Saying “the First Amendment is not absolute,” a federal judge rejected an initial attempt to require state officials to reinstate a biologist who was fired because of a social media post after the murder of conservative leader Charlie Kirk.
U.S. District Judge Mark Walker’s ruling Thursday came in a lawsuit filed by biologist Brittney Brown, who worked for the Florida Fish and Wildlife Conservation Commission, alleging that her Sept. 15 firing — five days after Kirk was shot during an appearance at a Utah university — violated her First Amendment rights. Brown sought a preliminary injunction to require the commission to reinstate her.
While Walker’s order sided with state officials in denying a preliminary injunction, he also indicated that a decision about reinstating the fired employee could change if more information is provided to bolster Brown’s arguments.
Lawyers for commission Executive Director Roger Young and Melissa Tucker, a division director, said the agency fired Brown to “prevent foreseeable disruption, reputational harm and loss of public trust. The agency did not police ideology; it protected credibility central to its mission.”
The decision about whether to grant the “extraordinary relief” sought in a preliminary injunction rested on whether Brown’s speech rights outweighed the rights of the state agency to operate efficiently, Walker’s ruling said.
“As discussed at length on the record at the hearing on plaintiff’s motion, the crux of this case comes down to whether plaintiff has met her burden … to show that her free speech interest outweighs FWC’s (the Fish and Wildlife Conservation Commission’s) interest in the effective and efficient fulfillment of its responsibilities,” Walker, who held a hearing Monday, wrote in a 12-page order.
“Weighing both sides’ competing interests” involves “a nuanced, fact-intensive determination,” the judge said.
“And while plaintiff asserts the record is sufficient to demonstrate that the scale tips in her favor at this juncture, this court is not persuaded given the extraordinary affirmative relief plaintiff now seeks — namely, reinstatement to her previous position,” the ruling said. “At this early stage, plaintiff has not yet demonstrated that her interests tip the scales. Only time will tell if this changes on a more developed record.”
Brown was fired after she reposted on her personal Instagram account a post from an account called “@whalefact.” The post said, “the whales are deeply saddened to learn of the shooting of charlie kirk, haha just kidding, they care exactly as much as charlie kirk cared about children being shot in their classrooms, which is to say, not at all,” according to the lawsuit.
Walker pointed to an “unrebutted declaration” by Tucker, who testified that there was a largely negative reaction from the public about Brown’s post. The public outcry “disrupted agency operations, required diversion of staff resources to manage responses, and raised legitimate concerns about the agency’s credibility and public trust,” according to Tucker.
Walker’s ruling said that Brown “understandably argues that Tucker’s declaration was short on specifics and largely conclusory” but noted that the fired worker’s lawyers did not seek to question Tucker or cross-examine her at Monday’s hearing “to explore flaws” in the state’s position.
“Without more, this court cannot conclude on this sparse record that the public’s negative reaction was not disruptive enough to justify the action FWC took,” the judge wrote.
Gary Edinger, a Gainesville-based First Amendment attorney who represents Brown, said in an email Friday that Walker’s ruling wasn’t unexpected, based on the judge’s questioning during the hearing.
“Preliminary injunctions are extraordinary and rarely granted in the federal courts. It is a shame we could not prevail coming right out of the starting gate, but the writing is clearly on the wall in this case. We expect to do well at trial,” Edinger said.
Edinger told Walker that Brown’s lawyers did not seek to depose Tucker or request documents from the state agency in advance of Monday’s hearing because they wanted to move forward with the case as quickly as possible. Brown has been unemployed for a month and she would not be eligible for back pay, even if she is reinstated, Edinger argued.
Walker this week fast-tracked the case, setting what Edinger called “a remarkably expedited rocket docket” in Brown’s attempt to get her job back.
Edinger called Thursday’s ruling “about the best order I’ve ever received following a lost motion.” In a four-pronged analysis to determine whether Brown met legal standards for a preliminary injunction, Walker found that three prongs favored Brown’s position, Edinger said.
“As for the final prong — evidence of disruption at the FWC — the court determined that this was a factually intensive inquiry which requires additional development through discovery,” Edinger said.
Edinger told reporters Monday that he has been contacted by other government employees who were fired for posting negative comments about Kirk. He called officials’ response to the Kirk criticism unprecedented and said he was confident that Walker would ultimately rule in Brown’s favor.
“It’s going to be an important statement saying that the government can only go so far, and that we live in a free society and we have to tolerate a diversity of opinion, even amongst our peers, our neighbors and other public employees,” Edinger said.
–Dara Kam, News Service of Florida
Duncan says
I’m struggling to understand how a government agency’s difficulty managing complaints could justify overriding someone’s First Amendment rights. It seems unreasonable that a state agency could argue inconvenience as a basis to suppress speech simply because some hunting and fishing enthusiasts were upset by a personal post made by a biologist who happened to work for the FWC. This isn’t national security — it’s a wildlife agency. The response feels disproportionate and reactionary.
What makes this more troubling is the inconsistency. Public figures like Charlie Kirk routinely share highly charged and divisive opinions and are fully protected under the First Amendment. Yet someone expressing a personal viewpoint — unrelated to their official duties — faces consequences?
It feels fundamentally unfair. Either we have free speech protections or we don’t. A person using their personal account should not lose their rights because of who employs them, especially when their employer is simply uncomfortable with public response. The First Amendment doesn’t disappear because an agency finds criticism or public reaction difficult to manage.
Concerned Citizen says
Every employer has a code of conduct for employees. And if you violate it. It comes with consequences. Free speech is also not void of consequences.
R.S. says
But the teacher’s comments are correct because Kirk did indeed say that a few victims was the price we’d have to pay for gun rights. So, he approved of the shooting of the pupils as a price to pay. I don’t get it: Either we do have First Amendment rights or we don’t. It was extremely insensitive for the American NAZIs to plan a march through Skokie; but their First Amendment rights were upheld. The teacher’s comment may have been insensitive, but it was accurate and truthful.
JimboXYZ says
Florida is a right to work state, which like all political speak is an employer can fire anyone for no reason. She gave them an easy one. She’s free to find another job of her skill set. Then again, she has to drag that comment around with her for the rest of her career. FL has always been about shuffle the deck of employees as the economy goes from prosperity => recession. Anyone asking questions on your political or personal positions at work is a toxic co-worker. Avoid them, report to HR, they aren’t your friend. They’re looking to have you cancelled over being offended or finding a way to make trouble. HR is not on your side for anything pretty much. The employer pays them. There are labor laws & they will definitely do the bare minimum to be compliant while being loyal to the Company. That’s how they keep their jobs quite often. There are plenty of internal coups at every employer. Maximize your career potential, not be a victim of fabrication of issues.
Brittney Brown should have just studied her animal species & kept her opinions to herself. One has to wonder whether her motives were to have some sort of lawsuit in a get rich quick scheme & somehow be reinstated to keep her job ? If her social media was calculated like that. She needs to realize she rolled the dice on her education & career over a Charlie Kirk opinion. She was that stupid for that for the results to this point. Who knows, it may work out, but the risk & uncertainty wasn’t worth expressing an opinion to anyone seeking it or not.
R.S. says
The squelching of America, huh, Jimbo? Shut up and myob, huh, Jimbo? That’s the ticket to make democracy great again, huh?
JimboXYZ says
Perspective ? Brittney didn’t get squelched for her 1st amendment free speech. She was free to say whatever she wanted to about it & did. She got fired. There’s a difference. She was fired for expressing her 1st amendment free speech. She was fired more for the being a distraction & liability as an employee. She’s free to go back to that social media platform and say whatever she wants. Her employer, the State of FL (FWC) made it clear that as an employer, they don’t want to deal with the controversial antagonist. I’ve worked long enough to see those “baiter” types, they don’t last long at any employer, not unless there’s a network of them operating in their own little HS clique ? Democracy has always been, we get a vote for a ballot. That’s a 1:1 opportunity to express one’s free speech. Overstepping Democracy is a blatant attempt to influence the outcome of the vote. I still don’t see what Brittney stood to gain for that comment. Because she did exercise her free speech rights, still has the same free speech rights she always had. Maybe she sees herself parlaying this into a career change ? FWC empowered that career choice & move ? One thing about that ? There are no guarantees, it could be successful pivot, but I’m betting it was a step back instead of the vault forward ?
JimboXYZ says
“She was fired for expressing her 1st amendment free speech. She was fired more for the being a distraction & liability as an employee. ”
Ooops, mistyped that, corrected to:
She WASN’T fired for expressing her 1st amendment free speech. She was fired more for the being a distraction & liability as an employee.
Bill Boots says
I agree fully, especially with your last paragraph, social media has desensitized people at all levels, Brown had a professional position but lacked professionalism in posting that comment, posters should use discretion and keep nasty opines off a public forum, that’s called self discipline, aka, Professionalism!
Jim says
You fine folks remember your comments saying this woman should “be professional” and “should have just studied her animal species & kept her opinions to herself”. The day is coming where Trump and MAGA won’t be ruling and, if I were you all, seeing how you don’t think free speech is an American right (unless you’re speaking Trumpisms), I’d be a little concerned about how such “Trump talk” might be received by the next administration (hint: Trump won’t be there, nor Vance and his goons). They might decide that your kind of speech is grounds for termination as well.
You see, either we have free speech for all or we don’t have it at all. I’m amazed you all can’t see that.
Duncan says
Professionalism is subjective; our 1st Amendment right is not supposed to be.
Charlie Kirk’s entire persona was a nasty opine – just because someone called him out on it after his murder does not make it untrue.
exasperated says
“Brittney Brown should have just studied her animal species & kept her opinions to herself.”
Thanks for the morning laugh, I love irony.
Pierre Tristam says
If only we could say the same about some of the intellectually amoebic species in these comments who don’t mind shielding themselves behind the First Amendment–and anonymity–yet let their pot shots call the kettle black, obviously without catching their own irony.
Min says
Thank you, thank you P.T. so much for your sanity.
Duncan says
Florida’s employment laws or an agencies HR department in no way, takes precedence over our 1st Amendment rights. This is the not the Wild Wild West, although in the last decade or so Florida has certainly moved in that direction.
Perhaps your employer, if you have one, will take a look at your Flager Live posts and decide, he does not really care for your personal comments and can you.
It’s a slippery slope and that is why there is a 1st Amendment.
Atwp says
A person can’t say anything about Charlie Kirk. A dead white man, and if I say anything against him, I’m in trouble. Will not shut my mouth, I’ll get in trouble. Who was this man? Conservatives Kirk was just a man not a savior. He is dead leave him alone. Wow the country we live in.
Tired of it says
So Kirk could make all the racist, divisive, offensive, comments he wanted but….she can’t exercise her 1st Amendment rights? Her comments disrupted agency operations…please. We are living in a dictatorship.
Pierre Tristam says
That’s about the gist of it, yes. Let’s name college campus streets and high school clubs for a racist homophobe Islamophobe misogynist christian chauvinist and violence apologist, but point out his bigotry, even with humor, as the biologist did, and your professional life is over. Lucky for her, she was not an immigrant. Her genitals would have been attached to electrodes in a Salvadoran dungeon by now.
Min says
WOW,! Well in recent memory (20 years) I don’t recall Repugs having a sense of humor so there’s that, nor do they recognize irony or satire. So, yep THIS should hit different, yet it doesn’t seem to, why? It’s so immoral.
Sherry says
@ Tired of it. . . A truly excellent point! Thank You!
Marco Simone says
There is a difference between professional life and personal life. We have the protection of the first amendment so we can say pretty much anything (at least we used to have it). You don’t have to agree with what she said and you’re entitled to your opinion, just like she is entitled to hers. The fact people have been fired over this is unacceptable. She posted something on her personal account. The land of the free, home of the brave is becoming the land of the controlled, home of the meek.
Stand up for what you believe in, unless someone could disagree with you. Then you’ll be fired. S***, I might get fired for this.
Pogo says
@Gramp, what did you and Mema do when the goons
… were slithering, and then marching, to power?
We protested by doing nothing that mattered — and increasing and displaying our vocabularies. Remember — to not remember I said that.