The Volokh Conspiracy
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Court Upholds Florida School District's June 2020 Decision to Cancel Food Supply Contract with Farm Whose Owner Viewed as Covid as Hoax
"[T]he evidence shows that the school system's interests in food safety were the reasons for its decision to break ties with Oakes Farms—not its bare disagreement with [owner's] political views."
From Wednesday's decision in Oakes Farms Food & Distribution Servs., LLC v. Adkins, decided by Eleventh Circuit Judge Britt Grant, joined by Judges Jill Pryor and Stanley Marcus:
In spring 2020, the Covid-19 pandemic turned the world upside down. Alfie Oakes, the owner of a Florida farm and agriculture business, disagreed with the government's response—strongly—and he was not afraid to say so. He took to Facebook, where he described the virus as a "hoax" perpetrated by "corrupt world powers and their brainwashing arms of the media" to dupe "lemmings" with "COVID programming." Oakes also shared his opinions on other topics—the Black Lives Matter movement and George Floyd, to name a few.
Oakes Farms had been selling fruits and vegetables to a local school district for years, and the school board grew worried that Oakes's views about the pandemic betrayed a lax approach to food safety during a time when not much was known about Covid-19's transmissibility. Worries deepened after requests for the farm's pandemic protocols turned up nearly nothing, so the superintendent terminated the produce contract. Both Oakes and his farm sued, saying that the contract termination violated Oakes's First Amendment rights.
The district court saw things differently, and granted summary judgment to the school district. We agree. Although the owner was speaking as a citizen on important matters of public concern, the evidence shows that the school system's interests in food safety were the reasons for its decision to break ties with Oakes Farms—not its bare disagreement with his political views. Had there been evidence that the real motivation was punishing Oakes for these views, whether about Covid-19 or racial topics, it would be a different matter. But here, the evidence is not reasonably in dispute….
The First Amendment's prohibition on any law "abridging the freedom of speech" leaves room for the government's interests when it acts as an employer or marketplace consumer, rather than as a sovereign. In those contexts, to protect workplace efficiency and related interests, the government retains the ability to restrict its employees' speech well beyond the limitations it could place on private citizens. Otherwise, even backtalk about the most trivial internal matters could open a constitutional debate, potentially grinding essential government services to a halt.
Of course, that does not mean government employees have no free speech rights at all. Our cases have built a framework for vindicating public employees' First Amendment rights while still respecting the government's legitimate workplace interests. Under the employee-speech doctrine, we work through three questions to assess whether the government has unconstitutionally retaliated against an employee's speech. First, did the employee speak "as a citizen on a matter of public concern"? Second, did the employee's right to speak outweigh the government's interest "in effective and efficient fulfillment of its responsibilities"? Third, did the speech play "a substantial part in the adverse employment action"? …
Here, the speaker was not a government employee. He was the owner of a business that contracted with the government. But the Supreme Court has already confirmed that … the public employee speech cases … apply to independent contractors. "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." …
Oakes clears the first step of the … test. When posting about controversial political topics on his personal Facebook page, on a Saturday no less, he was speaking as a citizen on matters of public concern. We turn, then, to the heart of the government-contractor speech analysis: balancing the school district's legitimate interests against Oakes's right to free speech….
Because courts are not human resources departments, we engage in a "deferential weighing of the government's legitimate interests" to avoid constitutionalizing every workplace grievance. Under that standard, we cannot say that the school district's interests here were insignificant. After all, the owner and namesake of Oakes Farms not only believed, but also felt compelled to publicly declare, that the Covid-19 pandemic was a conspiracy by "corrupt world powers" to bring down disfavored political figures, that only "lemmings" who were "controlled by deceit and fear" could be concerned about it, and that safety precautions taken in response were bringing the nation's economy "to ruins."
Superintendent Adkins had more than a thin basis for alarm. The combination of all those statements is highly probative of, as Adkins himself put it, "not taking this seriously." Add to that the less-than-reassuring responses following the school district's efforts to verify the adequacy of Covid safety protocols at Oakes Farms, and we cannot discount the weight of the district's interest in ensuring food safety for its students.
Adkins always—both publicly and privately—grounded his decision to cancel the contract on his concern for food safety. He testified that "[s]taff brought to [him] a concern about the lack of protocols that Oakes Farms had in terms of how it handled its food." That those worries blossomed into an investigation of Oakes Farms' antivirus protocols underscores their grounding in food safety. As Adkins explained, "Oakes Farms' perceived lack of concern regarding the easy transmission of COVID-19 and Mr. Oakes' belief that COVID-19 is not real" threatened "the health, safety, and welfare of the children" at Lee County schools. And he said that knowing the decisions he made "impact[ed] the lives of our students" and "their families," he needed "to err on the side of safety, particularly during a health crisis pandemic." We should be clear that this testimony supports the argument that Adkins's concern was food safety—not disagreement with Oakes's views about Covid.
To be sure, it appears obvious that Adkins did disagree with Oakes about Covid-19. But that difference in viewpoint was not the basis for his actions—a concrete concern about food safety was. That Oakes's speech alerted Adkins to the concern does not mean that he was being punished for his viewpoint, just like firing an employee after he confesses to embezzlement is not the same as punishing him for his different perspective on personal use of company funds.
There are fair questions about the strength of the district's interests because of what we know today about how Covid-19 spreads and its relationship to food safety. And Oakes Farms points to an FDA statement printed on the Marjon Specialty Foods protocols it handed over to school officials: "Currently there is no evidence of food or food packaging being associated with transmission of COVID-19." But the uncertainty and fear that were almost omnipresent during June 2020 make a demand for perfect scientific precision unfair to the school district. And poking holes in its choices with the benefit of hindsight is far from the deferential posture we assume when reviewing the government's interests.
That is not to say that any government fear justifies terminating a contract based on a contractor's speech. If Oakes owned a company that provided the school district with software, his views on Covid-19 would likely have been irrelevant. It would have been much harder for the district to show that it canceled the contract for any reason besides disagreeing with his viewpoint on Covid (or any of the other issues). But here, the tight connection between produce and physical health gave the government's interests significant heft.
No doubt, Alfie Oakes's interests were also substantial. He was speaking on matters of great public concern and widespread discussion. He posted on his personal Facebook page on a Saturday, and the speech drew no direct connection to his contract with the district. But ultimately, when viewed with the required deference, the school board's interests in ensuring the safety of food served to its students outweighed Oakes's right to free expression….
For more, including the court's explanation why there wasn't enough evidence to support Oakes' theory that "[t]he talk of food safety was a pretext for the district's real concerns, he says—Oakes's statements disparaging Black Lives Matter and George Floyd," see the full opinion. The court, however, added:
But let us be clear—if there were evidence of retaliation against Oakes because of his views on Black Lives Matter or George Floyd, that would be completely out of bounds. And the district court was incorrect to suggest the contrary. For example, it concluded that "Mr. Oakes's speech contradicted the messages of inclusion and anti-racism that the School District was promoting to its students," a concern that is plainly irrelevant to his company's food-services role. And the court also mused that "[p]rotests, and even the threat of protests, weigh in favor of the government's legitimate interest in avoiding disruption."
This kind of heckler's veto concern is not enough to survive First Amendment scrutiny. "Speech cannot be … punished or banned[ ] simply because it might offend a hostile mob." But the school district never advanced these interests and Oakes Farms has not shown that the decisionmakers were motivated by them, so we need not consider them here….
For more on how the heckler's veto plays out in at least some other government-as-employer cases, see this post.
Christopher Dale Donovan (Donovan Appellate Law, PLLC), James Donald Fox (Roetzel & Andress, LPA), Philip Fairman and Steven Sundook (Vernis & Bowling of Southwest Florida, PA), and William Talley (Cruser Mitchell Novitz Sanchez Gaston & Zimet, LLP) represent defendants.
