The Volokh Conspiracy
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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.
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.}
