this argument to be persuasive: the contract gave the City the power to approve and review the art, and Plaintiffs cite no authority indicating that the government must follow a formal process when deciding whether to exercise control over its own speech. ii. Endorsement
Defendants contend that the City Code also gave them control over the Herisse Memorial. D.E. 21 at 18. The City Code requires a proposed memorial to undergo a rigorous vetting process and achieve majority support of two committees and a supermajority vote of the City Commission before the memorial may be displayed on "public property in the city." Code of the City of Miami Beach § 82-502 (Definitions); id. § 82-504 (Monuments or memorials). Chapter 82 governing "Public Property," Article VI, titled "Naming of Public Facilities and Establishment of Monuments or Memorials," defines a "memorial" as "a site, art work or structure created to preserve the memory of a significant event(s) or person(s)." Id. § 82-502. The parties do not dispute that the Herisse Memorial is a "memorial" under City Code. Compl. ¶ 35(b); see generally D.E. 21 (referring to the artwork as the "Herisse Memorial" throughout the Motion); D.E. 24 at 15–16. Plaintiffs attempt to dispute the fact that the Herisse Memorial was located on public property because 737 Lincoln Road is privately owned property. Defendants contend that 737 Lincoln Road was "temporary public property" because under the Temporary License Agreement, it was "exclusively licensed to the City." D.E. 21 at 16. City Code Chapter 82, Article VI does not define "public property." § 82-502. However, Chapter 82, Article III titled "Use of Public Property," states that "[p]roperty or city property means any land, water ... or air rights owned or maintained by the city, or in which the city holds an interest." § 82-91. Because the City clearly held an interest as a licensee of 737 Lincoln Road under the Temporary License Agreement, 737 Lincoln Road was, temporarily, public property within the meaning of the City Code.
However, there is nothing in the record to suggest that the City was relying on these provisions of the City Code with respect to I See You, Too , a temporary art exhibit. While the Herisse Memorial ultimately was included in I See You, Too , the City did not contract Plaintiffs to create a memorial; rather, under the Agreement, I See You, Too was to be part of cultural programming "about how propaganda and misinformation have compromised us." D.E. 9-1 at 13.
"The second of the factors -- endorsement -- asks whether the kind of speech at issue is often closely identified in the public mind with the government, or put somewhat differently, whether observers reasonably believe the government has endorsed the message." Cambridge Christian Sch., Inc. v. Fla. High Sch. Ath. Ass'n , 942 F.3d 1215, 1232–33 (11th Cir. 2019) (quotations omitted). In Mech , the Eleventh Circuit concluded that the banners hung on school fences would be closely identified in the public mind with the school board. 806 F.3d at 1076.
Here, there is not enough evidence in the record for the Court to conclude whether the public would have reasonably believed that the City endorsed the Herisse Memorial. The City points to two pieces of evidence: (1) a promotional flyer for a ReFrame Miami Beach event—not I See You, Too specifically—which invites guests to "join us for a sunset cocktail as the City of Miami Beach and ReFrame launch their inaugural festival" and indicating that RSVPs should be sent to "ARTSANDCULTURE@MIAMIBEACH.GOV"; and (2) a flyer for ReFrame Miami Beach and I See You, Too , which contains the City's logo (which simply states "Miami Beach") in very small print as one of four sponsors listed on the bottom of the flyer. D.E. 8-1; D.E. 18-2. These two documents simply are not enough for the Court to conclude that the public would have reasonably believed that the City endorsed the message intended by the Herisse Memorial.
Plaintiffs argue that it would be implausible for a member of the public to believe that the City had endorsed a message saying that its own police had used excessive force and "murdered someone." D.E. 24 at 14. But courts have acknowledged in arts cases that the message of any particular piece of art "[is] no more the government's speech than are the thoughts contained in the books of a city's library." People for the Ethical Treatment of Animals, Inc. v. Gittens , 414 F.3d 23, 28 (D.C. Cir. 2005). Rather, it is the exercise of editorial discretion in the selection and presentation of the artwork that constitutes the government's expressive conduct; the government "does not necessarily endorse the specific meaning that any particular donor sees in the [donated work of art]." Summum , 555 U.S. at 474–77, 129 S.Ct. 1125 ; see also United States v. Am. Library Ass'n , 539 U.S. 194, 204–05, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003) ; Gittens , 414 F.3d at 28.
The Court also cannot accept the Defendants’ argument that the Temporary License Agreement somehow would have led the public to believe that the City endorsed the Herisse Memorial. D.E. 21 at 16. Based on the limited record, the public would have no reason to think that a store front on Lincoln Road was City property. And in any event, "views do not become the state's views merely by being uttered at a state event on a state platform." Cambridge Christian Sch., Inc. , 942 F.3d at 1234 (quoting Adler v. Duval Cty. Sch. Bd. , 206 F.3d 1070, 1080 (11th Cir. 2000) (en banc), vacated , 531 U.S. 801, 121 S.Ct. 31, 148 L.Ed.2d 3 (2000), reinstated , 250 F.3d 1330 (11th Cir. 2001) (en banc)).
iii. History
The history factor asks whether the type of speech under scrutiny has traditionally "communicated messages" on behalf of the government. Walker , 576 U.S. at 211, 135 S.Ct. 2239. In Summum , the Court observed that "[g]overnments have long used monuments to speak to the public." Summum , 555 U.S. at 470, 129 S.Ct. 1125.
Here, the City contends it has a long history of displaying portraits and other honorary objects on City property to memorialize those individuals that it wishes to honor in that fashion. D.E. 21 at 14–15. For example, in 2019, the City planted a tree and displayed a plaque on City property memorializing the recent passing of Miami Beach activist Marion Del Vecchio. Id. ; Miami Beach, Discussion Regarding Commemorative Plaque in Remembrance of Mario Del Vecchio , July 23, 2019, https://miamibeach.novusagenda.com/AgendaPublic/CoverSheet.aspx?ItemID=13907&MeetingID=693. Further, "the City erected a memorial to slain law enforcement officers that anyone can visit outside the Miami Beach Police Department and allowed a world-renowned Holocaust memorial to be built on City property in 1984 that today draws millions of visitors every year." D.E. 21 at 15. The Court notes that there is no factual support in the record regarding these installations.
More importantly, the Court does not see how the City's decisions to honor Holocaust victims, slain police officers, or a local activist demonstrate that the City has historically used art to communicate government-sponsored "messages." The parties appear to agree that governments, including the City, historically have commissioned art. But the Court agrees with Plaintiffs that "it certainly cannot be said of art, generally, that its history is one of conveying a government message." D.E. 24 at 14. Because the parties have not had an opportunity to develop the factual record regarding the City's history of procuring and displaying art for the purpose of communicating messages to the public the Court cannot conclude at this time whether the history factor favors the City.
The Court notes that "a medium that has long communicated government messages is more likely to be government speech ... but a long historical pedigree is not a prerequisite for government speech." Mech , 806 F.3d at 1075 (citing Summum , 555 U.S. at 470, 129 S.Ct. 1125 ; Johanns , 544 U.S. at 560–67, 125 S.Ct. 2055 ). For example, in Johanns , the Supreme Court concluded that a promotional campaign for the beef industry was government speech without conducting any historical inquiry or citing any historical evidence. See Johanns , 544 U.S. at 560–67, 125 S.Ct. 2055. And in Mech , which involved a school banner program, the Eleventh Circuit concluded that "[d]espite the lack of historical evidence in the record, the banners exhibit strong indicia of government endorsement and control." Mech , 806 F.3d at 1079. As such, the history factor may not be conclusive of the outcome in this case.
In sum, there are "too many open factual questions for [the Court] to say with confidence that the allegations cannot be proven as a matter of law." Cambridge Christian Sch., Inc. , 942 F.3d at 1223. Accordingly, taking all allegations and evidence in the light most favorable to the Plaintiffs, the Motions to Dismiss are denied with respect to whether the Herisse Memorial was government speech and that, therefore, Defendants could require its removal.
D. Whether Plaintiffs’ Allegations Implicate any First Amendment Right Given their Roles as Contractors and Subcontractors for the City
Defendants argue that Plaintiffs’ display of the Herisse Memorial was not protected by the First Amendment due to their roles as independent contractors and subcontractors for the City. D.E. 21 at 18–20. Plaintiffs, whether intentionally or not, do not respond to this argument. D.E. 24.
When the government acts as an employer, it "has interests as an employer in regulating the speech of its employee that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Pickering v. Bd. of Educ. , 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). "Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.... Government offices could not function if every employment decision became a constitutional matter. Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions." Garcetti v. Ceballos , 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (citing Connick v. Myers , 461 U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ) (alterations omitted). As such, "the government is afforded broad discretion in its employment decisions." Boyce v. Andrew , 510 F.3d 1333, 1341 (11th Cir. 2007) (per curiam).
The Supreme Court's decision in Pickering v. Board of Education , 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) provides the framework for analyzing whether the employee's interest or the government's interest should prevail in cases where the government seeks to curtail the speech of its employee. The Pickering test involves "balanc[ing] ... the interests of the [employee], as a citizen in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. at 568, 88 S.Ct. 1731. In Pickering , the Supreme Court held that a public-school teacher was entitled to First Amendment protection for writing a letter to a newspaper that was critical of how the school board handled a proposal to raise revenue for the schools. Id. at 574–75, 88 S.Ct. 1731.
The government's discretion in regulating the speech of its employees can also apply to its relationships with independent contractors. Bd. of Cnty. Comm'rs v. Umbehr , 518 U.S. 668, 673, 684–85, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). In Board of County Commissioners v. Umbehr , 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996), the Supreme Court held that the plaintiff, an independent contractor who "was the exclusive hauler of trash for cities in the County" for six continuous years and publicly criticized the county's policies, resulting in his termination, was entitled to the same First Amendment protections as a government employee. Id. at 671, 684–85, 116 S.Ct. 2342. The Court extended the Pickering balancing test to independent contractors, stating that "[the parties] have [not] persuaded us that there is a difference of constitutional magnitude between independent contractors and employees in this context . Independent government contractors are similar in most relevant respects to government employees, although both the speaker's and the government's interests are typically -- though not always -- somewhat less strong in the independent contractor case ." Id. (emphasis added).
In Garcetti v. Ceballos , 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court described the two-step inquiry for evaluating whether a public employee's speech is entitled to protection:
Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently
from any other member of the general public.
547 U. S. at 418, 126 S.Ct. 1951. As to the first step of the inquiry, "[w]hen public employees make statements pursuant to their official duties , the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. (emphasis added). The Court defined speech made pursuant to an employee's job duties as "speech that owes its existence to a public employee's professional responsibilities." Id. at 421, 126 S.Ct. 1951. Applying that rule, the Court found that an internal memorandum prepared by a prosecutor in the course of his ordinary job responsibilities constituted unprotected employee speech. Id. at 424, 126 S.Ct. 1951 ; see also Abdur-Rahman v. Walker , 567 F.3d 1278, 1282–83 (11th Cir. 2009).
Here, Plaintiffs McGriff and Yearwood were independent contractors of the City pursuant to the Agreement. D.E. 9-1 at 1 & 13-2 at 1 ("For the purposes of this Agreement, Consultant shall be deemed to be an independent contractor, and not an agent or employee of the City"). But the Court is reluctant to hold that this fact alone means that Plaintiffs’ display of the Herisse Memorial pursuant to the Agreement should be afforded less First Amendment protection. The Court in Umbehr was careful to avoid a bright-line rule, holding that "there is [no] difference of constitutional magnitude between independent contractors and employees in this context ." 518 U.S. at 678, 684, 116 S.Ct. 2342 (emphasis added) ("We therefore see no reason to believe that proper application of the Pickering balancing test cannot accommodate the differences between employees and independent contractors. There is ample reason to believe that such a nuanced approach, which recognizes the variety of interests that may arise in independent contractor cases, is superior to a bright-line rule distinguishing independent contractors from employees.").
Each case Defendants cite in support of their argument involves either a government employee, like the prosecutor in Garcetti and the public-school teacher in Pickering , or a longtime contractor carrying out a public service, like the trash-hauling contractor of six years in Umbehr . Defendants cite no law supporting the conclusion that a contractor hired for a single four-day art and culture event should be treated as a government employee with limited First Amendment protection. The policy rationale behind lessened constitutional protections for government employees—i.e. , that government employees occupy positions of trust and that the government needs control over its employees’ actions so that public services may be carried out efficiently—do not appear to apply persuasively to a case involving a contractor hired for a four-day art and culture event. See Garcetti , 547 U.S. at 418, 126 S.Ct. 1951. Moreover, both the speaker's and the government's interests in speech "are typically ... somewhat less strong in the independent contractor case." Umbehr , 518 U.S. at 685, 116 S.Ct. 2342. In addition, according to the First Amended Complaint and the other documents of record, Guerrero and Jackson were not independent contractors of the City. Guerrero and Jackson owed their employment to Yearwood, who brought them on to assist with I See You, Too. There is no evidence in the record to suggest that the City paid Guerrero and Jackson directly or otherwise supervised their work. Defendants cite no relevant law supporting their argument that Guerrero and Jackson, as subcontractors, were independent contractors of the City. Nor has the Court identified any law to support that assertion.
There is no evidence in the record as to Plaintiffs’ overall relationship with the City and whether they previously or regularly contracted with the City.
There is also something to be said about the fact that the City hired McGriff and Yearwood for the sole and express purpose of creating "cultural programming" for the City for the ReFrame event generally, and the I See You, Too installation, specifically. Under Exhibit A of the Agreement, I See You, Too was to be "about how propaganda and misinformation have compromised us." D.E. 9-1 at 13; D.E. 13-2 at 13. The Agreement does not prohibit McGriff or Yearwood from creating speech that is critical of the City.
In sum, the Court denies the Motions without prejudice as to whether Plaintiffs lacked First Amendment protection as independent contractors or subcontractors. If Defendants choose to raise this argument in the future, they must address whether Plaintiffs should be treated as public government employees with limited First Amendment protection given that McGriff and Yearwood contracted with the City for a four-day art and culture event.
This ruling gives Plaintiffs the opportunity to address this argument in any future filings, which they failed to do here, and allows for a better-developed record concerning Plaintiffs’ relationship with the City.
E. Traditional Forum Analysis
Defendants argue that because the Herisse Memorial was displayed in a nonpublic forum, Defendants were entitled to restrict Plaintiffs’ speech. D.E. 21 at 20–21. Defendants’ argument fails because their actions were not viewpoint neutral. Id.
"In places which by long tradition or by government fiat are devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed." Perry Educ. Ass'n v. Perry Loc. Educators' Ass'n , 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). At one end of the spectrum are public forums, which include "streets and parks which have immemorially been held in trust for the use of the public and ... have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Id. (citation omitted and quotation marks omitted).
Nonpublic forums, by contrast, include public properties that are not by "tradition or designation a forum for public communication." Id. at 46, 103 S.Ct. 948. In nonpublic forums, " ‘the ‘First Amendment does not guarantee access to property simply because it is owned or controlled by the government.’ " Id. (quoting United States Postal Serv. v. Council of Greenburgh Civic Ass'ns , 453 U.S. 114, 129, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981) ); see also Denver Area Educ. Telcoms. Consortium v. FCC , 518 U.S. 727, 829, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (Thomas, J., dissenting) ("We have expressly stated that neither government ownership nor government control will guarantee public access to property."). Rather, the government may impose time, place, and manner restrictions, as well as reserving "the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Perry Educ. Ass'n , 460 U.S. at 46, 103 S.Ct. 948.
737 Lincoln Road was a nonpublic forum because it was a government-controlled property intended for a government-sponsored art event, not for public discourse. Under the Temporary License Agreement, 737 Lincoln Road was licensed to the City "for the sole purpose of gallery exhibits." D.E. 13-5. Because the Herisse Memorial was in a nonpublic forum, Defendants’ decision to order its removal must have been reasonable and viewpoint neutral. Perry Educ. Ass'n , 460 U.S. at 46, 103 S.Ct. 948.
The regulation on speech here was not viewpoint neutral. See, e.g. , Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (governments must remain viewpoint neutral in any government-created forum). "Viewpoint discrimination is ‘an egregious form of content discrimination’ that occurs ‘when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the regulation.’ " Cambridge Christian Sch., Inc. , 942 F.3d at 1240–41 (quoting Rosenberger v. Rector & Visitors of the Univ. of Va. , 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) ). A "viewpoint-based law ... regulates speech based upon agreement or disagreement with the particular position the speaker wishes to express." Id. (citing 1 Smolla & Nimmer on Freedom of Speech § 3:9 (2019)). The appropriate inquiry is "whether the speech restriction was based on the specific motivating ideology or particular position of the speaker." Id.
Here, Defendants ordered Plaintiffs to take down the Herisse Memorial because Defendants believed the Herisse Memorial was "disunifying" rather than "unifying" as to the theme of "racial issues." D.E. 13-6 at 62, 64 (transcript of remarks made by Mayor Gelber in which he stated that City Manager Morales said, "I don't like [the Herisse Memorial], and I don't want it"). City police officers demanded that the Herisse Memorial, which was critical of the police's actions resulting in the death of a Black man, be taken down, and Defendants acquiesced. Because the decision to order the removal of the Herisse Memorial was not viewpoint neutral, Defendants’ Motions to the extent based on traditional forum analysis are denied.
While the record as it currently stands makes clear to the Court that Defendants’ actions were not viewpoint neutral, the Court notes that further facts may be uncovered during discovery. As such, Defendants may later seek to prevail under traditional forum analysis, although such an argument is unlikely to be granted unless significant additional facts come to light.
F. Official Capacity Allegations Against Mayor Gelber and City Manager Morales
Plaintiffs bring suit against Mayor Gelber and City Manager Morales in their official and individual capacities. Compl. ¶¶ 23, 24. Defendants move to dismiss the official capacity allegations. D.E. 22 at 3; D.E. 23 at 3. "When an officer is sued under Section 1983 in his or her official capacity, the suit is simply another way of pleading an action against an entity of which an officer is an agent ... Such suits against municipal officers are therefore, in actuality, suits directly against the city that the officer represents." Busby v. Orlando , 931 F. 2d 764, 776 (11th Cir. 1991) (footnote, citations, and internal marks omitted). In light of the redundancy, courts in the Eleventh Circuit routinely dismiss the official capacity claims against an individual defendant when the municipality they represent is also a defendant. See, e.g., Id. at 776, 782 ; Abusaid v. Hillsborough Cty. Bd. of Cty. Comm'rs , 405 F.3d 1298, 1302 n.3 (11th Cir. 2005). Plaintiffs agree with Defendants that dismissal of the official capacity allegations is warranted. D.E. 25 at 2 n.2. Accordingly, the official capacity allegations against Mayor Gelber and City Manager Morales are stricken.
G. Qualified Immunity
Mayor Gelber and City Manager Morales argue that they are entitled to qualified immunity. D.E. 22 at 6–14; D.E. 23 at 3–12. "Qualified immunity offers a complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Gray ex rel. Alexander v. Bostic , 458 F.3d 1295, 1303 (11th Cir. 2006) (citations and quotation marks omitted).
As a threshold matter, for qualified immunity to apply, a government official must demonstrate that the acts complained of were committed within the scope of the official's discretionary authority. See Vinyard v. Wilson , 311 F.3d 1340, 1346 (11th Cir. 2002). A government official proves he acted within the purview of his discretionary authority by showing "objective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope of his authority." See Hutton v. Strickland , 919 F.2d 1531, 1537 (11th Cir. 1990) (citation and quotation marks omitted). In other words, the official must show that he "was (a) performing a legitimate job-related function (that is, pursuing a job-related goal), (b) through means that were within his power to utilize." Holloman v. Harland , 370 F.3d 1252, 1265–66 (11th Cir. 2004) (citing Hill v. Dekalb Reg'l Youth Det. Ctr. , 40 F.3d 1176, 1185 n.17 (11th Cir. 1994) ). The Court must interpret the evidence in the light most favorable to the plaintiff. Id. at 1264.
Here, City Manager Morales acted within his discretionary authority when, at the request of City police, he ordered the removal of the Herisse Memorial from a City-developed and City-funded art event. The City has a Commission-City Manager form of government under which the City Manager is the chief executive officer of the City and is responsible only to the City Commission (which includes the Mayor and six Commissioners) as a whole with regard to his decisions. City Code §§ 1.01, 4.02. And Mayor Gelber acted within the scope of his authority as Mayor of the City of Miami Beach and within his discretionary authority when he did not seek to convene the Commission to require City Manager Morales to reverse his decision to order the removal of the Herisse Memorial or introduce legislation to that effect. City Code § 2.03.
There is no provision of the City Code giving the Mayor the power to unilaterally command the City Manager to do or refrain from doing something. As such, if Mayor Gelber wished to reverse City Manager Morales's decision in accordance with City Code, he would have had to convene the Commission to seek to require City Manager Morales to reverse his decision. See City Code § 2.03; D.E. 22 at 6.
Once discretionary authority is established, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity. See, e.g. , Cottone v. Jenne , 326 F.3d 1352, 1358 (11th Cir. 2003). To overcome qualified immunity, the plaintiff must satisfy a two-prong test: the plaintiff must show that (1) the defendant violated a constitutional right, and (2) this right was clearly established at the time of the alleged violation. See, e.g. , Holloman , 370 F.3d at 1264. "A court evaluating a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Wilson v. Layne , 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quotations and citations omitted). If the plaintiff prevails on both prongs of this test, then the defendant is unable to obtain summary judgment on qualified immunity grounds. See Holloman , 370 F.3d at 1264.
In this case, Plaintiffs cannot show that Mayor Gelber or City Manager Morales violated a clearly established constitutional right. Even if the facts here ultimately establish a First Amendment violation, to avoid dismissal, Plaintiffs must demonstrate that those rights were so "clearly established" that "it must be so clear that every objectively reasonable official understands it to prohibit the challenged act." Fontanez v. Lamberti , No. 10-61428-CIV, 2011 WL 4499016, at *5, 2011 U.S. Dist. LEXIS 109851 at *17 (S.D. Fla. Sep. 27, 2011) (quoting Vinyard v. Wilson , 311 F.3d 1340, 1346 (11th Cir. 2002) ). Essentially, "[u]nless the [official's] act is so obviously wrong in the light of preexisting law, that only a plainly incompetent official or one who was knowingly violating the law would have committed the act, the official is entitled to qualified immunity." Snider v. Jefferson State Cmty. Coll. , 344 F. 3d 1325, 1328 (11th Cir. 2003) (citing Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ). A constitutional right may be clearly established for purposes of qualified immunity when there is "(1) case law from the U.S. Supreme Court, the Eleventh Circuit Court of Appeals, and/or the Florida Supreme Court with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law." Lewis v. City of West Palm Beach , 561 F.3d 1288, 1291 (11th Cir. 2009).
The Supreme Court has explained that "the right allegedly violated must be established, not as a broad general proposition, but in a particularized sense so that the contours of the right are clear to a reasonable official." Reichle v. Howards , 566 U.S. 658, 665, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (quotation marks and citations omitted) (quoting Brosseau v. Haugen , 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam); Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ). Here, the right in question is not the general First Amendment right to free speech, but the more specific right to be free from government censorship of an art installation commissioned by government. See id.
As discussed supra , there is no relevant case law with indistinguishable facts, there is no applicable "broad statement of principle," and the officials’ conduct, while it may turn out to be unconstitutional, certainly was not "so egregious that a constitutional right was clearly violated." City Manager Morales made the decision to order the removal of the Herisse Memorial based on his reasonable belief that he was permitted to do so. Compl. ¶ 42 (according to Mayor Gelber, City Manager Morales said, "I don't like [the Herisse Memorial], and I don't want it" and that he thought he had the power to order the painting's removal because the City was "paying for it"). Mayor Gelber stated that he supported City Manager Morales's decision and would not reverse it. Id. ¶ 43; City Code § 2.03. Plaintiffs cannot demonstrate that City Manager Morales's or Mayor Gelber's decisions were contrary to clearly established law; rather, their decisions were in line with their reasonable belief that the Herisse Memorial constituted government speech and/or that Plaintiffs did not enjoy First Amendment protections given that they were independent contractors and subcontractors employed by the City. Accordingly, they are entitled to qualified immunity as a matter of law. See, e.g. , Mitchell v. Forsyth , 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (issue of qualified immunity is question of law for courts to decide).
Because Mayor Gelber is entitled to qualified immunity, the Court need not consider Mayor Gelber's absolute legislative immunity argument. See, e.g. , Rich v. Dollar , 841 F.2d 1558, 1563 (11th Cir. 1988) ("[B]ecause it is clear that [the official] is shielded from the present § 1983 claim for damages by qualified immunity ... we need not address his absolute immunity claim."); see also Wood v. Kesler , 323 F.3d 872, 881 n.13 (11th Cir. 2003) ; Williams v. Ga. Dep't of Corr. , 2012 U.S. Dist. LEXIS 205442, at *16 n.13 (N.D. Ga. Dec. 18, 2012 ).
IV. Conclusion
For the reasons stated herein, is hereby ORDERED AND ADJUDGED as follows:
(1) This case is justiciable as to each Plaintiff;
(2) The record is not sufficiently developed for the Court to rule whether the Herisse Memorial and its removal constituted government speech;
(3) Defendants’ Motions are denied without prejudice with respect to their independent contractor and subcontractor argument;
(4) Defendants’ Motions are denied without prejudice with respect to their traditional forum analysis argument;
(5) Defendants Mayor Gelber and City Manager Morales are entitled to qualified immunity and are therefore TERMINATED as parties to this case;
(6) The City's Motion, D.E. 21, is GRANTED IN PART;
(7) Mayor Gelber's Motion, D.E. 22, is GRANTED IN PART;
(8) City Manager Morales's Motion, D.E. 23, is GRANTED IN PART;
(9) Motion for Hearing, D.E. 35, is DENIED AS MOOT;
(10) The City SHALL file its answer to the First Amended Complaint on or before Tuesday, December 15, 2020.
(11) The initial planning and scheduling conference is RE-SET to Friday, January 15, 2021, at 10:30 a.m.
DONE AND ORDERED in Chambers at Miami, Florida, this 30th day of November, 2020.