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
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