Opening the Door? How the Eleventh Circuit Court of Appeals’ Reversal and Remand in Warren v. DeSantis Impacted Public Officials’ Speech in Florida and Beyond

By: Trey Bender, Volume 22 Staff Member

Whether it is implicit or explicit, oftentimes it seems that politics dominate the public rhetoric in today’s day and age. Many people seem to speak with little regard for the repercussions their speech may incur, with those few who do plainly citing the First Amendment and the Free Speech Clause as providing them nearly blanket protection.

Moreover, the media is dominated by government employees and public officials making political statements that constantly draw opposition and criticism, which seems to be the generally accepted norm. But what about political statements from a government employee within the justice system, a form of government that many desire to be impartial and many are losing faith in?

Government Speech in Florida and the Eleventh Circuit

Given these trends, the doctrine of government-speech has become a hot-button issue as politicians seek to silence their political opponents. Such was the case when Florida Governor Ron DeSantis suspended the elected Hillsborough County State Attorney, Andrew Warren, on the grounds of “neglect of duty.” Warren subsequently brought suit on grounds of First Amendment retaliation. The suspension was based in part on Warren’s signing on to support statements that pledged not to prosecute individuals who receive or provide abortion services as well as gender-affirming treatment. Gov. DeSantis also claimed the suspension was based on Warren’s performance and policies.

While the U.S. District Court of Northern Florida upheld the suspension, a panel of judges for the U.S. Eleventh Circuit Court of Appeals unanimously found that the suspension did in fact violate Warren’s free speech rights and reversed the lower court’s decision and sent the case back to the district court to determine whether Gov. DeSantis would have suspended Warren despite his protected speech. The decision indicates the Eleventh Circuit’s commitment to upholding the free speech of government officials while also providing impactful legal developments on the doctrines of both government-speech and free speech in general.

Blurring the Lines: Impact on Speech of Elected Public Officials

In their decision, the court repeatedly questioned whether elected public officials should even be subject to the potential limits on their First Amendment rights that are placed on public officials who are appointed or hired. Despite these reservations, the court chose to focus on whether Warren’s signing of the statements was indeed government-speech as articulated inGarcetti v. Ceballos, and then whether the signing impeded Warren’s performance as state attorney under the guidance of Pickering v. Board of Education. The decision to apply these tests to an elected official’s speech works a new development into First Amendment jurisprudence and could lead to future litigants raising this argument in future First Amendment challenges. As a result, it is important to analyze how the court went about applying these tests to the facts in Warren.

The Government-Speech Doctrine: Applying Garcetti

In its application of Garcetti, the court quickly found that the matters of abortion services and gender-affirming care were indeed matters of public concern and turned its focus to whether Warren spoke as a private citizen. The court concluded the signed statements were not government-speech as he was acting as a private citizen and not in the course of his official duties based on three determinative factors.

First, the court assessed and concluded that Warren was not required to sign on to advocacy statements nor was he expected to do so in the normal course of his duties.

Second, the court concluded that Warren, despite signing the statements under his public title, did not carry any official authority and thus spoke as a private citizen. This was based on the fact that he did not sign the statement in the workplace, did not use workplace resources, nor did the statements refer to any Florida law that would go unenforced.

Finally, the court concluded that Warren’s status as an elected official, who often “speak as representatives of their constituents,” lends itself to the proposition that signing the statements was merely Warren expressing his views on policy.

While explicitly declining to dispositively state that Garcetti applies to elected officials, the court went so far as to state that, if elected officials were indeed subject to the expand government-speech exception, they refused to broaden the doctrine by applying the exception to Warren’s signed statements. By including this language, the court opens the door to litigation over this very issue.

Government Employee Speech: Applying Pickering

Again expressing doubts as to whether Pickering was even applicable to elected officials, the court found that signing the statements did not impede Warren’s performance as a state attorney. As a reminder, Pickering laid out a two-part test: whether the public employee spoke on a matter of public concern; and if so, the court then balances the employee’s right to free speech against the employer’s interests in an efficient, cohesive workplace.   

In particular, the statements did not prevent the Warren’s office from performing its duties efficiently nor did the statements’ time, manner, context, or place disrupt the office. While Gov. DeSantis claimed that the statements demonstrated Warren “shirked his obligations [and] barred line prosecutors from fulfilling their own,” the court found that Warren never distributed the statements to prosecutors in his office, nor incorporated them into training materials, and the office never received a case related to gender-affirming care or abortion services. Thus, the statements did not have any effect on the office’s function.

In working through the Pickering analysis, the court laid out potential factors that could be argued in future cases regarding First Amendment challenges involving elected public officials.

Looking Forward

As a result of their non-committal reasoning, the court in Warren opened the door to the possibility of folding elected public officials into the wider First Amendment jurisprudence as it applies to government employees and public officials. This could result in more instances of the government attempting to silence public officials by suspending or removing them for political statements that have historically been protected. Combined with growing national political tensions, these developments may result in the courts hearing more cases about suspensions of elected public officials backed by the propositions floated in Warren that the government-speech doctrine and government employee speech could potentially justify such suspensions.