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8 min read

Warren v DeSantis: Are Political Advocacy Statements Protected Speech?

American flag and Florida state flag waving against a cloudy blue sky

Andrew H. Warren, a state attorney, filed a § 1983 action against Ron DeSantis, the governor of Florida, alleging that DeSantis had unconstitutionally suspended him from office for his political advocacy. Warren sued, alleging the suspension violated his First Amendment Constitutional Rights. The district court found that DeSantis had both permissible and impermissible motives, and that two of the six factors that motivated DeSantis to suspend Warren were based on First Amendment-protected activity. However, despite this finding, the district court rejected Warren's claims on the merits, concluding that DeSantis would have suspended Warren regardless based on the other four factors. Subsequently, Warren appealed.


Circumstances Leading to the Suspension

In this Part, we begin with an overview of Warren's policies and advocacy, then explore how DeSantis investigated and ultimately suspended Warren.

Warren's Actions and Advocacy

Andrew Warren was elected as state attorney for Florida's Thirteenth Judicial Circuit in 2016 and reelected in 2020. As state attorney, Warren adopted policies to guide prosecutorial decisions, including a Discretion Policy that stressed using discretion based on each case's facts. He also adopted a Low-Level Offense Policy to not prosecute certain minor offenses during the COVID-19 pandemic, though prosecutors could overcome the presumption. Similarly, his Bike Policy created a presumption against prosecuting minor bike violations. 

Warren advocated criminal justice reform by signing statements from Fair and Just Prosecution opposing bills restricting transgender youth's healthcare access and committing to not prosecute abortions after Dobbs v. Jackson. Though he signed them as state attorney, the statements did not become office policies.

Keefe's Inquiry

DeSantis consulted his senior advisor, Larry Keefe, to look into whether any Florida prosecutors “were not enforcing the law.” Keefe initiated an investigation to address the governor's concern.

Keefe's investigation primarily revolved around gauging the perceptions of state attorneys, emphasizing their reputations over their actual approaches or decisions. During his discussions, Keefe conversed with Steve Casey of the Florida Sheriffs Association, who expressed a negative stance towards Warren, labeling him as a reform prosecutor. The law enforcement sector, as noted by Keefe, viewed Warren's strategies as causing disorder and upheaval, although specific actions or statutes were not explicitly mentioned.

Further delving into the matter, Keefe engaged with Orange County Sheriff John Mina, who categorized Warren and Monique Worrell as "progressive prosecutors." In his examination, Keefe honed in on Warren's initiatives, sourcing cases from the Hillsborough County sheriff and highlighting policies such as the Discretion Policy and the Bike Policy. Additionally, Keefe sought insights from former Tampa police chief Brian Dugan, who critiqued Warren's Bike Policy without seeking input from current police chiefs.

While scrutinizing Warren's practices, Keefe uncovered Warren's signed advocacy statements. Notably, it was unclear whether these statements had been formally adopted as office policies. Moreover, Keefe drew a connection between Warren's campaign donations from George Soros and speculated that Warren might be influenced by Soros's viewpoints on criminal prosecution, despite lacking direct evidence to support this claim.

Despite his investigative efforts, Keefe refrained from directly engaging with Warren or his office, choosing instead to gather perspectives from a select group of individuals familiar with Warren's operational methods.

Warren's Suspension

Florida's governor can suspend state officers like Warren for reasons like neglect of duty. In August 2022, Governor DeSantis suspended Warren, citing the transgender and abortion statements as evidence Warren neglected his duty and "put himself publicly above the law." Warren claims signing the statements was protected speech and not grounds for suspension.

Keefe informed DeSantis's legal team about Warren's suspension by supplying gathered information to Ryan Newman and Raymond Treadwell. Initially, Keefe crafted executive orders citing Warren's alleged neglect of duty or incompetence, mainly focusing on the FJP abortion statement. Over time, these drafts expanded to encompass advocacy stances on abortion, transgender care, capital punishment, and election-related issues, highlighting Warren's associations with Soros and the Democratic Party.

DeSantis's attorneys then revised Keefe's drafts to underscore Warren's non-prosecution policies as acts of incompetency and dereliction of duty under Florida law, with the goal of withstanding legal scrutiny. Subsequently, DeSantis issued the final executive order suspending Warren on the grounds of widespread non-prosecution policies, referencing specific statements on transgender care and abortion, and designating Susan Lopez as Warren's successor.

The suspension was publicly announced by DeSantis during a press conference in Tampa and on national television, where he asserted the implementation of a statewide review, despite the absence of comprehensive evaluations of all state attorneys or discussions with prosecutors in Warren's office.


Lawsuit and Appeal

Warren filed a lawsuit after his suspension, alleging DeSantis suspended him in retaliation for exercising his First Amendment right to free speech. Warren asked the court to declare the suspension unconstitutional and reinstate him. The district court denied Warren's motion for a preliminary injunction and dismissed his state law claim, but allowed his federal First Amendment claim to proceed. 

After a bench trial, the district court used the Mount Healthy framework to analyze whether DeSantis engaged in unlawful First Amendment retaliation. Warren met his initial burden to show his political affiliations and advocacy were protected by the First Amendment, his suspension was an adverse action, and his protected activity motivated the suspension. The burden then shifted to DeSantis to show he would have suspended Warren regardless of the protected activity. 

The court found Warren's advocacy and political associations contributed to his suspension, but DeSantis's primary motivations were bringing down a reform prosecutor and the resulting political benefit. While Warren's abortion statement, policies, and performance provided cover to justify the suspension, the actual facts did not matter to DeSantis. The court concluded DeSantis would have suspended Warren based on his performance and anticipated political benefit, which were not protected by the First Amendment. As a result, the district court ruled against Warren, denying him injunctive relief, leading Warren to appeal the decision to the Eleventh Circuit Court of Appeals.


Burden of Proof for Warren's First Amendment Claim

Warren argued that DeSantis suspended him for activities protected by the First Amendment. Under the Mount Healthy framework, Warren had to show he engaged in protected activity, suffered an adverse action, and a causal connection exists between the two. Warren carried this initial burden by showing he engaged in protected political activity and advocacy, suffered the adverse action of being suspended, and the protected activity caused the suspension.

The district court found DeSantis suspended Warren based on six factors, including Warren's political affiliations and advocacy protected by the First Amendment. The court said the other four factors - Warren's performance, the abortion statement sentence, two office policies, and DeSantis's political benefit - were not protected. The court determined DeSantis would have suspended Warren anyway based on the unprotected factors. 

The appeals court disagreed for two reasons. First, Warren's support of the abortion statement sentence was protected. Second, DeSantis cannot claim he would have suspended Warren absent the protected activity, since gaining political benefit by targeting a reform prosecutor is prohibited. On remand, the court should reconsider the same-decision defense based only on Warren's performance and the two office policies.

Signing Statements Not Government Speech

The First Amendment protects Warren's signing of the statements despite the government-speech doctrine from Garcetti v. Ceballos. Garcetti held that public employees' speech pursuant to official duties is not protected, but its rationale is suspect for elected officials like Warren. Unlike regular employees, elected officials are answerable to the electorate, not their superiors. As such, the Supreme Court has never applied Garcetti to elected officials. More apt is the doctrine from Wood v. Georgia protecting elected officials' right to freely express themselves.

Even if Garcetti were deemed applicable, Warren's statements were made as a private citizen discussing a public issue. His obligations under Florida law don't mandate his endorsement of advocacy statements. His speech didn't further his official duties, utilize work resources, or exploit his position. The use of his title when signing isn't crucial; the key factor is whether the expression is inherently linked to his role, which isn't the case with his endorsement of the statements. As an elected official, it's probable he was representing his constituents.

Because the government-speech exception must be read narrowly, the appeals court held that Warren's signing the statements remains protected speech. Broadening the exception here would be improper.

Signing Statements Did Not Impede Warren's Performance

The Supreme Court's Pickering ruling held that the First Amendment does not protect government employee speech that impedes job duties. However, Pickering likely does not apply to elected officials like Warren. Even if it did, Warren's interest in signing the statements outweighs the government's interest. Warren did not distribute the statements to prosecutors or use them for training. His office never encountered a related case. Thus, the statements had no effect on his office's functions.

The rationale behind Pickering does not support applying it to elected officials. The state does not act as a traditional employer toward Warren. When the state is not a traditional employer, Pickering does not apply. Every circuit that has considered this issue has declined to apply Pickering balancing to elected officials' free speech claims. As such, the appeals court also declined to apply Pickering, adding that Warren's interest would still prevail under Pickering's analysis even if it were applied.


DeSantis's Same-Decision Defense

The court ruled that Warren met his initial burden of showing DeSantis suspended him for protected First Amendment activity. The burden then shifted to DeSantis to prove he would have made the same decision without the protected activity. DeSantis had to show legitimate reasons motivated the suspension.

First Amendment Protects Warren's Political Affiliations

The court agreed with the district court that the First Amendment protects government employees like Warren from adverse actions based on partisan considerations. The policymaker exception does not apply to elected officials like Warren.

The court ruled that Warren's political beliefs are safeguarded by the First Amendment. This protection extends to government employees, ensuring they are not penalized for their partisan views. While there are exceptions for certain roles termed as "policymakers," the key consideration is whether political affiliation is truly necessary for effective job performance. In this case, as an independently elected state attorney, Warren serves the interests of the voters, not the governor.

Governor DeSantis argues for the policymaker exception, typically applied in disputes between hiring authorities and employees. However, in this scenario involving two elected officials, the exception is not applicable. Elected prosecutors like Warren translate the mandates bestowed by the electorate into policies.

Ultimately, since Warren was elected by the people of Hillsborough County and not appointed by DeSantis, aligning with the governor's political views is not a job requirement for the state attorney role. Hence, Warren's political affiliations are rightfully protected under the First Amendment.

First Amendment Protects Sentence in Abortion Statement

The district court incorrectly ruled that the statement committing to not prosecute abortions was unprotected conduct. The Supreme Court has never stripped statements of future conduct of First Amendment protection just because they express future conduct. Rather, it has distinguished between protected statements of future conduct and unprotected categories like incitement. DeSantis failed to identify an unprotected category for the sentence, so it is presumptively protected.

Courts must assess statements in their full context to determine if they are protected or unprotected speech. The sentence was part of a broader advocacy statement that enjoys First Amendment protection. Analyzed in context, Warren's act of signing an advocacy statement with a sentence about not prosecuting abortion was protected speech. It was a statement of future conduct, not an unprotected policy decision.

First Amendment Protects Warren from Suspension for Political Benefit

Anticipated political benefit does not make an otherwise lawful action unconstitutional. However, the political benefit cannot be based on punishing protected activity. Here, the benefit was based on Warren's reputation as a reform prosecutor and his political ideology, which are protected. DeSantis identified him as a reform prosecutor and suspended him to gain political benefit. The First Amendment prevents officials from targeting someone for their protected speech and ideas.


DeSantis's Probable Cause Argument

DeSantis argues that Warren must show he lacked probable cause for the suspension to maintain a claim of First Amendment retaliation. The district court disagreed, ruling that DeSantis lacked probable cause, which would not be enough to dismiss Warren's claim. DeSantis's lack of probable cause is key here, regardless of whether it would have affected Warren's claim.

There are two main approaches for retaliation claims against government officials. In cases of alleged retaliation by an employer, we usually follow the approach outlined by the Supreme Court in Mount Healthy. This involves determining if the employer's retaliatory intent was the main reason behind the adverse decision. When the defendant arrests or prosecutes the plaintiff, a different approach comes into play, requiring a demonstration of a lack of probable cause.

DeSantis suggests using the second approach, focusing on probable cause. However, Warren demonstrated that DeSantis did not have probable cause for the suspension. For there to be probable cause, DeSantis needed to reasonably believe that Warren had instituted blanket non-prosecution policies amounting to neglect of duty or incompetence. The court concluded that DeSantis could not have reasonably held this belief as Warren's office had no blanket policies restricting discretion.

DeSantis's argument comparing probable cause in the context of wrongful arrests to suspensions was misplaced. Unlike in arrests, where quick decisions are made in challenging situations, suspensions do not have the same urgency. DeSantis failed to consider crucial information that contradicted the reasons for Warren's suspension. His staff did not investigate how Warren's office implemented policies or how advocacy statements impacted its operations. By disregarding available information, DeSantis did not have probable cause to claim neglect of duty or incompetence by Warren, making the discussion on whether probable cause could defeat Warren's claim irrelevant.


Final Ruling

The majority vacates and remands. It finds the district court erred in treating one sentence in an advocacy statement by Fair and Just Prosecution (FJP) as an unprotected policy statement rather than protected speech. This sentence committed signatories to refrain from prosecuting abortion. In context, the statement did not constitute policy or performance, but advocacy speech entitled to protection. The court improperly isolated the sentence from its advocacy context. DeSantis was aware Warren later clarified he would exercise discretion on abortion prosecutions. The majority concludes this was an improper First Amendment activity rationale that requires reweighing on remand.

The concurrence argues the FJP statement and Warren's joining it constituted core political speech on a major public issue, at the heart of First Amendment protection. Elected officials especially require latitude to speak on public issues. The statement followed no official policy process. Its substance, context and Warren's later statements show it did not enact a blanket non-prosecution policy. Though some dislike Warren's views, the First Amendment protects such speech equally.