Free Speech

Lawsuit Over School District Terminating Food Supply Contract for Anti-George-Floyd, COVID-Is-a-Hoax, Media-Are-Brainwashing-Us Speech

can go forward, as a First Amendment retaliation claim, holds a federal judge.

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From today's decision by Judge John L. Badalamenti (M.D. Fla.) in Oakes Farms Food & Distribution Servs., LLC v. School District of Lee County:

Francis A. "Alfie" Oakes is the owner of Oakes Farms Food & Distribution Services, LLC …. From 2016 to 2020, Oakes Farms supplied the School District of Lee County … with fresh produce. Shortly after Oakes Farms's contract with the School District was unanimously renewed for the 2020-21 school year, Mr. Oakes wrote a post on his personal Facebook page discussing the killing of George Floyd, bemoaning the "brainwashing" influence of  the media, and characterizing the COVID-19 pandemic as a "hoax." Three days after Mr. Oakes's post, the School District terminated its contract with Oakes Farms. Plaintiffs believe the termination was unlawful retaliation for Mr. Oakes exercising his First Amendment rights ….

On June 8, 2020, Mr. Oakes posted the following on his personal Facebook:

The COVID19 hoax did not work to bring down our great President and now this…the black lives matter race hoax…REALLY …what else do the disgraceful powers that control this world with their puppets in the media have planned for us in next 5 months? Is it possible that so many of our fellow American citizens could really be this ignorant?

When I was a young child I vividly remember during church services a sermon that described how there would come a time where many people would not recognize good from evil or truth from blatant lies…I remember thinking to myself how could this ever happens? It seems impossible from the paradigm that I existed in.

Well here we are…in the past 3 months I have watched not only OUR country's economy but the entire world economy brought to ruins for no other reason that multitudes of men and women have allowed themselves to be controlled by deceit and fear. The corrupt world powers and their brainwashing arms of the media have proven the ability to program the masses.

Now only weeks after the COVID programming many of the same lemmings have allowed the media to convince them that the amazing men and women that put their lives on the line every day to protect us are bad but some disgraceful drug addict felon is a hero being paraded around the country. Can this really be happening??

There is absolutely no dispute that George Floyd was a disgraceful career criminal, thief, drug addict, drug dealer and ex-con who served 5 yrs in prison for armed robbery on a pregnant woman, and spent his last days passing around fake 20's to store owners in Minnesota. Our new media hero "Gentle George" had two types of heart disease due to the tremendous amount of illegal drugs he was taking daily. In his autopsy he tested positive for marijuana, Fentanyl, Amphetamine, morphine, methamphetamine, and sever others .. When officer Chauvin responded to a 911 call that someone was passing counterfeit 20s the store owner pointed out Floyd, who was sitting in a car across the street. When officer Chauvin confronted Floyd, and asked him to get out of the car, Floyd refused and was not cooperating with the officer, a 20 year public servant, who was unlucky enough to be the one having to deal with this drug addicted criminal, a true disgrace to our human race that represents all that is wrong with our society. Floyd continued to resist the officers orders during this incident as one would expect from a mindless drug addict. Now the media, Hollywood and many of our disgraceful politicians want you to be outraged that this career criminal drug abusing thug suffered the consequences of a lifetime of bad choices. Unfortunately the liberal mindset that has been instilled in so many of our young generation has taught them to take no personal responsibility for their actions. They have been taught that if they do not success than [sic] they must be a victim. These lost souls without any direction or sense of purpose are so easily manipulated to blame others for their lack of self worth. It is these lost souls with little to no self worth who are the "protesters" that we see looting our stores, burning down our cities, defaming our national monuments and disgracing the great men and women that built this country.. but I suppose now they finally found a purpose.

As we will likely be facing tough times ahead, I can only pray that these lost souls find a true purpose beyond the blame and deceit that is testing if not ruining the strong fabric of once our great nation.

Almost immediately, someone created an online petition on Change.org, calling on the School District to "cut ties with Oakes Farms as founder and CEO Alfie Oakes has shared racist views about the murder of George Floyd on his Facebook page."

One day after Mr. Oakes's post, local news outlets reported that the School District was facing a "backlash" for the Facebook post, and that the School District was "aware of the petition that stemmed from [the] post." On June 11, three days after the post, Oakes Farms was contacted by Defendant Frederick B. Ross, the School District's Director of Procurement. Director Ross informed Oakes Farms that the School District decided to terminate its contract with Oakes Farms "for convenience" without further explanation….

Defendants moved to dismiss, arguing that they had qualified immunity from the First Amendment retaliation claim, but the court rejected that argument:

"The doctrine of qualified immunity provides that 'government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" …

To prove a First Amendment retaliation claim, a plaintiff must demonstrate that: (1) that they engaged in constitutionally protected speech; (2) the defendant's retaliatory conduct adversely affected that protected speech, and (3) a causal connection exists between the retaliatory conduct and the adverse effect.

The question of whether speech is constitutionally protected for purposes of retaliation is governed by the balancing test in Pickering v. Board of Education (1968), as modified by later Supreme Court decisions. {Defendants' motion to dismiss goes straight to Pickering, and the Court will likewise assume that Pickering applies to both Plaintiffs. But this assumption may not hold on summary judgment. For one thing, Mr. Oakes was not a contractor or employee of the School District. And it is questionable whether Oakes Farms engaged in any speech—let alone protected speech—just because its owner posted on his personal Facebook page. But see Heffernan v. City of Paterson (2016) (explaining that an employee may state a claim for First Amendment retaliation if his employer fired him based on its mistaken belief that he engaged in protected speech, even though he had not); Kinney v. Weaver (5th Cir. 2004) (en banc) ("[T]he determination whether the relationship between the government and an individual falls on the 'governmental  employee' end of the Umbehr spectrum turns on whether the relationship is sufficiently 'analogous to an employment relationship.'"). The parties should be prepared to address these issues on summary judgment.}

Under Pickering, courts must first "consider whether a plaintiff's speech was made as a citizen and whether it implicated 'a matter of public concern.'" "If this first threshold requirement is satisfied, [courts] then weigh [p]laintiff's First Amendment interests against the [defendant's] interest in regulating his speech to promote 'the efficiency of the public services it performs through its employees.'"

The Court is not prepared to conclude that Plaintiffs' claims are barred by qualified immunity at this stage…. Accepting the facts in the Second Amended Complaint as true and drawing every inference in favor of Plaintiffs, both prongs of qualified immunity appear to be satisfied such that no reasonable person could believe that they had not been met. Oakes Farms's contract was terminated because of a Facebook post made by Mr. Oakes on matters of public concern (policing practices and COVID-19) in his capacity as a private citizen (on his personal Facebook page, which nobody alleges had any reference to his role in Oakes Farms).

Defendants' side of the Pickering scale is "empty" for the moment because the Second Amended Complaint contains no allegations that the Facebook post impacted the School District's "need to maintain loyalty, discipline[,] and good working relationships," at least not if read in the light most favorable to Plaintiffs. And of course, it has long been established law that a state entity "may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech."

{The Second Amended Complaint does take note of the petition on Change.org, which local news outlets reported as causing a "backlash." But the Second Amended Complaint also alleges that the overwhelming majority of people who signed the petition did not reside in Southwest Florida. This is not enough for the Court to conduct a thorough Pickering analysis on the face of the Second Amended Complaint, let alone one that would result in qualified immunity for the Defendants.}

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. Oakes is a reactionary moron, but it’s pretty close to obvious by inspection that the school district punished him for his speech. If they pursue it to the end they should lose in a rout.

    1. Sounds to me like Oakes really hit the nail on the head, actually. I think he’s elided a period where Floyd was unresponsive, but other than that, what did he get wrong, factually?

      1. He missed the bit which came after. You know. The bit which all the fuss was about. The murder.

        1. Just to be clear, if Chauvin hadn’t faced murder charges, desecration of a corpse was a slam dunk.

      2. “Sounds to me like Oakes really hit the nail on the head…”

        Sounds to me that Brett has finally, conclusively jumped the shark.

        Oakes is simply delusional, and probably a danger to himself and those around him.

        He probably has a 1A claim, and the district will probably have to settle for whatever monetary damages he can substantiate. Probably worth it to make a crazy person go away.

        1. “There is absolutely no dispute that George Floyd was a disgraceful career criminal, thief, drug addict, drug dealer and ex-con who served 5 yrs in prison for armed robbery on a pregnant woman, and spent his last days passing around fake 20’s to store owners in Minnesota. Our new media hero “Gentle George” had two types of heart disease due to the tremendous amount of illegal drugs he was taking daily. In his autopsy he tested positive for marijuana, Fentanyl, Amphetamine, morphine, methamphetamine, and sever others .. When officer Chauvin responded to a 911 call that someone was passing counterfeit 20s the store owner pointed out Floyd, who was sitting in a car across the street. When officer Chauvin confronted Floyd, and asked him to get out of the car, Floyd refused and was not cooperating with the officer, a 20 year public servant, who was unlucky enough to be the one having to deal with this drug addicted criminal, a true disgrace to our human race that represents all that is wrong with our society. Floyd continued to resist the officers orders during this incident as one would expect from a mindless drug addict.”

          Which of these points do you care to dispute?

          I will grant the restraint went on too long after he stopped struggling, (The elision.) but there’s every chance he was a goner long before, and the only reason he had the encounter in the first place is that he was a drug addled criminal.

          1. I am not going to address Oake’s character assissination of Flyod – even if one stipulates that his over the top rant is factually correct, it does not excuse the murder.

            However, just take a look at the rest of the crazed ranting. If you think this “…hits the nail on the head…” we have nothing more to discuss.

            “The COVID19 hoax did not work to bring down our great President and now this…the black lives matter race hoax…REALLY …what else do the disgraceful powers that control this world with their puppets in the media have planned for us in next 5 months?”

            “in the past 3 months I have watched not only OUR country’s economy but the entire world economy brought to ruins for no other reason that multitudes of men and women have allowed themselves to be controlled by deceit and fear. The corrupt world powers and their brainwashing arms of the media have proven the ability to program the masses.”

            “…the liberal mindset that has been instilled in so many of our young generation has taught them to take no personal responsibility for their actions. They have been taught that if they do not success than [sic] they must be a victim. These lost souls without any direction or sense of purpose are so easily manipulated to blame others for their lack of self worth. ”

            You really think this passes for rational discussion? Really?

            1. 1 – Why is the standard rational discussion? What’s wrong with ranting?
              2 – The first paragraph is out there. The second is pretty much dead on for the most part – the economy was devastated and we now know it was a massive overreaction, that the lockdowns did very little in the long run. The last sentence is similar to the first paragraph. The third paragraph takes the concept a little far, but not much. You can’t reasonably deny that victimhood and blaming others or “society” for all of certain people’s problems is massively in vogue right now.

            2. First, it’s not character assassination when the attacks are accurate. Floyd really was a career criminal and a walking pharmacy, who only came to the police’s attention because he was passing counterfeit bills.

              Secondly, I think the murder charge likely to be overturned on appeal, though manslaughter seems appropriate. It really does appear that Floyd mostly died of his terrible health and drug use, and it’s quite possible he would not have lived out the day even if he’d never met the police that day.

              Which is no excuse for the treatment he received, but let’s not pretend an innocent man died that day, or that he had nothing to do with what happened.

            3. I agree with every word in that quote.

              I am open to rational discussion of the above quote

    2. “What did he get wrong, factually?”

      I ain’t gonna argue about Floyd, but the part about Covid being a hoax is Cuckoo for Cocoa Puffs stuff.

      And the media is objectively terrible, as he’s noticed. But they’re clearly not brainwashing us because if they were neither he nor us would have noticed that they are terrible.

      So, yeah, he’s kooky.

      1. So, they’re not 100% effective at the brainwashing. And, yeah Covid exists, though that doesn’t mean there’s no element of hoax in how it’s being treated. Do masks work, or don’t they? Do vaccines work, or don’t they? Does having had a disease result in your having some immunity, or doesn’t it?

        The medical community hardly covered themselves in glory this time around, or did their credibility any favors, but I guess we’re not supposed to notice?

        1. Oh bullshit. The medical community on the treatment side actually did cover themselves in glory. The public health folks not so much. But differences in opinion on masks doesn’t get anywhere close to hoax. And the vaccines clearly work. Anybody that disputes that is too stupid to talk to. The disease is absolutely real. The shitty politically influenced performance by our political leadership and media doesn’t render a real disease to be a hoax.

          And the media isn’t brainwashing anybody. If anybody has brainwashed Oakes it’s Trump.

          Oakes is an idiot who is totally full of shit. But he’s got the right to be that way without being punished by the government.

  2. Bigoted, delusional, right-wing cranks leeching at the public teat have rights, too. Even if they live in Can’t-Keep-Up, Florida.

    But not the right to be respected by their betters, or to be spared the continuing consequences of the culture war.

    See you down the road, clingers. I will be the guy smiling at your chronic failures.

    1. Zero tolerance for Chinese Commie agents. Start shopping the Caracas apartment market. Bring toilet paper.

  3. There’s a difference between having a contract withdrawn because of your speech, and having a contract withdrawn because everyone hates you because of something you said. This is the latter. Clearly differentiable, the plaintiff ought to be sanctioned.

    1. “and having a contract withdrawn because everyone hates you because of something you said. This is the latter.”

      Oh, they did a survey? Had a representative sample of the community?

      I sincerely doubt even a majority of the community hated him. Rather, a very noisy but small minority did.

      1. Brett, if you want to insist he was right to be highly offensive, well, it makes you look just as big a fool, but you’d at least be making an argument that stands up under its own weight.

        Surely you can’t pretend his highly offensive ranting didn’t offend just about everybody, though?

        1. I don’t think it would be pretending to say that. Rather, it’s the honest truth.

    2. Which Supreme Court decision made the distinction that you claim?

      1. Why would it require a SC decision? It’s the obvious meaning which has never been (seriously) disputed.

        1. Beyond the difficulty of proving “everyone hates you”, I think First Amendment precedents from the Supreme Court indicate that if that kind of animus is based on protected speech, then it’s an improper motive for the government to cancel or withdraw a contract. For example, Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr (518 U.S. 668) (1996).

          You wrote that the two cases you described are “clearly differentiable”, so you have the burden of explaining why a court would make that distinction. A Supreme Court case would be the most convincing way of doing that.

    3. No. No there isn’t a difference. Not when a governmental entity does it.

      “the first amendment only protects popular speech”. That’s fucking hilarious.

      1. It’s not hilarious is how many people seem to agree with that take on the First

      2. I didn’t say anything of the sort. The speech is protected, the speaker is not protected from the social consequences of saying it.

        To quite a large extent, it comes to the same thing. But one is lawful, the other not. Don’t say ‘we sacked him because of what he said’; do say ‘we sacked him because everyone hates him’.

        1. dot dot dot because of what he said.

        2. Being punished financially by termination of a signed contract is not a “social consequence”.

          So yeah, that’s exactly what you’re saying – anything goes because what he said is unpopular. To you, especially.

  4. Zero tolerance for Chinese Commie agents. Start shopping the Caracas apartment market. Bring toilet paper.

  5. Is the purpose of contract law to force people to keep promise they do not want to? How is that going lawyers? The legal fees needed to enforce this worthless lawyer garbage methodology will exceed the profits from the food contract. You stink, you filthy traitors.

    Compare to EBay. If a bidder wins my CD for 1 cent, I am motivated to keep my promise to avoid a negative rating. After a few failures to keep my promises, I am kicked out of a market worth $billions.

    1. I have a great deal of sympathy for what you’re saying here. The legal system absolutely sucks at contract enforcement. I’ve suffered from that myself, had a lovely universal life policy with a high guaranteed rate of return, issued when inflation peaked back in the 80’s.

      When inflation dropped to near zero, I was putting every cent I could into it, and looking at an early retirement, until a court decided to let the insurance company unilaterally change the terms of the policy.

      You may be quite sure that, if things had changed to make the policy a worse deal for me, not better, the courts would not have been particularly solicitous.

      1. “Universal” life insurance, “whole” life insurance, “permanent” life insurance are notorious rip offs designed to separate the rubes from their money. Nobody should ever buy that crap.

        Sorry you got taken. The Consumer Financial Protection Bureau was formed to address exactly these kinds of scams. Unfortunately, their effectiveness has not been stellar, and they face a particularly stiff headwind from those who make big $$$$ from scamming the vulnerable.

        1. The only reason I was taken is that a court agreed to let the company unilaterally change the terms of the contract. Otherwise I was doing fine.

          I was taken by the court, not the insurance company…

          1. Right. It’s the gubmint’s fault.

            Sure, Jan.

      2. Usually the legal system makes up a brand new bunch of rules to help the “little guy” out of bad contracts. But not always.

      3. “a court decided to let the insurance company unilaterally change the terms of the policy.”

        Bull crap. That has never happened. You might have been one of the idiots who signed away their rights without reading the letter they sent you.

  6. Notice how no one tries to allege that he was wrong….

    1. No one _bothers_, Jimmy, not ‘tries’.

      1. Another distinction without a difference.

    2. I alleged that he was wrong up above.

      If you really believe that Covid was a hoax and we’re being brainwashed, you need to find help. And I’m sure you’d be fine with a cop doing to you what they did to Floyd.

      1. Covid is real.
        The hysterical overreaction to a disease with a 0.5% mortality rate is the problem.
        Quarantine of the young and healthy, closing “non essential” businesses, losing schools, cancelling cancer screening, were all not needed.

        The elderly and medically vulnerable were the ones who should have been quarantined and worn masks in public.
        That was the proper response.
        Not the fearful media drumming we are all going to die

  7. docduracoat, you think the lethality of Covid-19 was too low? Was WWII lethal enough for you? Even in the U.S., which was relatively mildly affected, WWII was a big deal. Did the U.S. overreact to WWII?

    Covid-19 killed Americans at a rate about 8 times faster than WWII killed Americans. In a bit more than 1 year, Covid-19 inflicted about twice as many fatalities on Americans as WWII did in 4 years.

    Commentary such as yours seems mysteriously common, until you reflect that it is motivated only by ideologically-inspired stupidity. Where the stupidity comes from is the real mystery.

    1. Yes, but you know what, Stephen, your comparison of pandemic deaths to war deaths is equally as stupid, or if not, quite cynical.

      The 1918 flu pandemic killed somewhere from 20 to 50 million in two years, whereas the number killed in WWI was 20 million. So what? What does one have to do with the other? Nothing.

      The world population now is more than three times what it was at the end of WWII. Did you factor that into your comparison?

      docduracoat’s point is legit, and one I agree with: the reaction to this on the part of government was out of proportion with the threat, and included many totally unjustified restrictions on people’s freedom, and business. For example, the mask mandates: the masks the vast majority of people wear are completely ineffective against a coronavirus. If the government was sincere in insisting on real protection, they would have developed and distributed truly effective masks, and provided training for the populace in their use. Were you ever offered training in mask use, or even referred to a site where you could learn? No. It was all about authority and submission.

      The sick should have been quarantined, and the particularly vulnerable, like the elderly, strongly protected. Instead, often the exact opposite was done, per NY State’s nursing home tragedy.

      You shouldn’t be so quick to call people stupid on here; check yourself occasionally.

    2. People focus on the death rate as if it’s the sole indicator of how serious the pandemic was. Or is, I guess, considering that the current infection and hospitalization rates among the unvaccinated are similar to what they were in January.

      Anyway, this ignores the fact that Covid tends to permanently and severely fuck people up without killing them. Lungs. Hearts. Kidneys. Spence of taste and smell. A lot of folks have had to get (or are waiting for) lung transplants, which means they’ll probably be dead in 5 years. Should they count in the fatality rate?

      1. “Anyway, this ignores the fact that Covid tends to permanently and severely fuck people up without killing them. ”

        This is true of all of these kinds of diseases. Do some research on lasting effects of H1N1, for example. Nothing new here.

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