Abby Martin v. Chancellor for The Board of Regents of The University System Georgia, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12827
Non-Argument Calendar
____________________
ABBY MARTIN,
Plaintiff-Appellant,
versus
CHANCELLOR FOR THE BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA,
PRESIDENT OF GEORGIA SOUTHERN UNIVERSITY,
BONNIE OVERSTREET,
Conference Services Manager for Georgia Southern University,
in her Individual Capacity,
MICHEL BLITCH,
Conference Services Coordinator for Georgia Southern University,
in her Individual Capacity,
SANDRA LENSCH,
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2 Opinion of the Court 22-12827
Conference Services Specialist for Georgia Southern University,
in her Individual Capacity,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-00596-MHC
____________________
Before WILSON, BRANCH , and L UCK , Circuit Judges.
PER CURIAM:
Abby Martin appeals the district court’s dismissal of her 42
U.S.C. § 1983 suit in favor of Michel Blitch, Bonnie Overstreet, and
Sandra Lensch (“Defendants”)1 on the grounds of qualified
immunity. She argues that the district court erred in dismissing her
claim that Defendants violated her First and Fourteenth
Amendment rights by refusing to contract with her to speak at an
academic conference unless she signed a clause, required by
1 Martin also brought suit against Steve Wrigley, then-Chancellor for the
Board of Regents of the University System of Georgia, and Kyle Marrero,
President of Georgia Southern University. However, these claims are not
otherwise on appeal, so any reference to “Defendants” hereafter is solely to
Blitch, Overstreet, and Lensch.
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22-12827 Opinion of the Court 3
Georgia law, promising she would not participate in a “boycott of
Israel” for the duration of the contract. Specifically, Martin argues
that, because it was clearly established that Defendants should have
known that Georgia’s law requiring the clause violated the
Constitution, they are not entitled to qualified immunity. For the
following reasons, we affirm.
I . Background
In 2016, the State of Georgia enacted O.C.G.A. § 50-5-85,
which prohibits the State from entering into certain contracts
unless the contractor certifies that it is not currently engaged in,
and agrees for the duration of the contract not to engage in, a
“boycott of Israel.” § 50-5-85(b). Under the statute, a “boycott of
Israel” is defined as “refusals to deal with, terminating business
activities with, or other actions that are intended to limit
commercial relations with Israel or companies doing business in
Israel . . . .” § 50-5-85(a)(1). Under the version of the law in effect
at the time of Martin’s failed contract, state agencies were required
to include such contractor certifications for products or services
valued at $1,000 or more. See 2016 Ga. S.B. 327; O.C.G.A. § 50-5-
85(b) (2016). However, on July 1, 2022, amendments to § 50-5-85
took effect which limits its scope to companies with five or more
employees and to contracts valued at $100,000 or more.2 See 2022
Ga. H.B. 383; O.C.G.A. § 50-5-85(b) (2022).
2 Under the statute as amended, individuals and sole proprietors, such as
Martin, are eliminated from the statute’s coverage. See O.C.G.A. § 50-5-85(b).
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Plaintiff Martin is a journalist and filmmaker who, in 2019,
sought to enter into an agreement with Georgia Southern
University to serve as a keynote speaker at an academic conference
hosted by the university, for which she was to receive $1,000 and
limited travel expenses. Defendants Overstreet, Blitch, and Lensch
were all employees of Georgia Southern at the time, and each was
involved in coordinating the conference. In their effort to secure
Martin as a keynote speaker, Defendants sent Martin a draft
agreement regarding her compensation for her review and
signature.
Because Georgia Southern is a public university, in 2019,
Defendants were required by O.C.G.A. § 50-5-85 to include in the
agreement language certifying that Martin was not engaged in, and
for the duration of the agreement would not engage in, a boycott
of Israel. Martin, who describes herself as a member of the
“Boycott, Divestment, and Sanctions movement” (“BDS
movement”), a political boycott of Israel, refused to sign the
agreement because of the inclusion of the certification language.
As a result, Georgia Southern did not enter into the contract with
her to keynote the conference, as doing so without the certification
language would have violated Georgia law. The conference was
later cancelled by its organizers.3
Martin filed suit, asserting various First and Fourteenth
Amendment claims. Specifically, she claimed that O.C.G.A. § 50-
3 Organizers claimed the cancellation of the conference was their “statement”
in protest of O.C.G.A. § 50-5-85.
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22-12827 Opinion of the Court 5
5-85 restricts protected speech and compels speech in violation of
the First Amendment and is unconstitutionally vague in violation
of the Due Process Clause of the Fourteenth Amendment; she
sought injunctive and declaratory relief against Steve Wright, then-
Chancellor for the Board of Regents of the University System of
Georgia, and Kyle Marrero, President of Georgia Southern
University.4 She also asserted claims under 42 U.S.C. § 1983 against
Defendants in their individual capacities, claiming she suffered a
loss of her First and Fourteenth Amendment rights by the inclusion
of § 50-5-85’s mandatory certification language; she sought
damages as relief.
In May 2021, the district court granted in part and denied in
part a motion to dismiss filed by Defendants, dismissing Martin’s
§ 1983 claim for damages against Defendants on qualified
immunity grounds.5 Martin timely appealed.
II. Discussion
We review a district court’s decision to grant a motion to
dismiss based on qualified immunity de novo, accepting the factual
4 Martin’s injunctive and declaratory relief claims are not on appeal.
5 The district court permitted Martin’s First and Fourteenth Amendment
official-capacity claims for equitable relief to proceed. However, in July 2022,
the aforementioned amendments to § 50-5-85 took effect, which rendered the
statute inapplicable to Martin. See 2021 Ga. H.B. 383. As a result, the district
court dismissed her remaining claims for equitable relief for lack of standing
and on mootness grounds. Martin does not challenge this dismissal on appeal.
The only claims that remain on appeal are her 42 U.S.C. § 1983 claims for
damages against Defendants.
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allegations in the complaint as true and drawing all reasonable
inferences in the light most favorable to the non-moving party.
Paez v. Mulvey, 915 F.3d 1276, 1284 (11th Cir. 2019).
“In order to prevail on a civil rights action under § 1983, a
plaintiff must show that he or she was deprived of a federal right
by a person acting under color of state law.” Griffin v. City of Opa-
Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Martin argues that
Defendants’ inclusion of the anti-boycott clause, mandated by
O.C.G.A. § 50-5-85, violated her First Amendment right to free
speech and freedom of expression, as well as her Fourteenth
Amendment right to due process. On appeal, she argues that the
district court erred in finding that qualified immunity barred her
suit against Defendants.
“Qualified immunity offers complete protection for
individual public officials performing discretionary functions
‘insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.’” Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th
Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
To assert the defense of qualified immunity, Defendants must first
show that they were performing a discretionary function. Barnes v.
Zaccari, 669 F.3d 1295, 1303 (11th Cir. 2012). It is undisputed on
appeal that Defendants were acting in their discretionary authority
here.
“Once discretionary authority is established, the burden
then shifts to the plaintiff to show that qualified immunity should
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22-12827 Opinion of the Court 7
not apply.” Edwards v. Shanley, 666 F.3d 1289, 1294 (11th Cir. 2012)
(quotation omitted). A plaintiff can demonstrate that qualified
immunity does not apply by showing (1) that a defendant violated
a constitutional right and (2) that the constitutional “right at issue
was clearly established at the time” of the alleged violation. Crocker
v. Beatty, 886 F.3d 1132, 1135 (11th Cir. 2018). The Supreme Court
has made it clear that we can address either prong “of the qualified
immunity analysis . . . first in light of the circumstances in the
particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236
(2009).
As for the second prong, a constitutional right is clearly
established “only if its contours are ‘sufficiently clear that a
reasonable official would understand that what he is doing violates
that right.’” Vaughan v. Cox, 343 F.3d 1323, 1332 (11th Cir. 2003)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “When
we consider whether the law clearly established the relevant
conduct as a constitutional violation at the time that [the
government official] engaged in the challenged acts, we look for
‘fair warning’ to [the official] that the conduct at issue violated a
constitutional right.” Jones v. Fransen, 857 F.3d 843, 851 (11th Cir.
2017) (quoting Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011)
(en banc)). “‘Fair warning’ comes in the form of binding caselaw
from the Supreme Court, the Eleventh Circuit, or the highest court
of the state (Georgia, here) that ‘make[s] it obvious to all
reasonable government actors, in the defendant’s place, that what
he is doing violated a federal law.’” Id. (quoting Priester v. City of
Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000)). There are three
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8 Opinion of the Court 22-12827
ways a plaintiff can show that a government official had “fair
warning”:
First, the plaintiff[] may show that a materially similar
case has already been decided. Second, the plaintiff[]
can point to a broader, clearly established principle
that should control the novel facts of the situation.
Finally, the conduct involved in the case may so
obviously violate the constitution that prior case law
is unnecessary.
Gaines v. Wardynski, 871 F.3d 1203, 1208 (11th Cir. 2017) (quoting
Terrell v. Smith, 668 F.3d 1244, 1255–56 (11th Cir. 2012)).
As we have expressed, “[t]he second and third methods are
known as ‘obvious clarity’ cases,” and are “narrow exception[s]”
that “don’t arise often.” King v. Pridmore, 961 F.3d 1135, 1146 (11th
Cir. 2020) (quotations omitted). And, “[i]n light of the rarity of
obvious clarity cases, if a plaintiff cannot show that the law at issue
was clearly established under the first (materially similar case on
point) method, that usually means qualified immunity is
appropriate.” Id.
Here, our inquiry begins and ends with the “clearly
established” prong.6 Martin invokes all three methods in an
6 Because we conclude that Martin is unable to show that Defendants violated
a right that was “clearly established in the specific context of the facts in this
case, we do not reach the question of whether Defendants violated [Martin’s]
constitutional rights.” Jones, 857 F.3d at 851.
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22-12827 Opinion of the Court 9
attempt to show that Defendants violated a “clearly established”
constitutional right. We address each method in turn.
A. Materially Similar
First, Martin argues that Cole v. Richardson, 405 U.S. 676
(1972), is “materially similar” and “clearly establishes” that
Defendants’ actions were unconstitutional. We disagree.
To show that a constitutional violation was clearly
established by a “materially similar” case, “[a] close factual fit
between the pre-existing case and the present one is essential.”
Cantu v. City of Dothan, Ala., 974 F.3d 1217, 1232 (11th Cir. 2020).
Importantly, “[g]eneral propositions from earlier decisions will not
do.” Id. Instead, the facts must be close enough to have “placed
the statutory or constitutional question beyond debate.” Ashcroft
v. Al-Kidd, 563 U.S. 731, 741 (2011). The key question is whether
the decision in the pre-existing case “make[s] it obvious to all
reasonable government actors” that their behavior violates federal
law. Cantu, 974 F.3d at 1232 (quotation omitted).
In Cole, the Supreme Court considered a Massachusetts law
that, as a condition of employment with the Commonwealth,
employers were required to swear that they would “uphold and
defend” the constitutions of the United States and Massachusetts
and “oppose the overthrow of the government of the United States
of America or of this Commonwealth by force, violence or by any
illegal or unconstitutional method.” 405 U.S. at 677–78. After
reviewing several of its prior “oath cases,” the Supreme Court held
that the Massachusetts oath was constitutional. Id. at 680–87.
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Specifically, the Supreme Court noted that the oath’s “use of such
general terms such as ‘uphold,’ ‘defend,’ and ‘oppose’” indicates “a
commitment not to use illegal and constitutionally unprotected
force to change the constitutional system,” but did not “impose
obligations of specific, positive action on oath takers.” Id. at 684.
Ignoring that the Supreme Court has made clear that
“clearly established law must be ‘particularized’ to the facts of the
case” and “should not be defined at a high level of generality,”
White v. Pauly, 580 U.S. 73, 79 (2017) (quotations omitted), Martin
argues that Cole established that “a state-imposed loyalty oath is
unconstitutional if it requires oath-takers to take specific actions or
refrain from constitutionally protected associational activities.”
But Cole did no such thing, and Cole is not a “close factual fit”
with Martin’s situation, in two notable respects. Cantu, 974 F.3d at
1232. First, Cole dealt with the constitutionality of a statute that
required Massachusetts employees to swear to defend the
constitution and oppose a violent overthrow of the government.
The Massachusetts statute is vastly different from a statute like
O.C.G.A. § 50-5-85, which requires certain individuals contracting
with the State of Georgia to refrain from an economic “boycott of
Israel.” Martin herself clearly recognizes this key factual
distinction—she acknowledges that, unlike the statute in Cole,
O.C.G.A. § 50-5-85 “required Martin to affirmatively certify in
writing—a specific, positive action—that she was ‘not currently
engaged in’ . . . ‘a boycott of Israel.”
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22-12827 Opinion of the Court 11
While this concession certainly undercuts her argument that
Cole is materially similar, Martin highlights the fact that O.C.G.A. §
50-5-85 imposes a “positive action” requirement on individuals
contracting with the state as a way of aligning it with what the
Supreme Court suggested might be unconstitutional in Cole. 405
U.S. at 684. But Martin glosses over the fact that the Supreme
Court’s language in Cole about a hypothetical “positive action
requirement” was not a holding and had nothing to do with the
outcome of the case. Instead, the suggestion Martin seeks to rely on
was mere dicta—and dicta cannot clearly establish law. See, e.g.,
Jones v. Cannon, 174 F.3d 1271, 1288 n.11 (1999) (“This Circuit has
held that dicta cannot clearly establish the law for qualified
immunity purposes.”); Hamilton v. Cannon, 80 F.3d 1525, 1530 (11th
Cir. 1996) (“The law cannot be established by dicta. Dicta is
particularly unhelpful in qualified immunity cases where we seek
to identify clearly established law.”); In re United States, 60 F.3d 729,
731 (11th Cir. 1996) (“Statements of dicta are not part of the law of
the case.”).
Second, the entire reason Martin seeks to rely on this dicta
is because the underlying holding in Cole is also a major factual
distinction between Cole and the present case. Namely, the
Supreme Court in Cole upheld the Massachusetts statute as
constitutional. Martin, on the other hand, is attempting to show
the exact opposite of what the Supreme Court held in Cole—that
O.C.G.A. § 50-5-85 is unconstitutional.
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Quite simply, the factual differences between Cole and
Martin’s situation are drastic. Accordingly, Martin has failed to
prove that Cole is “materially similar” enough to “make it obvious
to all reasonable government actors” in Defendants’ position that
the inclusion of the anti-boycott clause in Martin’s contract was
unconstitutional. Cantu, 974 F.3d at 1232 (quotation omitted). As
we have made clear, “[a] close factual fit between the pre-existing
case and the present one is essential.” Id. There is no close factual
fit between Cole and the facts here. As such, Martin is unable to
point to a case with materially similar facts that clearly establishes
that Defendants’ inclusion of O.C.G.A. § 50-5-85’s anti-boycott
clause in her contract was unconstitutional.
B. Broad Principle
Next, Martin argues that NAACP v. Claiborne Hardware Co.,
458 U.S. 886 (1982), presents a “broader, clearly established
principle that should control the novel facts of the situation.” We
disagree.
For a broad, clearly established principle to prevent qualified
immunity from applying, “the principle must be established with
‘obvious clarity’ by the case law so that ‘every objectively
reasonable government official facing the circumstances would
know that the official’s conduct did violate federal law when the
official acted.’” Terrell, 668 F.3d at 1256 (quoting Vinyard v. Wilson,
311 F.3d 1340, 1351 (11th Cir. 2002)). In other words, a plaintiff
must show that, “in the light of pre-existing law[,] the unlawfulness
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[of the government official’s actions] must be apparent.” Id.
(quoting Anderson, 483 U.S. at 640).
Contrary to Martin’s assertion, Defendants’ inclusion of
O.C.G.A. § 50-5-85’s mandatory anti-boycott clause in her failed
contract is not a scenario where a broad principle clearly establishes
a constitutional violation. Martin asserts that Claiborne, which
involved a consumer boycott of white-owned businesses in
Mississippi, established the broad principle that the government
cannot prohibit nonviolent, politically motivated boycotts and
argues that principle “makes clear that [O.C.G.A. § 50-5-85] violates
the First Amendment.” But although the Court held that the
“nonviolent elements of petitioners’ activities are entitled to the
protection of the First Amendment,” the conduct at issue in
Claiborne involved private actors rather than government officials,
and there was no state statute involved in the case. Claiborne, 458
U.S. at 915. Notably, the Court expressly reserved the question of
whether “a narrowly tailored statute designed to prohibit certain
forms of anticompetitive conduct or certain types of secondary
pressure may restrict protected First Amendment activity.”7 Id. at
915 n.49.
7 While we make no conclusion on the underlying constitutionality of
O.C.G.A. § 50-5-85, we also note that the Eighth Circuit recently upheld the
constitutionality of a similar anti-“boycott of Israel” statute in Arkansas. See
Ark. Times LP v. Waldrip as Tr. Of Univ. of Ark. Bd. of Trs., 37 F.4th 1386 (8th Cir.
2022), cert. denied, Ark. Times LP v. Waldrip as Tr. Of Univ. of Ark. Bd. of Trs., No.
22-379 (U.S. Feb. 21, 2023). In doing so, the Eight Circuit emphasized that the
key question in Claiborne was “whether the activities in support of the boycott,
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So, while Claiborne did find that the plaintiffs there were
engaged in a constitutionally protected activity with regard to their
boycott, it did not speak to a state’s ability to regulate anti-
competitive behavior by state employees via statutes like O.C.G.A.
§ 50-5-85. Thus, it did not craft a “broad principle” that established
with “obvious clarity” that Defendants would know that “every
objectively reasonable government official” implementing their
state’s anti-“boycott of Israel” laws, as Defendants did so here, were
violating federal law in doing so. Terrell, 668 F.3d at 1256 (quoting
Vinyard, 311 F.3d at 1351).
Accordingly, Martin is unable to point to a case that makes
“apparent” through a broad principle that Defendants’ inclusion of
§ O.C.G.A. 50-5-85’s required anti-boycott clause was
unconstitutional. Id.
both peaceful and violent, were protected.” Id. And, as the Eighth Circuit also
noted, Claiborne “stopped short of declaring that a ‘boycott’ itself—that is, the
refusal to purchase from a business—is protected by the First Amendment”;
expressly acknowledged that “‘States have broad power to regulate economic
activity’”; and held only that States cannot prohibit the “‘peaceful political
activity such as that found in the boycott in’” Claiborne. Id. at 1392 (quoting
Claiborne, 458 U.S. at 913).
While Martin argues that Waldrip was erroneously decided, she misses
the point—even if it was erroneously decided, the fact that a sister circuit
distinguished Clairborne and held that a law similar to O.C.G.A. § 50-5-85 is
constitutional reinforces the reality that Clairborne did not establish with
“obvious clarity” that the implementation of such anti-boycott clauses into
contracts is unconstitutional. See Terrell, 668 F.3d at 1256.
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C. So Obviously Unconstitutional
Finally, Martin argues that “Defendants’ conduct was so
obviously unconstitutional that no specific case is needed to
establish it.” We disagree.
Where no past case is “materially similar” and a
constitutional violation cannot be established through a “broader,
clearly established principle,” a plaintiff can still show that a
defendant is not entitled to qualified immunity by proving that the
defendant’s conduct “lies so obviously at the core of what the
[Constitution] prohibits that the unlawfulness of the conduct was
readily apparent to the [defendant], notwithstanding the lack of
fact-specific case law.” J W by and through Tammy Williams v.
Birmingham Bd. of Educ., 904 F.3d 1248, 1259–60 (11th Cir. 2018)
(quotation omitted). As we have emphasized, “[c]ases that fall
under this narrow exception are rare and don’t arise often.” King,
961 F.3d at 1146. And these situations are frequently reserved for
instances where officers exert their physical will on a plaintiff in an
“outrageous” way in an obvious violation of the Fourth
Amendment. See e.g., Fils v. City of Aventura, 647 F.3d 1272, 1291–
92 (11th Cir. 2011) (“Concrete facts are generally necessary to
provide an officer with notice of the hazy border between excessive
and acceptable force. But, where the officer’s conduct is so
outrageous that it clearly goes so far beyond these borders,
qualified immunity will not protect him even in the absence of case
law.” (quotations omitted)); Priester v. City of Riviera Beach, Fla., 208
F.3d 919, 926 (11th Cir. 2000) (“A narrow exception exists to the
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16 Opinion of the Court 22-12827
rule requiring particularized case law to establish clearly the law in
excessive force cases. When an excessive force plaintiff shows that
the official’s conduct lies so obviously at the very core of what the
Fourth Amendment prohibits that the unlawfulness of the conduct
was readily apparent to the official, notwithstanding the lack of
caselaw, the official is not entitled to the defense of qualified
immunity.” (emphasis added) (quotation omitted)).
Contrary to Martin’s assertion, Defendants’ inclusion of
O.C.G.A. § 50-5-85’s mandatory anti-boycott clause in her failed
contract is not one of those instances. In light of the fact that the
Eighth Circuit has expressly approved the constitutionality of a
similar law in Arkansas, Waldrip, 37 F.4th at 1392, there is no
reasonable argument that the inclusion of the anti-boycott clause
in Martin’s contract “lies so obviously at the core of what the
[Constitution] prohibits that the unlawfulness of the conduct was
readily apparent” to Defendants. J W by and through Tammy
Williams, 904 F.3d at 1260. While another state’s law and another
circuit’s precedent certainly cannot clearly establish law in this
circuit, the existence of this law and Waldrip demonstrates the
ongoing debate about the constitutionality of anti-boycott clauses
nationwide. Nor is this an excessive force case where an officer’s
“outrageous” behavior clearly implicates the Fourth Amendment.
Instead, Martin is upset that a contractual obligation was included
in a contract she wished to sign for an event that ultimately did not
occur. This case is not a “rare” “obvious clarity” case where a
plaintiff can show a constitutional violation was clearly established
without relying on any caselaw. See King, 961 F.3d at 1146.
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III. Conclusion
Martin has failed to show that it was clearly established that
Defendants’ inclusion of the anti-boycott clause in Martin’s
contract, in adherence of O.C.G.A. § 50-5-85, was a constitutional
violation. As such, we affirm the district court’s grant of
Defendants’ motion to dismiss on the ground of qualified
immunity.8
AFFIRMED.
8 As a last-ditch effort, Martin argues that we should reconsider and overrule
the doctrine of qualified immunity in the First Amendment context. We reject
this argument, as we are bound by Supreme Court precedent “until it is
overruled, receded from, or in some other way altered by the Supreme
Court.” United States v. Henco Holding Corp., 985 F.3d 1290, 1302 (11th Cir.
2021).
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