Eleventh Circuit Rules on Retaliation Case

By John R. Byrne

Yesterday, the Eleventh Circuit ruled against Governor DeSantis in the First Amendment retaliation case filed by Andrew Warren, the former state attorney for Florida's Thirteenth Judicial Circuit. DeSantis had suspended Warren based on certain policies and advocacy. Warren then sued the Governor under section 1983, alleging that DeSantis retaliated against him for his First Amendment activity.

After a bench trial, the district court determined that "bringing down a reform prosecutor" and DeSantis's "anticipated political benefit from suspending a progressive prosecutor" were "controlling motivations for the suspension." But the district court still ruled for DeSantis, holding that neither qualified as First Amendment retaliation.

The Eleventh Circuit disagreed, saying they might. For example, if DeSantis sought to reap political benefit from punishing Warren's "protected [First Amendment] activities" as opposed to "unprotected activities," that would violate the First Amendment.

Very interesting read, including Judge Newsom's lengthy concurring opinion, which ends on a variation on the goose/gander line. Noting that the government can't muzzle "woke" speech with which it disagrees any more than it can muzzle "conservative speech," he writes: "What's good for mine is (whether I like it or not) good for thine."

More litigation to follow, as the Court remanded the case to the district court for re-weighing.

Warren Opinion by John Byrne on Scribd