[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10332

____________________

REVEREND STEPHEN JARRARD, 

Plaintiff-Appellant,

OLLIE MORRIS, 

Plaintiff,

versus

SHERIFF OF POLK COUNTY,

CHIEF DEPUTY AL SHARP, 

Defendants-Appellees,

DEPUTY DUSTIN STROP,

Individually and in their official capacities,

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Defendant.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 4:20-cv-00002-MLB

____________________

Before ROSENBAUM, NEWSOM, and TJOFLAT, Circuit Judges.

NEWSOM, Circuit Judge:

Stephen Jarrard is a member of the Church of Christ who 

successfully applied to participate in a county jail’s volunteer ministry program, was later dismissed from that program, and still 

later unsuccessfully sought to be readmitted. He sued, claiming 

that his dismissal and exclusion violated his free-speech rights. The 

district court rejected Jarrard’s First Amendment claims on summary judgment. We must decide (1) whether Jarrard’s participation in the ministry program involved constitutionally protected 

speech, (2) whether two of the jail’s policies for evaluating volunteer applications impermissibly vested decisionmakers with unbridled discretion, and (3) whether qualified immunity protects two 

jail officials from damages liability.

Because we hold that the two jail officials violated Jarrard’s 

clearly established First Amendment rights, we reverse the district 

court’s decision granting summary judgment and remand the case 

to that court for further proceedings on Jarrard’s claims.

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I

A

This case’s factual and procedural history is long and winding but, as it turns out, important. Lots of policies and amended 

policies, complaints and amended complaints. Bear with us.

For nearly two decades, Stephen Jarrard served as a volunteer minister at various jails and prisons around Georgia.1 In that 

role, Jarrard has explained, he could “shar[e] . . . God’s word and 

the Gospel” with inmates. In general, he would teach a threemonth survey about an assortment of biblical topics, such as faith, 

repentance, and baptism. Typically, during the first few minutes of 

each meeting, Jarrard would field questions from inmates about 

the previous week’s lesson or issues they had been exploring. Afterwards, Jarrard would lead discussions of pertinent Bible verses, 

answering inmates’ questions along the way. Importantly here, Jarrard thought that he needed to “get as many folks baptized into 

Christ . . . before Jesus returns” as he could. He believes that baptism by immersion is necessary to salvation and that, without it, a 

person will be condemned to Hell. 

Jarrard began volunteering at the Polk County Jail in 2012. 

At that time, all an interested person had to do to join the volunteer 

ministry program was to go to the Jail and “ask and put [his] name 

1 Because the district court granted summary judgment against Jarrard, we 

recount the facts and all inferences in the light most favorable to him. Sutton 

v. Wal-Mart Stores East, LP, 64 F.4th 1166, 1168 (11th Cir. 2023).

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on [a] list.” Although the list had as many as 140 people on it at 

one point, far fewer actually participated; the record indicates, in 

fact, that only about 10 volunteers ever showed up. To the best of 

Jarrard’s recollection, the Jail approved his initial application in a 

matter of minutes. 

Jarrard encountered difficulties pretty much from the getgo. One day several months into his tenure, he was paired with a 

Baptist minister who objected to his teachings about baptism. That 

minister asked if Jarrard was suggesting that one couldn’t be saved 

without baptism, gave the inmates his own views on the subject, 

and then went to the cell door and asked the guards to let him out. 

The following week, the leader of the volunteer ministry team confronted Jarrard about the incident and told him that he could continue in the program only if he stopped teaching about baptism. 

When Jarrard refused, he was kicked out. 

A few months later, Jarrard sought a meeting with Johnny 

Moats, who had recently been elected Polk County Sheriff. Jarrard 

and Moats discussed the incident involving the Baptist minister as 

well as their own respective religious beliefs. Moats disagreed with 

Jarrard’s views on baptism, and the meeting concluded with Moats 

denying Jarrard’s request to re-enter the volunteer ministry program, though Jarrard couldn’t recall Moats giving a reason. 

About two years later, Moats allowed Jarrard to return to the 

program, and Jarrard participated for about a year with no issues. 

During that time, Jarrard performed two baptisms, seemingly without incident. 

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B

At the end of 2015, the Sheriff’s Office temporarily suspended the ministry program. Then, in February 2016, Moats and 

Al Sharp, the facility’s Chief Jailer, implemented a formal policy to 

govern the program and religious services at the Jail. The policy 

was codified in Jail Order Number 7.07, but for simplicity’s sake—

and because, as will become clear, the Jail promulgated so many 

such orders—we’ll just call it “the First Policy.” As relevant here, 

the First Policy stated that “[r]eligious rituals such as baptism and 

wedding ceremonies will not be conducted for inmates.” First Policy 7.07.17. According to Jarrard, Sharp told inmates that the Jail 

wouldn’t permit baptisms because (1) baptism wasn’t “necessary”

(presumably, to their salvation), and (2) they could therefore wait 

to get baptized after their release.2 In conjunction with the First 

Policy’s issuance, Sharp also told Jarrard that he had to stop teaching about baptism if he wanted to remain in the program. 

Jarrard attended a training about the First Policy and, in January 2017, he applied to resume his ministry. The Jail denied the 

application without explanation, although Moats later asserted that 

Jarrard was barred “not because of his insistence on baptizing inmates, but because of his disruptive behavior toward other members of the jail ministry program [who] did not share his radical 

2 Moats confirmed this rationale in a letter to Jarrard’s counsel at the start of 

this litigation: “Our stance is since the Polk County Jail is a short term detention center, baptism can wait until after release since it is not a requirement 

for salvation.” 

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religious views” and because Moats and his staff believed that Jarrard had “some mental health issues.” 

After his application was denied, Jarrard began a regular oneman vigil outside the Jail to protest his exclusion. On a few occasions, Moats and Sharp stopped to talk with Jarrard. Jarrard said 

that the conversations were cordial but always revolved around 

baptism and the officials’ theological disagreement with Jarrard’s 

views on the subject. 

C

Jarrard sued Moats and Sharp in federal court, seeking declaratory, injunctive, and monetary relief.3 As relevant here, he alleged (1) that the Jail officials had retaliated against him for exercising his First Amendment rights by excluding him from the volunteer ministry program and (2) that the Jail’s baptism ban itself violated the First Amendment. 

Not long after Jarrard filed his complaint, Moats and Sharp 

implemented Jail Policy 5.23—the “Second Policy.” The Second 

Policy provided that “[c]lergymen and religious advisors wishing to 

3 Deputy Dustin Strop was also a named defendant in the original complaint. 

As noted by the district court, defendant Strop’s last name may actually be 

“Stroup.” We’ll follow the district court’s lead and use the spelling in the case 

caption. The district court granted summary judgment to Strop on all counts 

against him, and Jarrard hasn’t appealed that holding. Ollie Morris, a former 

inmate whose request to be baptized was denied, was originally a plaintiff 

alongside Jarrard, but he settled his claims against Moats and Sharp and is no 

longer in the case. Accordingly, we won’t include any discussion of those two 

parties in the remainder of the opinion.

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hold services or conduct programs in the jail” had to (1) “make 

written application to the Polk County Sheriff’s Office with supporting documentation,” (2) “attend a training session,” and (3) “be 

approved by the Jail Administrator.” Second Policy 5.23.II.F. The 

Second Policy didn’t explain what an “application” should say or 

what “documentation” should accompany it, nor did it identify 

what criteria would inform the administrator’s “approv[al]” determination or a timeline for that decision. Jarrard submitted an application under the Second Policy, but it was denied on the ground 

that he had “a history of being involved in contentious behavior 

and conflict” at other jails that he “did not fully disclose . . . in his 

application.”4

Jarrard amended his complaint to address the denial of his 

application and, shortly thereafter, Moats and Sharp promulgated 

yet another policy—in particular, a revised Order Number 7.07. 

This “Third Policy” reiterated the ban on baptism and other religious rituals and amended the clergy-application requirements to 

include a “volunteer application” and a “background check[].” 

Third Policy 7.07.16, 7.07.18. But like its predecessor, the Third 

Policy didn’t specify any criteria by which administrators would 

evaluate applications. Jarrard applied to be a volunteer under the 

Third Policy, but the Jail denied him again—this time on the 

4 Jarrard had noted in his application that he had been terminated or resigned 

from previous positions for “teaching inmates the purpose of baptism” and for 

“friction over an inmate baptism.” 

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grounds that he was “not compliant with 501(c)3 standards”5 and 

had been “dismissed from Floyd County Sheriff’s Office and Cobb 

County Sheriff’s Office Jail Ministry Programs.” 

Jarrard amended his complaint yet again—in relevant part,

to address the Third Policy and the Jail’s denial of his most recent 

application. In this second amended complaint—which serves as 

the operative complaint on appeal—Jarrard (1) reiterated his retaliation claim and separately (2) alleged that the Second and Third 

Policies impermissibly gave Jail officials unbridled discretion in 

evaluating applications. Jarrard sought minimal and/or nominal 

damages and an injunction on both claims. 

Following discovery, the parties filed cross-motions for summary judgment. For his part, Jarrard sought partial summary judgment and a permanent injunction on his claim that the Second and 

Third Policies vested Moats and Sharp with too much discretion. 

Moats and Sharp sought summary judgment on all claims. 

Not long after the summary-judgment motions were filed, 

Moats and Sharp revised Jail Order 7.07 again—the “Fourth Policy.”

For the first time, the Fourth Policy specified reasons that an applicant’s request to join the volunteer ministry program could be denied. They “includ[ed] but [were] not limited to” the following—

“[f ]ailure to completely fill out the application, falsifying the application, failure to attend training, background concerns, failure to 

5 Because 26 U.S.C. § 501(c)(3) applies to “organizations,” not individuals, we’ll 

assume that the Jail meant that Jarrard’s church wasn’t compliant.

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supply appropriate credentials . . . or any other characteristic that 

raises a reasonable probability that the applicant will be unsuitable 

for the volunteer ministry program.” Fourth Policy 7.07.17. The 

Fourth Policy further indicated that applications would be reviewed on a first-come, first-served basis and that an applicant 

would receive a response within 30 days. Id. 7.07.18. 

Given the revision, Jarrard amended his complaint to withdraw his request for injunctive relief pertaining to the Second and 

Third Policies. He didn’t withdraw or otherwise modify either (1) 

his retaliation claim or (2) his damages claims pertaining to the Second and Third Policies.6 

D

The district court granted summary judgment to Moats and 

Sharp across the board.

The court rejected Jarrard’s First Amendment retaliation 

claim on the ground that he couldn’t show that he had engaged in 

“constitutionally protected” speech. In so holding, the court first 

held that in his role as a volunteer minister, Jarrard was effectively 

a “government employee”—and, accordingly, that his retaliation 

claim was subject to the balancing test articulated in Pickering v. 

Board of Education of Township High School District 205, 391 U.S. 563

6 Although none of Jarrard’s successive complaints expressly invoked 42 U.S.C. 

§ 1983, the district court seems to have treated his claims for monetary damages as grounded in that statute, and Moats and Sharp haven’t challenged that 

premise on appeal.

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(1968), and its progeny.7 Applying that test, the court concluded (1) 

that Jarrard’s ministry comprised “employee speech . . . not protected by the First Amendment,” and (2) that even if his speech 

were that of a private citizen and not a government employee, it 

didn’t address a “matter of public concern.” For both reasons, the 

court held, Jarrard’s claim failed the Pickeringtest, meaning that his 

speech was not “constitutionally protected.” The court further 

concluded that even if the First Amendment protected Jarrard’s 

speech, the law was insufficiently “clearly established” to override 

Moats and Sharp’s assertion of qualified immunity. 

With respect to Jarrard’s challenges to the Second and Third 

Policies, the court acknowledged that they “arguably violated” Jarrard’s First Amendment rights by giving “unbridled discretion” to 

those authorized to consider volunteer ministers’ applications. 

Even so, the district court granted Moats and Sharp summary judgment on the ground that the law applicable to those challenges 

wasn’t “clearly established,” and that Moats and Sharp were thus 

entitled to qualified immunity.8 

7 Pickering’s primary progeny includes Connick v. Myers, 461 U.S. 138 (1983),

and Garcetti v. Ceballos, 547 U.S. 410 (2006). For ease of reference, we will refer 

to the analytical framework that these cases created and applied as the “Pickering” test, analysis, etc.

8 The district court opined in a footnote that Jarrard had abandoned his request 

for equitable relief against Moats and Sharp in their official capacities, either

by withdrawing them or by not adequately reiterating them in the summaryjudgment briefing. Jarrard v. Moats, No. 4:20-CV-2-MLB, 2022 WL 18586257, 

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This is Jarrard’s appeal.9

II

On appeal, Jarrard contends that the district court erred in 

granting summary judgment against him on both (1) his claim that 

Moats and Sharp retaliated against him for his constitutionally protected speech and (2) his claim that the Second and Third Policies 

impermissibly granted Jail administrators too much discretion in 

evaluating applicants’ requests to participate in the volunteer ministry program. We will address Jarrard’s arguments in turn and will 

then separately evaluate the district court’s determination that 

Moats and Sharp enjoy qualified immunity from suit.10

at *1 n.2 (N.D. Ga. Sept. 27, 2022). We disagree. As already explained, Jarrard 

withdrew his request for injunctive relief with respect to his unbridled-discretion 

claim after Moats and Sharp instituted the Fourth Policy. See supra at 9. But 

he never withdrew or otherwise modified his retaliation claim, with respect to 

which he has sought equitable relief from the start, and he vigorously litigated 

that claim at summary judgment. He didn’t need to repeat expressly in his 

briefing that he wanted injunctive relief to keep that request alive.

9 We review a district court’s summary-judgment decision de novo, “drawing 

all inferences in the light most favorable to the non-moving party.” Sutton, 64 

F.4th at 1168 (quotation marks and citation omitted). Summary judgment is 

appropriate only “where there are no genuine issues of material fact,” id., and 

where “the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a).

10 At the outset, we reject Moats and Sharp’s contention that the Eleventh 

Amendment bars even injunctive relief against them in their official capacities. 

The nub of their argument seems to be that although Ex parte Young, 209 U.S. 

123 (1908), generally permits a federal court to order state-government 

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A

To make out a First Amendment retaliation claim, Jarrard 

has to show that “(1) [his] speech was constitutionally protected; 

(2) [he] suffered adverse conduct that would likely deter a person 

of ordinary firmness from engaging in such speech; and (3) there 

was a causal relationship between the adverse conduct and the protected speech.” Brannon v. Finkelstein, 754 F.3d 1269, 1274 (11th Cir. 

2014) (quotation marks and citation omitted). The district court 

here granted summary judgment to Moats and Sharp because it 

held that Jarrard’s claim failed the first, “constitutionally protected” 

requirement. Importantly for our purposes, in holding that 

officials to comply with federal law, it doesn’t authorize the court to compel a 

state official to exercise his “discretion” in a particular manner—here, they say, 

by having to “deal with a given volunteer on a recurrent basis.” Br. for Appellees at 39. But Ex parte Young itself clarified that “[a]n injunction to prevent [a 

state officer] from doing that which he has no legal right to do is not an interference with [his] discretion.” 209 U.S. at 159. Indeed, in the employment 

context—which, while not precisely applicable here for reasons we’ll explain 

in text, is analogous—we have held that reinstatement is a permissible remedy 

against which the Eleventh Amendment poses no obstacle. See Lane v. Cent.

Ala. Cmty. Coll., 772 F.3d 1349, 1351 (11th Cir. 2014). That is so because even 

an employee who “could have been discharged for any reason or for no reason 

at all, . . . may nonetheless be entitled to reinstatement if [he] was discharged 

for exercising [his] constitutional right to freedom of expression.” Rankin v. 

McPherson, 483 U.S. 378, 383–84 (1987).

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Jarrard’s speech wasn’t constitutionally protected, the court applied the Pickeringtest and concluded that Jarrard’s claim failed it.11

We conclude, to the contrary, that on the particular facts of 

this case, Pickering doesn’t provide the proper framework for determining whether Jarrard’s speech was “constitutionally protected” 

and that, instead, Jarrard’s claim should be evaluated under the “forum analysis” that traditionally governs speech-related claims. We 

further conclude that there is a genuine dispute of material fact 

about whether Moats and Sharp unconstitutionally barred Jarrard 

from the volunteer ministry program because they disagreed with 

his viewpoint concerning baptism. Accordingly, we will reverse the 

district court’s determination that Jarrard’s retaliation claim failed 

the threshold “constitutionally protected” prong and remand for 

that court to evaluate the adverse-conduct and causal-relationship 

prongs in the first instance.

1

In general, speech restrictions in government-owned spaces 

are subject to what courts have come to call a “forum analysis.” In 

Perry Education Ass’n v. Perry Local Educators’ Ass’n, the Supreme 

Court specified three types of fora—in particular, what we’ve come 

to call “traditional public,” “designated public,” and “non-public”—

and supplied standards governing what sorts of restrictions the 

11 Under Pickering, “for a government employee’s speech to have First Amendment protection, the employee must have (1) spoken as a citizen and (2) addressed matters of public concern.” Boyce v. Andrew, 510 F.3d 1333, 1341 (11th 

Cir. 2007).

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government may constitutionally impose in each. See 460 U.S. 37, 

45–49 (1983). A little more than a decade later, the Court added a 

fourth category: the “limited public forum.” Rosenberger v. Rector & 

Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). We needn’t get into 

the details just yet; it’s enough for now to say that forum analysis is 

the default means of evaluating speech restrictions.

Pickering and its progeny operate as an exception of sorts to 

the usual forum analysis in cases involving government employees. 

These employee-speech cases are subject to a different analysis because, as the Pickering Court explained, “the State has interests as 

an employer in regulating the speech of its employees that differ 

significantly from those it possesses in connection with regulation 

of the speech of the citizenry in general.” 391 U.S. at 568. In particular, the Court said, when the state is acting as an employer—as 

opposed to a regulator more generally—it has a special interest in 

“promoting the efficiency of the public services it performs 

through its employees.” Id.

Jarrard, of course, wasn’t technically a Polk County employee—he wasn’t, that is, on the payroll. Even so, he doesn’t deny, 

as a general matter, that Pickering may be validly applied even to 

some individuals who aren’t traditional government employees. 

Accordingly, it’s not enough to say, as the district court did, that

“courts have extended the application of the Pickering analysis to 

cover more than just traditional public employees.” The real and 

more granular question is whether, given the particulars of Polk 

County’s volunteer ministry program and Jarrard’s participation in 

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it, he was a de facto employee for Pickering purposes. For the following reasons, we conclude that he was not.

First, and most importantly, Pickering’s logic doesn’t comfortably apply to volunteer ministers like Jarrard. As just explained,

the rationale that underlies Pickering’s rule giving the government 

a freer hand in regulating the speech of its employees than that of 

ordinary citizens is that it has an important interest in ensuring the 

“efficien[t]” delivery of “public services.” Pickering, 391 U.S. at 568; 

see also, e.g., Connick v. Myers, 461 U.S. 138, 150 (1983) (“The Pickering

balance requires full consideration of the government’s interest in 

the effective and efficient fulfillment of its responsibilities to the 

public.”); Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (“Government 

employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there 

would be little chance for the efficient provision of public services.”). That rationale explains the circumstances in which the Supreme Court and this Court have extended Pickering beyond traditional employment relationships. In applying the Pickering analysis 

to government contractors, for instance, the Supreme Court observed that “[t]he government needs to be free to terminate both 

employees and contractors for poor performance, to improve the 

efficiency, efficacy, and responsiveness of service to the public.” Bd.

of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 674 (1996). So too, in extending Pickering to an unpaid political appointee to a public advisory board, we emphasized the government’s interest “in 

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promoting the efficiency of the public services it performs.” 

McKinley v. Kaplan, 262 F.3d 1146, 1149 & n.5 (11th Cir. 2001).12

This delivery-of-government-services rationale doesn’t readily apply to Jarrard’s participation in a volunteer prison ministry. 

Perhaps most importantly, providing religious instruction and pastoral care to inmates—quite unlike, say, collecting and removing 

trash, or, for that matter, perhaps even providing chaplains to servicemembers—is not a public service that the government has traditionally provided. Nor could it be, for that matter, without risking a violation of the Establishment Clause, which “mandates governmental neutrality between religion and religion, and between 

religion and nonreligion.” McCreary Cnty. v. ACLU of Ky., 545 U.S. 

844, 860 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104 

12 In support of its decision to apply Pickering here, the district court pointed 

to our unpublished decision in Rodin v. City of Coral Springs, 229 F. App’x 849 

(11th Cir. 2007). There, without analyzing the issue, we applied the Pickering

framework to volunteer firefighters. Rodin doesn’t move the needle here for 

two reasons. First, and most obviously, it’s unpublished, and thus non-precedential. Second, and in any event, applying the Pickering analysis there made 

some sense, in that fire protection is a service that has traditionally, even if not 

exclusively, been provided by the government. See, e.g., Fla Bros., Inc. v. 

Brooks, 436 U.S. 149, 163 (1978) (“[T]here are a number of state and municipal 

functions . . . which have been administered with a greater degree of exclusivity by States and municipalities than has the function of so-called ‘dispute resolution,” including “such functions as education, fire and police protection, 

and tax collection.”). And indeed, the underlying facts of Rodin made our assumption even more reasonable, in that the municipality there was in the process of converting its volunteer fire department into a “semi-professional one” 

comprising both volunteer and paid firefighters. 229 F. App’x at 850.

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(1968)). Moreover, and relatedly, in his position as a volunteer minister Jarrard didn’t (and again, probably couldn’t lawfully) advise 

Moats and Sharp or represent their interests with prisoners.13

Second, even setting aside Pickering’s logical underpinnings, 

Jarrard’s participation in the ministry program doesn’t bear any of 

the traditional hallmarks of employment. For starters, although by 

no means dispositive, it’s relevant that Jarrard wasn’t paid (at least 

by the government) for the time he spent teaching and counseling 

inmates. Moreover, recall that all Jarrard initially had to do to join 

the ministry program in 2012 was put his name on a list; to the best 

of his recollection, the Jail approved his so-called “application”

within minutes. And finally, quite unlike the typical job, the ministry program had no mandatory attendance policy—recall that no 

more than 10 of the 140-some-odd people on the sign-up list ever 

showed up. In no practical respect did Jarrard’s participation in the 

ministry program resemble a traditional government “job.”

In reaching its contrary conclusion, the district court emphasized that under the Second, Third, and Fourth Policies, applicants 

like Jarrard signed the same confidentiality agreements that employees signed, executed waivers of liability, and underwent

13 The out-of-circuit cases regarding volunteer government chaplains that the 

district court and Moats and Sharp cite don’t change our thinking. While it’s 

true that both Mustapha v. Monken, 2013 WL 3224440 (N.D. Ill. June 25, 2013),

and Mayfield v. City of Oakland, 2007 WL 2261555 (N.D. Cal. Aug. 6, 2007),

applied Pickering to volunteer government chaplains, neither case assessed 

whether that was the proper analytical framework but, rather, seemed to take 

it as a given.

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criminal history checks. Especially when weighed against the 

countervailing considerations that we’ve discussed, we aren’t persuaded that these requirements made Jarrard a de facto employee 

for Pickering purposes. For one thing, the government imposes similar conditions on family members and friends who visit inmates, 

but of course that doesn’t make them employees. And for another, 

we can’t ignore the fact that Jarrard didn’t have to do any of these 

things when he initially signed up to be a volunteer minister in 

2012. We don’t think there is any firm basis for concluding that 

although Jarrard wasn’t initially a de facto employee, he later became one.

* * *

Because we conclude that neither Pickering’s theoretical underpinnings nor the practical realities of Jarrard’s situation support 

the application of the Pickering analysis, we hold that the district 

court erred in evaluating Jarrard’s claim under that framework. 

The proper approach, we conclude, is the usual forum analysis, to 

which we now turn our attention.

2

As already explained, the Supreme Court has specified four 

different types of fora to govern analysis of speech restrictions—

public, designated public, limited public, and non-public. The parties here vigorously dispute whether the Polk County Jail’s volunteer ministry program was a limited public forum, see Br. of Appellant at 18–19, or a non-public forum, see Br. of Appellees at 11, 29–

30. We needn’t resolve their dispute, because we find that a rule 

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common to all forums resolves the question whether, for purposes 

of Jarrard’s First Amendment retaliation claim, his speech was 

“constitutionally protected”—namely, that any regulation of 

speech based on the speaker’s viewpoint is presumptively invalid 

and must, at the very least, satisfy strict scrutiny, i.e., it “must be the 

least restrictive means of achieving a compelling state interest.” See

McCullen v. Coakley, 573 U.S. 464, 478 (2014) (traditional public); see 

also Perry, 460 U.S. at 46 (designated public); Rosenberger, 515 U.S. at

828–29 (limited public); Perry, 460 U.S. at 46 (observing that the 

government can regulate speech in a non-public forum “as long as 

the regulation . . . is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s 

view”).14

So, did Moats and Sharp engage in viewpoint discrimination 

when they denied Jarrard’s application? They insist that they didn’t, 

for two reasons, neither of which we find persuasive. First, they

assert that, as a matter of fact, they didn’t deny Jarrard’s application 

because of his views on baptism, but rather because he had been 

(and they feared would be again) disruptive. For instance, in 

14 At times, the Supreme Court seems to have suggested that viewpoint-discriminatory speech restrictions are per se invalid. See Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984) (“[T]he First Amendment 

forbids the government to regulate speech in ways that favor some viewpoints 

or ideas at the expense of others.”). At others, though, it has said that they are 

subject only (so to speak) to strict scrutiny. See McCullen, 573 U.S. at 478 (stating that if a state law discriminates on the basis of viewpoint, it must satisfy 

strict scrutiny). For present purposes, we’ll assume that strict scrutiny applies.

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20 Opinion of the Court 23-10332

denying Jarrard’s application under the Second Policy, it noted that 

Jarrard had “a history of being involved in contentious behavior 

and conflict” and that he “did not fully disclose that history in his 

application.” And its subsequent denial of Jarrard’s application under the Third Policy mentioned his previous dismissal from two 

other jails’ ministry programs. But given the procedural posture—

recall that the district court granted Moats and Sharp summary 

judgment over Jarrard’s opposition—we must construe the facts 

and make all reasonable inferences in Jarrard’s favor. There is ample evidence that, if credited, indicates that Moats and Sharp disagreed with Jarrard’s views on baptism, and it is reasonable to infer 

that they denied his applications on the basis of that disagreement. 

For instance, Jarrard’s first meeting with Moats involved a discussion of their competing perspectives about baptism—and at the 

conclusion of that meeting Moats denied Jarrard request to rejoin

the volunteer ministry program. So too, during the period when 

Jarrard was holding regular vigils outside the Jail to protest his exclusion from the program, Moats and Sharp repeatedly stopped to 

discuss baptism with him. And it seems that (at the very least) 

Moats’s and Sharp’s views about baptism affected other policy decisions at the Jail—including the decision to ban baptisms altogether—so it’s reasonable to infer that those views affected their 

evaluation of volunteer applications as well. At most, Moats and 

Sharp’s assertion that they had a valid, non-viewpoint-discriminatory motive creates factual dispute—which, of course, counsels 

against summary judgment, not in its favor.

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23-10332 Opinion of the Court 21

Second, and separately, Moats and Sharp contend that even 

if their denial of Jarrard’s application was due to his beliefs about 

baptism, their denial of his application would constitute “an appropriate content-based restriction of messages that significantly agitate 

inmates,” as opposed to a viewpoint-based restriction. Br. of Appellees at 32. In support of their position, Moats and Sharp assert 

that they would also take issue with the following teachings: “(1) 

‘persons who are baptized through full immersion will go to Hell’; 

(2) ‘persons with a tattoo(s) will go to Hell’; or (3) ‘persons who 

take medications will go to Hell.’” Id. at 33. Moats and Sharp’s 

examples, though, only undermine their position, inasmuch as 

they indicate that while they will permit discussions that don’t 

mention Hell, or even of things that won’t land one in Hell, they 

won’t tolerate discussion of things that will result in damnation. 

That, it seems to us, is viewpoint discrimination, pure and simple. 

At least for summary-judgment purposes, therefore, we conclude that Moats and Sharp engaged in viewpoint discrimination 

based on their disagreement with Jarrard’s beliefs about baptism. 

We further conclude that their disapproval of his volunteer ministry application can’t survive strict scrutiny. As already explained,

Moats and Sharp assert that they denied Jarrard’s applications for 

fear that his participation in the volunteer ministry program would 

“(1) tend to undercut inmate well-being and (2) unreasonably create problems for jail administrators.” Even if we were to indulge

those assertions despite the contrary evidence that Jarrard has put 

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22 Opinion of the Court 23-10332

forward,15 and even assuming that they constitute compelling governmental interests, denying Jarrard’s application was not the least 

restrictive means of achieving those ends. As just one example, the 

Jail could have posted notices stating that Jarrard would be addressing a potentially contentious topic and let the inmates decide 

whether they wanted to attend; indeed, the Second Policy had contained a similar provision explaining that a deputy would escort 

from religious services any inmate not wishing to participate. Second Policy, 5.23.II.H. So too, they could have allowed other volunteer ministers to opt out of working with Jarrard so as to reduce 

the risk of contentious interactions. And to the extent that they 

were worried about security issues related to the performance of

baptisms, they could have instituted precautions to minimize them. 

They could, for instance, have limited attendance at an inmate’s 

baptism or required an inmate being baptized to be shackled 

throughout the process to reduce risk of escape. There is no indication that Moats and Sharp attempted to take any such (or other 

similar) steps.

* * *

“If there is any fixed star in our constitutional constellation, 

it is that no official, high or petty, can prescribe what shall be orthodox in . . . religion.” West Virginia Bd. of Educ. v. Barnette, 319 U.S. 

624, 642 (1943). At least on the record as we must construe it, it 

seems that is what Moats and Sharp tried to do here by excluding 

15 We note that Jarrard performed two baptisms during his time at the Jail, and 

there is no indication that either caused any disturbance.

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23-10332 Opinion of the Court 23

Jarrard from the ministry program. Because that exclusion violated Jarrard’s “constitutionally protected” speech, we hold that Jarrard has met his burden under the first prong of the test that governs his First Amendment retaliation claim. Accordingly, we reverse the district court’s contrary ruling and remand to allow that 

court to consider the “adverse conduct” and “causal relationship” 

prongs in the first instance. See Brannon, 754 F.3d at 1274.

B

Jarrard separately argues that the Jail’s Second and Third Policies violated the First Amendment because they provided no 

meaningful standards for the evaluation of volunteer ministry applications and thus impermissibly vested Jail administrators with 

“unbridled discretion.” Although the district court found that the 

policies “arguably violated” the First Amendment, it nonetheless 

granted summary judgment to Moats and Sharp on the ground 

that the relevant law was insufficiently “clearly established” to overcome their qualified-immunity defense. For the reasons explained 

below, we hold that the Second and Third Policies did in fact violate 

the First Amendment. We’ll address qualified immunity separately 

afterwards.

Under the First Amendment, a party can challenge a licensing rule on its face on the ground that it “vests unbridled discretion 

in a government official over whether to permit or deny expressive 

activity.” Tracy v. Florida Atl. Univ. Bd. of Trs., 980 F.3d 799, 809 (11th 

Cir. 2020) (quotation marks and citation omitted); see also City of 

Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755–56 (1988). This 

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24 Opinion of the Court 23-10332

“unbridled discretion” doctrine is grounded in the notion that 

“[e]xcessive discretion . . . is constitutionally suspect because it creates the opportunity for undetectable censorship and signals a lack 

of narrow tailoring.” Burk v. Augusta-Richmond Cnty., 365 F.3d 1247, 

1256 (11th Cir. 2004). To avoid those risks—and invalidation of its 

policy—a government entity must promulgate “narrowly drawn, 

reasonable, and definite standards to guide the official[decisionmaker’s] decision.” Tracy, 980 F.3d at 809 (quotation marks and 

citation omitted). So, for example, we held in Burk that a permit 

policy unlawfully granted municipal decisionmakers unbridled discretion because it required an individual seeking to hold a public 

demonstration to execute an indemnification agreement “in a form 

satisfactory to the [city’s] attorney,” but without in any way explaining the term “satisfactory.” 365 F.3d at 1256; see also Young Israel of 

Tampa, Inc. v. Hillsborough Area Reg’l Transit Auth., 89 F.4th 1337, 

1346–47 (11th Cir. 2024) (assuming without deciding that city’s bus 

system’s advertising space was a non-public forum and then holding that the city’s advertising policy was unreasonable because it 

“fail[ed] to define key terms, lack[ed] any official guidance, and 

vest[ed] too much discretion in those charged with its application”). 

By contrast, in Bloedorn v. Grube, we held that a university policy 

regarding outside speakers’ access and conduct adequately channeled administrators’ decisionmaking because it limited—among 

other things—their discretion in determining the location and 

length of a speaker’s presentation. 631 F.3d 1218, 1236–38 (11th 

Cir. 2011). In addition to these sorts of substantive standards, a 

government’s policy should also include a “time limit within which 

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23-10332 Opinion of the Court 25

[an official] must make a decision on a permit application.” Barrett

v. Walker Cnty. Sch. Dist., 872 F.3d 1209, 1222 (11th Cir. 2017).

“Our precedents recognize that the unbridled-discretion 

doctrine applies to prior restraints.” Id. And although the term 

“prior restraint” calls to mind government officials censoring newspapers and magazines, see, e.g., Near v. Minnesota, 283 U.S. 697 

(1931), in fact it applies more broadly. We have explained the term 

in these words: “A prior restraint on expression exists when the 

government can deny access to a forum for expression before the 

expression occurs.” Barrett, 872 F.3d at 1223 (quotation marks and 

citation omitted). In Barrett, for instance, we considered a policy 

that regulated whether and how citizens could obtain permission 

to speak during public-comment sessions of board-of-education 

meetings. We held that the policy, “although not formally a licensing or permitting scheme, [was] a prior restraint . . . because it prevent[ed] members of the public from speaking . . . unless they 

compl[ied] with the Policy’s requirements.” Id.

For similar reasons, the Jail’s Second and Third Policies are 

subject to the unbridled-discretion doctrine. Both policies operated as prior restraints because they restricted would-be volunteer 

ministers from engaging in expression without government approval. Both needed, therefore, to entail “narrowly drawn, reasonable, and definite standards to guide” administrators’ 

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26 Opinion of the Court 23-10332

decisionmaking. Tracy, 980 F.3d at 809 (quotation marks and citation omitted). They did not.16 

The Second Policy’s language pertaining to would-be-volunteer applications read as follows:

Clergymen and religious advisors wishing to hold services or conduct programs in the jail must make written application to the Polk County Sheriff’s Office 

with supporting documentation, attend a training 

session and then be approved by the Jail Administrator.

Second Policy 5.23.II.F. The Third Policy stated:

The Polk County Sheriff’s Office encourages clergy 

from the community to minister to the inmates. 

Clergymen and religious advisors wishing to hold services or conduct programs in the jail must submit a 

volunteer application. Members of the clergy allowed within the inner security perimeter or allowed 

contact visitation, must complete background 

checks, including the jail ministry program.

Third Policy 7.07.16. Neither policy even attempts to provide the 

substantive standards resembling those that we found sufficient in 

Bloedorn. Nor do they include a “time limit within which [an 

16 To be clear, it is of no particular moment that the Second and Third Policies 

weren’t technically permitting schemes. See Br. of Appellees at 31. As Barrett

makes clear, what matters is not a policy’s formal designation or title, but rather its practical operation.

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23-10332 Opinion of the Court 27

official] must make a decision on a permit application.” Barrett, 872 

F.3d at 1222.

Moats and Sharp respond that the Second and Third Policies 

imposed sufficiently rigorous approval standards because “the 

Sheriff’s Office used a detailed application form that provide[d] specific criteria for jail ministry volunteers.” Br. of Appellees at 31. 

For example, under the Second Policy applicants had to provide 

contact information for their place of worship, a list of volunteerrelated training and coursework in which they had participated, 

their volunteering history, and their general ministry plan. But the 

unbridled-discretion doctrine requires that a policy outline guidance for decisionmakers, not applicants. It may well be that an aspiring volunteer minister had to dot Is and cross Ts on his application, 

but nothing in either policy constrained the Jail administrators’ decisions in reviewing his application. An applicant could check all 

the necessary boxes and yet, for reasons unknown, still have his application rejected. And that’s a problem.17

17 To be sure, we noted in Bloedorn that in an unbridled-discretion challenge, 

“[w]e consider the actual policies and practices employed by the [institution], 

not just the policy’s text.” 631 F.3d at 1237 (citing Forsyth Cnty. v. Nationalist 

Movement, 505 U.S. 123, 131 (1992) (explaining, in evaluating an unbridled-discretion claim, that “we must consider the [government’s] authoritative constructions of the ordinance, including its own implementation and interpretation of it” (alteration in original))). That is to say, even if the face of a policy 

seems to vest administrators with unbridled discretion, itsimplementation history might demonstrate otherwise. On the record before us, there is no such 

implementation-history evidence, so we take the policies at face value.

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28 Opinion of the Court 23-10332

Moats and Sharp further respond that Jarrard got a response 

regarding his 2020 application within two weeks and that the only 

reason he didn’t get one regarding his latest application was because the ministry program had been suspended. Id. at 32. But 

again, they’re missing the point. Even assuming that administrators returned Jarrard’s 2020 application in a timely manner and had 

a good reason for not returning his more recent application, the 

problem remains: Nothing required administrators to respond, let 

alone in a timely fashion, to either application. Administrators 

could have sat on Jarrard’s applications indefinitely without violating any rule embodied in either the Second or Third Policies. And 

again, that’s a problem.

Because the Second and Third Policies contained neither any 

meaningful substantive guidance for Jail administrators’ decisionmaking nor any timeline in which they had to respond, they 

violated the First Amendment’s unbridled-discretion doctrine.

C

Having concluded, at least for summary-judgment purposes, that Jarrard’s speech was constitutionally protected and that 

the Second and Third Policies violated the unbridled-discretion 

doctrine, we turn to consider the question whether Jarrard’s damages claims against Moats and Sharp are barred by qualified immunity. We hold that they are not.

1

“Qualified immunity shields public officials from liability for 

civil damages when their conduct does not violate a constitutional 

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23-10332 Opinion of the Court 29

right that was clearly established at the time of the challenged action.” Echols v. Lawton, 913 F.3d 1313, 1319 (11th Cir. 2019) (quotation marks and citation omitted). To enjoy qualified immunity’s 

protection, “a government official must first establish that he was 

acting within the scope of his discretionary authority when the alleged wrongful act occurred.” Id. (quotation marks and citation 

omitted). The burden then shifts to the plaintiff to show “(1) that 

the official violated a statutory or constitutional right, and (2) that 

the right was clearly established at the time of the challenged conduct.” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). We 

can consider the merits and clearly-established prongs in either order, and “an official is entitled to qualified immunity if the plaintiff 

fails to establish either.” Piazza v. Jefferson Cnty., 923 F.3d 947, 951 

(11th Cir. 2019). 

All here agree that that Moats and Sharp were acting within 

their discretionary authority. And for reasons already explained, 

Moats and Sharp violated Jarrard’s First Amendment rights (1) 

when they denied his applications for what the record as we must 

construe it indicates were viewpoint-discriminatory reasons, and 

(2) because the Second and Third Policies impermissibly vested administrators with unbridled discretion to approve or deny wouldbe volunteer ministers’ applications. Accordingly, all that remains 

is to determine whether the law underlying Jarrard’s claims was 

clearly established when these violations occurred. We conclude 

that it was, on both counts.

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30 Opinion of the Court 23-10332

In determining whether a right was clearly established at the 

time an official acted, we ask “whether the contours of the right 

were sufficiently clear that every reasonable officer would have understood that what he was doing violates that right.” Prosper v. Martin, 989 F.3d 1242, 1251 (11th Cir. 2021) (citing al-Kidd, 563 U.S. at 

741). In this circuit, a plaintiff can meet his burden in any of three 

ways. He can either (1) come forward with “case law with indistinguishable facts clearly establishing the constitutional right,” (2)

point to “a broad statement of principle within the Constitution, 

statute, or case law that clearly establishes a constitutional right,” 

or (3) show that officials engaged in “conduct so egregious that a 

constitutional right was clearly violated, even in the total absence 

of case law.” Id.18

18 It appears that our journey to these three now-familiar “buckets” began in 

Hope v. Pelzer, 240 F.3d 975 (11th Cir. 2001), rev’d, 536 U.S. 730 (2002). We held 

there that although “the policy and practice of cuffing an inmate to a hitching 

post or similar stationary object for a period of time that surpasses the necessity to quell a threat or restore order is a violation of the Eighth Amendment,” 

qualified immunity shielded the defendant officers from liability because the 

plaintiff couldn’t point to existing decisions that were “‘materially similar’ to 

the facts” of his case. Id. at 980–81. On review, the Supreme Court criticized 

the “materially similar” facts requirement as a “rigid gloss on the qualified immunity standard” that “[was] not consistent with [that Court’s] cases.” Hope, 

536 U.S. at 739. Chastened, we articulated in short order additional means by 

which a plaintiff would show clearly established law. In Mercado v. City of Orlando, we acknowledged that while a plaintiff could still bear his burden by 

“show[ing] . . . a materially similar case” that would give notice to police, he 

could also show that “a broader, clearly established principle should control 

the novel facts in this situation” or that his case “fits within the exception of 

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Needless to say, the first and third paths are narrow. Cases 

with genuinely “indistinguishable facts” are rare—and, in fact Jarrard doesn’t even claim that any on-point, binding precedent would 

have put Moats and Sharp on notice that their conduct was unconstitutional. So too, circumstances in which we have found the third 

so-egregious-that-caselaw-is-unnecessary condition satisfied are 

few and far between. And that’s not surprising, as a plaintiff trodding that path must show that a defendant’s conduct “lies so obviously at the very core of what the [relevant constitutional provision] prohibits that the unlawfulness of the conduct was readily apparent to the official, notwithstanding the lack of case law.” Loftus 

v. Clark-Moore, 690 F.3d 1200, 1205 (11th Cir. 2012) (alteration in 

original) (quotation marks and citation omitted). Our decision in 

Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002), exemplifies the level of 

outrageousness that we have required. There, an officer arrested a 

woman for committing a traffic violation and then—after handcuffing and securing her—walked her around to the back of her car 

and slammed her head against the trunk. Id. at 1191. We held that 

“no reasonable officer could have believed” that such “grossly disproportionate force” was legal. Id. at 1199. However objectionable 

Moats and Sharp’s conduct, it doesn’t rise to that level.

The second broad-principle category encompasses situations in which our case law has sufficiently established a constitutional right that every reasonable officer would know his conduct 

conduct which so obviously violates that constitution that prior case law is 

unnecessary.” 407 F.3d 1152, 1159 (11th Cir. 2005).

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32 Opinion of the Court 23-10332

was unlawful despite the fact that we hadn’t yet applied the principle to the specific facts of his case. Our recent decision in Acosta v. 

Miami-Dade County, 97 F.4th 1233 (11th Cir. 2024), is illustrative. 

Looking to a handful of existing cases, we held that the law clearly 

established that an arresting officer may not use gratuitous force 

on a non-resisting suspect who no longer poses a threat to the officer’s safety. Id. at 1242 (collecting cases). Notably, we didn’t parse 

out whether any of those cases involved indistinguishable facts or 

circumstances. Rather, we found the principle clearly established 

because we had affirmed it in a variety of situations. See id. That 

was enough to put the officers on notice that tasing and kicking a 

non-resisting suspect who was lying unconscious on the ground 

was unlawful. See id. at 1237, 1241–42.

2

So, did Moats and Sharp violate clearly established law when 

they denied Jarrard’s applications (1) based on what we must assume (again, given the existing record and procedural posture) was 

their disagreement with his views about baptism, and (2) by applying the criteria-less Second and Third Policies? We hold that they 

did. Both Jarrard’s right to be free from viewpoint discrimination 

and his right not to be subject to decisionmakers’ unbridled discretion were clearly established—in particular, both were firmly 

grounded in “broad statement[s] of principle” expressly articulated 

in governing caselaw. Prosper, 989 F.3d at 1251.

With respect to the former, we (following the Supreme 

Court’s unambiguous lead) have repeatedly affirmed that “[e]ven 

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23-10332 Opinion of the Court 33

in a non-public forum, the law is clearly established that the state 

cannot engage in viewpoint discrimination—that is, the government cannot discriminate in access to the forum on the basis of the 

government’s opposition to the speaker’s viewpoint.” Cook v. Gwinnett Cnty. Sch. Dist., 414 F.3d 1313, 1321 (11th Cir. 2005); see also, e.g., 

Perry, 460 U.S. at 46. Accordingly, no matter what kind of forum 

the Polk County Jail was, Moats and Sharp were—had to have 

been—on notice that excluding Jarrard from the volunteer ministry program based on his views about baptism was unlawful. And 

yet, given the facts as we must construe them, that’s exactly what 

they did. Qualified immunity, therefore, does not shield Moats and 

Sharp from damages liability on Jarrard’s First Amendment retaliation claim.19 We reverse the district court’s contrary conclusion.20

19 Nor, of course, does qualified immunity shield Moats and Sharp from Jarrard’s request for injunctive relief on his retaliation claim. See Pearson v. Callahan, 555 U.S. 223, 242–43 (2009) (observing that qualified immunity isn’t available in “§ 1983 cases against individuals where injunctive relief is sought instead of or in addition to damages”). As already explained, see supra at 10 n.8, 

the district court erred when it concluded that Jarrard had abandoned his request for injunctive relief on the retaliation claim.

20 Judge Rosenbaum would grant Moats and Sharp qualified immunity on the 

ground that “they were not on clear notice that Pickering”—rather than the 

usual forum analysis—“did not govern their decision.” Rosenbaum Op. at 1. 

Her arguments are interesting and characteristically well-considered. Respectfully, though, we disagree. For starters, we don’t think that a qualified-immunity doctrine that even pretends to real-world relevance can turn on 

whether line-level jail officials like Moats and Sharp had clear notice of a judgecreated test called the “Pickering framework,” id. at 1, 2, 6, or its application. 

Without casting any aspersions whatsoever, we rather doubt that Moats and 

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34 Opinion of the Court 23-10332

So too, the law has long been clearly established that decisionmakers like Moats and Sharp may not exercise unbridled discretion in deciding who can (and can’t) speak. Our cases predating 

the promulgation of the Second and Third Policies make abundantly clear that any permitting-like scheme must entail both (1) 

substantive criteria to guide and cabin the decisionmakers’ discretion and (2) a timeline specifying how long those decisionmakers 

have to respond to applications. See, e.g., Burk, 365 F.3d at 1256; 

Bloedorn, 631 F.3d at 1236–37; Barrett, 872 F.3d at 1222–23. Because 

the Second and Third Policies entailed neither safeguard, we hold 

that they violated Jarrard’s clearly established First Amendment 

rights.21

Sharp have ever even heard of Pickering or the multistep balancing analysis 

that courts have fashioned around it—so surely neither of those can be the 

object of the notice required that modern qualified-immunity jurisprudence 

protects. Nor, for reasons we’ve tried to explain, could Moats and Sharp have

reasonably thought, as a matter of fact, that Jarrard was a government employee—such that Pickering (whether or not they’d heard of it) would apply. 

When Jarrard initially joined the volunteer ministry program, all he had to do 

was put his name on a list. The jail never paid him. He had no set schedule. 

For that matter, there was no requirement (or even expectation) that he show 

up. To repeat: “In no practical respect did Jarrard’s participation in the ministry program resemble a traditional government ‘job.’” Supra at 17.

21 Contrary to the district court’s suggestion, we don’t think that Barrett is offpoint for the reason that it involved a limited public forum rather than a nonpublic forum. Barrett “identified viewpoint discrimination as a particular evil 

with which we were concerned” in adjudicating unbridled-discretion claims,

872 F.3d at 1226, and as we have already explained, viewpoint discrimination 

is unlawful even in non-public fora. We also highlighted in Barrett that we had 

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23-10332 Opinion of the Court 35

* * *

Because the law clearly established Jarrard’s constitutional 

rights to be free from viewpoint discrimination and not to be subject to a permitting-like scheme that vested decisionmakers with 

unbridled discretion, we hold that the district court erred in granting summary judgment to Moats and Sharp. Accordingly, we reverse those parts of the district court’s opinion.

We REVERSE the district court’s decision and REMAND

the case for further proceedings consistent with this opinion.

previously applied the unbridled-discretion doctrine in the context of an airport, the quintessential non-public forum, because of the risk of latent viewpoint discrimination. Id. at 1225 (discussing Atlanta J. & Const. v. City of Atlanta 

Dep’t of Aviation, 322 F.3d 1298 (11th Cir. 2003)).

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23-10332 ROSENBAUM, J., Dissenting in Part 1

ROSENBAUM, Circuit Judge, concurring in part and dissenting in 

part:

I join all but Part II-C-2 of the Majority Opinion. I write separately because I would affirm the part of the district court’s order 

concluding that Defendants Sheriff Johnny Moats and Chief Deputy Al Sharp are entitled to qualified immunity. To reach its contrary conclusion, the Majority Opinion necessarily first finds that 

participants in the Polk County Jail volunteer ministry program, 

like Plaintiff Stephen Jarrard, do not act as government employees, 

so the framework that Pickering v. Board of Education of Township 

High School District 205, 391 U.S. 563 (1968), establishes does not apply to him. That conclusion may well be correct. But by itself, it’s 

not enough to overcome Moats and Sharp’s qualified-immunity defense. 

Even if the Majority Opinion is right that the Pickering framework doesn’t apply here, it has identified no precedent that clearly 

established that a volunteer prison chaplain does not act as a government employee. Yet as the Majority Opinion acknowledges, 

other courts have applied the Pickering framework to volunteer 

prison chaplains. The upshot of this is that when Moats and Sharp 

declined to allow Jarrard to participate in the program, they were 

not on clear notice that Pickering did not govern their decision. And 

if Pickering did control, its framework did not clearly establish that 

Moats and Sharp violated Jarrard’s First Amendment rights.

The Majority Opinion fails to explain how Supreme Court 

or our precedent would have made it clear to every competent jail 

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2 ROSENBAUM, J., Dissenting in Part 23-10332

official that Jarrard wasn’t a government employee and was thus 

not subject to the Pickering framework. I can’t find precedent from 

the time of Moats and Sharp’s actions that clearly establishes that, 

either. For this reason, I respectfully dissent.

I divide my discussion into two substantive parts. Section I 

explains why the law did not clearly establish that a volunteer jail 

chaplain in the program here did not act as a government employee and so was not subject to the Pickering framework. And Section II shows that, under Pickering, it was not clearly established 

that Moats and Sharp’s decisions not to allow Jarrard to participate 

violated the First Amendment.

I.

The qualified-immunity doctrine seeks to balance “the need 

to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). To resolve this balance, the 

doctrine protects government officials engaged in discretionary 

functions and sued in their individual capacities unless they violate 

“clearly established federal statutory or constitutional rights of 

which a reasonable person would have known.” Keating v. City of 

Miami, 598 F.3d 753, 762 (11th Cir. 2010) (cleaned up).

The “clearly established” component has the effect of shielding from liability “all but the plainly incompetent or one who is 

knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 

1194 (11th Cir. 2002) (citation omitted). 

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23-10332 ROSENBAUM, J., Dissenting in Part 3 

A plaintiff may show that the law was clearly established at 

the time of the conduct in one of three ways: he “must point to 

either (1) ‘case law with indistinguishable facts,’ (2) ‘a broad statement of principle within the Constitution, statute, or case law,’ or 

(3) ‘conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law.’” Crocker v. Beatty, 995

F.3d 1232, 1240 (11th Cir. 2021) (quoting Lewis v. City of West Palm

Beach, 561 F.3d 1288, 1291–92 (11th Cir. 2009)). 

But to satisfy this burden, in our Circuit, a plaintiff must 

point “to binding decisions of the Supreme Court of the United 

States, this Court, [or] the highest court of the relevant state” (here, 

Georgia). Glasscox v. City of Argo, 903 F.3d 1207, 1217 (11th Cir.

2018). Precedent from other jurisdictions cannot clearly establish 

the law in our Circuit. Gilmore v. Ga. Dep’t of Corr., 111 F.4th 1118, 

1135–36 (11th Cir. 2024). 

And we judge whether the law was clearly established by 

looking to the law at the time of the official’s act, not as the law has 

developed since that time. Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982). In sum, “[i]f objective observers cannot predict—at the 

time the official acts—whether the act was lawful or not, and the 

answer must await full adjudication in a district court years in the 

future, the official deserves immunity from liability for civil damages.” Foy v. Holston, 94 F.3d 1528, 1534 (11th Cir. 1996).

That’s the case here. When Moats and Sharp declined to 

allow Jarrard to participate in the program, the law wasn’t clear 

that their refusal violated his First Amendment rights. To begin 

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4 ROSENBAUM, J., Dissenting in Part 23-10332

with, Jarrard faced an uphill battle. We’ve said that “[i]t is particularly difficult to overcome the qualified immunity defense in the 

First Amendment context.” Gaines v. Wardynski, 871 F.3d 1203, 

1210 (11th Cir. 2017) (collecting cases). After all, First Amendment 

claims are usually intensely fact-specific. 

So I turn to the specific problem here. A plaintiff who claims

a violation of his First Amendment rights must show that his 

speech is “constitutionally protected.” Brannon v. Finkelstein, 754 

F.3d 1269, 1274 (11th Cir. 2014) (quoting Castle v. Appalachian Tech. 

Coll., 631 F.3d 1194, 1197 (11th Cir. 2011)). And to be sure, the First 

Amendment presumptively protects many areas of expression. See 

United States v. Stevens, 559 U.S. 460, 468 (2010). 

But it does not presumptively protect a government employee’s speech. See Pickering, 391 U.S. at 568. That’s because the 

government “has interests as an employer in regulating the speech 

of its employees that differ significantly from those it possesses in 

connection with regulation of the speech of the citizenry in general.” Id. 

So we apply a two-step framework that balances the state’s 

interest in effective governance against its employees’ interest in exercising their First Amendment rights. See Alves v. Bd. of Regents, 

804 F.3d 1149, 1159–60 (11th Cir. 2015) (explaining the framework). 

Of course, we apply Pickering only if the plaintiff is a government 

employee. But as the Majority Opinion acknowledges, the definition of a government employee is not exactly clear-cut. See Maj. 

Op. at 14–15, 17–18. 

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Jarrard’s damages claim succumbs to qualified immunity because he can point to neither “case law with indistinguishable facts” 

nor “a broad statement of principle within the Constitution, statute, or case law” that directs us to disregard Pickering’s framework.1 

Perez v. Suszczynski, 809 F.3d 1213, 1222 (11th Cir. 2016) (quoting 

Lewis, 561 F.3d at 1291–92). And because Pickering resolves whether 

speech is constitutionally protected in the first place, failure to dispel its application or prevail under its framework through clearly 

established law dooms both Jarrard’s retaliation and unbridled-discretion claims.

No “broad statement of principle” identifies who is a government employee for purposes of Pickering. We have noted that 

“courts have extended the application of the Pickering analysis to 

cover more than just traditional public employees”—that is, more 

than “a traditional salaried public employee.” McKinley v. Kaplan, 

262 F.3d 1146, 1149 n.5 (11th Cir. 2001). But we have not offered a 

clear rule to help courts determine the outer bounds of Pickering’s 

exception. Rather, we have explained that Pickering cases are “intensely fact-specific and do not lend themselves to clear, bright-line 

rules.” Maio v. Sipple, 211 F.3d 1346, 1354 (11th Cir. 2000) (quoting 

Martin v. Baugh, 141 F.3d 1417, 1420 (11th Cir. 1998)). 

1 No one suggests that the conduct here was “so egregious that a constitutional 

right was clearly violated, even in the total absence of case law,” Perez, 809 

F.3d at 1222. See Maj. Op. at 31 (“However objectionable Moats and Sharp’s 

conduct, it doesn’t rise to that level.”).

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6 ROSENBAUM, J., Dissenting in Part 23-10332

Indeed, courts have applied the Pickering framework to 

plaintiffs who are not, in fact, employed by the government—including to government volunteers. Take Versage v. Township of Clinton, 984 F.2d 1359 (3d Cir. 1993). There, a member of a volunteer 

fire department alleged violations of his First Amendment rights 

when the city terminated his relationship with the fire department 

in retaliation for speech he had engaged in. Id. at 1364. The Third 

Circuit applied the Pickering framework to evaluate the volunteer’s 

claim. See id. It reasoned that “similar First Amendment concerns 

[that apply in a government-employee situation] would apply in a 

volunteer context.” Id. 

Other courts have likewise applied the Pickering framework 

to volunteers’ First Amendment claims. See, e.g., LeFande v. District 

of Columbia, 841 F.3d 485, 488 (D.C. Cir. 2016) (applying Pickering 

to First Amendment claim of Metropolitan Police Department Reserve Corps volunteer, an unpaid volunteer who assisted full-time 

officers of the Metropolitan Police Department in providing lawenforcement services); Janusaitis v. Middlebury Vol. Fire Dep’t, 607 

F.2d 17, 18, 25 (2d Cir. 1979) (applying Pickering to volunteer firefighter’s First Amendment claim); Goldstein v. Chestnut Ridge Vol. 

Fire Co., 218 F.3d 337, 339, 351–56 (4th Cir. 2000) (applying Pickering 

to volunteer firefighter’s First Amendment claim); Harnishfeger v. 

United States, 943 F.3d 1105, 1109, 1113–19 (7th Cir. 2019) (applying 

Pickering to Volunteer in Service to America (VISTA) volunteer’s 

First Amendment claim); Shands v. City of Kennett, 993 F.2d 1337, 

1340, 1342–48 (8th Cir. 1993) (applying Pickering to First Amendment claims of volunteer firefighters); Hyland v. Wonder, 972 F.2d 

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1129, 1132, 1136–40 (9th Cir. 1992) (applying Pickeringto probationdepartment volunteer’s First Amendment claim).

And at least two district courts have applied Pickering to volunteer chaplains specifically. See, e.g., Mustapha v. Monken, 2013 WL 

3224440, at *1, *7–8 (N.D. Ill. June 25, 2013) (applying Pickering to a 

volunteer chaplain for the state police); Mayfield v. City of Oakland, 

2007 WL 2261555, at *1, *4–6 (N.D. Cal. Aug. 6, 2007) (applying 

Pickering to volunteers for city’s volunteer police chaplaincy program). 

True, as the Majority Opinion notes, see Maj. Op. at 17 n.13, 

many of these cases took for granted that Pickering applied. But 

that doesn’t help Jarrard. If all these courts at least implicitly believe that Pickering governs the analysis when it comes to government volunteers, it’s hard to see how it could have been clearly established that Pickering does not apply here.

The Majority Opinion says Jarrard couldn’t have been a government employee because the point of the Jail’s program was to 

provide religious instruction and pastoral care to prisoners—an 

area forbidden for the government. Id. at 16–17. And though that 

makes some sense, courts have applied Pickering to full-time government chaplains or ministers. See, e.g., Donahue v. Staunton, 471 

F.2d 475, 479 (7th Cir. 1972); Baz v. Walters, 782 F.2d 701, 708 (7th 

Cir. 1986); Akridge v. Wilkinson, 178 F. App’x 474, 476, 481 (6th Cir. 

2006). So I don’t see how the Majority Opinion’s point in this respect clearly establishes that Pickering doesn’t apply to government 

chaplains (salaried or voluntary).

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8 ROSENBAUM, J., Dissenting in Part 23-10332

Plus, the government provides the public service of running 

the jails. A big part of that is maintaining order and security. See 

Bell v. Wolfish, 441 U.S. 520, 547 (1979) (explaining jail “administrators . . . should be accorded wide-ranging deference in the adoption 

and execution of policies and practices that in their judgment are 

needed to preserve internal order and discipline and to maintain 

institutional security”). Yet within those confines, jails also must 

allow prisoners to practice their religion. Because a jail’s authority 

extends to both, it enjoys some discretion to strike the necessary 

balance between them. See Pell v. Procunier, 417 U.S. 817, 822 (1974) 

(“[A] prison inmate retains those First Amendment rights that are 

not inconsistent with his status as a prisoner or with the legitimate 

penological objectives of the corrections system.”). And at the very 

least, a sheriff or deputy sheriff could reasonably believe, within 

limits, that the jail’s discretion reaches further than it does.

In the end, the Majority Opinion’s determination that Pickering doesn’t apply comes down to the weighing of what it describes as the “particulars of Polk County’s volunteer ministry program and Jarrard’s participation in it.” Maj. Op. at 14–15. And 

that’s the problem. As the Majority Opinion readily concedes, 

some facts suggest that Jarrard could be an employee. For instance, 

the Majority Opinion acknowledges that Jarrard and other applicants “signed the same confidentiality agreements that employees 

signed, executed waivers of liability, and underwent criminal history checks.” Id. at 17–18. Not only that, but the program involved 

interacting with prisoners. So complying with security measures 

was not optional.

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23-10332 ROSENBAUM, J., Dissenting in Part 9 

The point here is that, ultimately, it makes no difference to 

the “clearly established” analysis whether we weigh these “particulars of Polk County’s volunteer ministry program and Jarrard’s participation in it” to determine Jarrard was not an employee and

therefore not subject to Pinkering. All that matters is whether this 

answer was clearly established to Moats and Sharp at the time of 

their actions. And I just don’t see how, given the legal landscape 

I’ve described, we can say it was.2 See Wilson v. Layne, 526 U.S. 603, 

617–18 (1999) (“Given such an undeveloped state of the law, the 

officers in this case cannot have been ‘expected to predict the future 

course of constitutional law.’” (quoting Procunier v. Navarette, 434 

U.S. 555, 562 (1978)).

2 The Majority Opinion asserts that Pickering couldn’t have muddied the waters on what the Majority Opinion says was clearly established law because 

the Majority Opinion “rather doubt[s] that Moats and Sharp have ever even 

heard of Pickering or the multistep balancing analysis that courts have fashioned around it.” See Maj. Op. at 33 n.20. But the Supreme Court long ago 

“purged qualified immunity doctrine of its subjective components.” Mitchell 

v. Forsyth, 472 U.S. 511, 517 (1985). In other words, binding Supreme Court 

precedent makes “the defendants’ actual state of mind or knowledge of the 

law . . . irrelevant to whether the asserted conduct would have been legally 

reasonable.” Armstrong v. Daily, 786 F.3d 529, 538 (7th Cir. 2015). So the question we must ask is not what Moats and Sharp knew about the governing law 

but whether the governing law clearly established that Jarrard was not a government employee so that the Pickering framework would not apply. And for 

the reasons that I’ve explained, and that the Majority Opinion fails to rebut, 

the answer is that the law was not clearly established.

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10 ROSENBAUM, J., Dissenting in Part 23-10332

II.

Because Jarrard has not pointed to clearly established law 

that directs us to disregard Defendants’ Pickering analysis, we must 

consider whether Jarrard can prevail under a clearly established application of Pickering. He can’t.

A government employee must prevail under our two-step 

Pickering framework to establish a First Amendment claim. At the 

first step, we undertake a “threshold inquiry”: we consider whether 

the employee spoke “(1) as a citizen and (2) on a matter of public 

concern.” Alves, 804 F.3d at 1160. If so, then we proceed to the 

second step. At that step, we ask “whether the relevant government 

entity had an adequate justification for treating the employee differently from any other member of the general public” by balancing the “public and private interests articulated in Pickering.” Id. at 

1159–60 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). If 

the employee prevails at both steps, then the First Amendment protects the employee’s speech, and we proceed to the merits of his 

claim. Moss v. City of Pembroke Pines, 782 F.3d 613, 618 (11th Cir. 

2015).

As I’ve noted, plaintiffs can struggle to pierce qualified immunity’s shield when Pickering controls. First Amendment cases 

seldom produce “a broader, clearly established principle that 

should control the novel facts of the situation” or situations that 

“so obviously violate the constitution that prior case law is unnecessary.” Gaines, 871 F.3d at 1209 (quoting Terrell v. Smith, 668 F.3d 

1244, 1255–56 (11th Cir. 2012)). Plaintiffs usually must “produce a 

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23-10332 ROSENBAUM, J., Dissenting in Part 11

case in which speech materially similar to [theirs] in all PickeringConnick respects was held protected.” Maio, 211 F.3d at 1354–35 

(quoting Martin, 141 F.3d at 1420). 

This case does not defy that pattern. Here, we can’t say that 

no reasonable person could conclude that Jarrard didn’t speak as a 

citizen (but as a government employee) on a matter of public concern. See Maj. Op. at 31. And Jarrard identifies no case clearly establishing a broad principle that controls Pickering’s inquiry here. 

So Jarrard can win only by producing a “binding decision[] of the 

Supreme Court of the United States, this Court, [or] the highest 

court of the relevant state” (here, Georgia), Glasscox, 903 F.3d at 

1217, with materially similar facts that establishes each of element 

of Pickering’s framework—(1)(a) that Jarrard spoke as a citizen; 

(1)(b) that he spoke on a manner of public concern; and (2) that the 

balance of interests weighs in his favor. 

He did not do so. I begin with Pickering’s first step. 

Jarrard argues that we can skip that step because free-exercise claims are not subject to Pickering’s threshold inquiry (whether 

he spoke as a citizen on a matter of public concern). But once 

again, even if that’s so, Jarrard doesn’t show that it’s clearly established. The Supreme Court recently recognized that the question 

“whether the Free Exercise Clause may sometimes demand a different analysis at the first step of the Pickering-Garcetti framework” 

has not yet been answered. Kennedy v. Bremerton Sch. Dist., 597 U.S. 

507, 531 n.2 (2022). In other words, it is not clearly established that 

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12 ROSENBAUM, J., Dissenting in Part 23-10332

we can skip Pickering’s first step when the claim at issue involves 

religious speech, like Jarrard’s does.

And neither of the Eleventh Circuit cases that Jarrard points 

to clearly establishes that proposition, either.3 In Watts v. Florida 

International University, 495 F.3d 1289, 1299 (11th Cir. 2007), we expressed “no view on the ultimate merits, or lack of merit,” of the 

free-exercise claim—including on the applicability of Pickering’s 

first step. We concluded only that Watts adequately pled his sincere religious beliefs. Id. at 1294–99. So Watts does not help Jarrard.

And in Walden v. Centers for Disease Control & Prevention, 669 

F.3d 1277, 1286 (11th Cir. 2012), we explained that Pickering governed Walden’s free-exercise claim. That said, we didn’t apply Pickering because Walden could not provide any evidence that the defendants burdened her sincerely held religious beliefs. Id. 

Put simply, neither panel had reason to grapple with 

whether we can skip Pickering’s first step, so those cases do not 

clearly establish that we skip Pickering’s first step when a free-exercise claim is involved. See Loggins v. Thomas, 654 F.3d 1204, 1222 

(11th Cir. 2011) (applying 28 U.S.C. § 2254(d)(1) and noting that 

implications and dicta cannot “clearly establish federal law”).

3 Jarrard also cites Meriwether v. Hartop, 992 F.3d 492, 504–17 (6th Cir. 2021), 

but that case cannot clearly establish the law in this Circuit for purposes of 

qualified immunity. Gilmore, 111 F.4th at 1135–36.

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23-10332 ROSENBAUM, J., Dissenting in Part 13

Because Jarrard has not shown that it was clearly established 

that we skip the first step in the Pickering analysis when a free-exercise claim is involved, Jarrard must show that it was clearly established under both Pickering steps that Moats and Sharp could not 

decline Jarrard’s application. But Jarrard fails to show under clearly 

established law that he spoke as a citizen on a matter of public concern. So I do not proceed to Pickering’s second step. 

1. At the time of Moats and Sharp’s actions, it was not clearly established that Jarrard spoke as a private citizen.

First, we ask whether Jarrard spoke as a private citizen or in 

his capacity as a government employee. Speech is not protected if 

it “owes its existence to a public employee’s professional responsibilities” or was made “pursuant to” those responsibilities. Garcetti, 

547 U.S. at 421; see also Lane v. Franks, 573 U.S. 228, 240 (2014) (“The 

critical question . . . is whether the speech at issue is itself ordinarily 

within the scope of an employee’s duties, not whether it merely 

concerns those duties.”). The inquiry is practical. Abdur-Rahman v. 

Walker, 567 F.3d 1278, 1283 (11th Cir. 2009) (citing Garcetti, 547 U.S. 

at 424). Formal job descriptions are informative but do not control, 

id.; “[w]e have consistently discredited narrow, rigid descriptions of 

official duties urged upon us to support an inference that public 

employees spoke as private citizens,” id. at 1284. Rather, we review 

the record as a whole to determine whether Jarrard spoke as a citizen or as a government employee. See Garcetti, 547 U.S. at 424–25.

And that poses a problem for Jarrard. Once again, we deal 

with a fact-bound inquiry. So Jarrard must identify a “case in which 

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14 ROSENBAUM, J., Dissenting in Part 23-10332

speech materially similar to [his] was held” to be conducted as a 

citizen, Maio, 211 F.3d at 1355, or which set forth a broad principle leading us to that conclusion, Gains, 871 F.3d at 1209. He has 

not done so.

For instance, Jarrard relies on and Cambridge Christian School 

v. Florida High School Athletic Association (“Cambridge Christian I”), 

942 F.3d 1215, 1232 (11th Cir. 2019), and Gundy v. City of Jacksonville, 

50 F.4th 60, 79 (11th Cir. 2022), to suggest that Jarrard did not speak 

as an employee. But both are irrelevant because we published them 

after Moats and Sharp denied Jarrard’s application to resume his 

ministry in the Jail in 2017. So they could not have put Moats and 

Sharp on notice. See Harlow, 457 U.S. at 818. 

And even considering those cases, they couldn’t have put 

Moats and Sharp on notice that any religious speech Jarrard engaged in as part of the program necessarily would not have qualified as speech in Jarrard’s capacity as a government employee under 

Pickering. Both Cambridge Christian I and Gundy addressed whether 

a non-employee’s speech could be construed as government 

speech. See Cambridge Christian I, 942 F.3d at 1222 (private schools 

speaking over loudspeaker at state-operated football game); Gundy, 

50 F.4th at 64 (legislative invocation given by an invited, guest 

speaker before the opening of a Jacksonville City Council meeting). 

Neither even mentioned Pickering or its framework. And neither 

asked whether the speaker acted under their official duties. Instead, we applied a separate test that balanced three factors—“history, endorsement, and control”—to determine whether, based on 

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totality of the circumstances, the non-employee’s speech 

amounted to government speech. Cambridge Christian I, 942 F.3d at 

1230, 1236; Gundy, 50 F.4th at 76. So these cases and the test they 

applied couldn’t have clearly established how Pickering applies. 

The most apt case Jarrard cites is Hubbard v. Clayton County 

School District, 756 F.3d 1264, 1268 (11th Cir. 2014). But it doesn’t 

get him where he needs to be, either. There, we determined that 

Hubbard did not make the relevant statements “as an employee of 

the School District” because he was “on leave from the School District” and away from his school at the time he made the remarks. 

Id. at 1267. He instead spoke, we said, “in his capacity as president 

of ” the Georgia Association of Educators. Id. But unlike Hubbard, 

who clearly spoke outside his capacity as a government employee, 

Jarrard sought to make his statements while actively ministering in 

the government program. So Hubbard provided no guidance to 

Moats and Sharp and did not clearly establish that their actions violated Jarrard’s rights. 

That leaves Jarrard with only the broad claim that no reasonable person who observed Jarrard speak would believe he conveyed 

a religious message on the government’s behalf. But our case law 

does not establish the principle “so clear[ly] and broad[ly] (and ‘not 

tied to particularized facts’),” Gains, 871 F.3d at 1209 (citation omitted), that religious speech can never qualify as government speech. 

In fact, as recently as September 3, 2024, in our follow-up to Cambridge Christian I, we concluded that a 30-second religious address 

by a high school at the Florida High School Athletic Association’s 

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16 ROSENBAUM, J., Dissenting in Part 23-10332

state football championship qualified as “government speech.” 

Cambridge Christian Sch. v. Fla. High Sch. Athletic Ass’n (“Cambridge 

Christian II”), ___ F.4th ___, 2024 WL 4018866, at *20 (11th Cir. 

Sept. 3, 2024). Not only that, but the fact that the government may 

violate the Establishment Clause also shows that religious speech 

may be government speech. See, e.g., Engel v. Vitale, 370 U.S. 421, 

430 (1962). Plus, that government chaplains have official responsibilities they may speak under further shows that the government is 

capable of engaging in religious speech. See Baz, 782 F.2d at 709 

(rejecting the argument that the V.A. violated “the First Amendment when it took steps to ‘limit and restrict the manner in which 

the Plaintiff could pray with patients, preach, and also limited the 

content of his sermons’”). Put simply, these First Amendment 

questions are contextual. See Garcetti, 547 U.S. at 424 (“The proper 

inquiry is a practical one.”); Cambridge Christian I, 942 F.3d at 1230 

(balancing “history, endorsement, and control” factors). And when 

“case law, in factual terms, has not staked out a bright line, qualified 

immunity almost always protects the defendant.” Smith v. Mattox,

127 F.3d 1416, 1419 (11th Cir. 1997) (citation omitted). 

For these reasons, when Moats and Sharp rejected Jarrard, it 

was not clearly established that any speech Jarrard would have engaged in as part of the Jail’s program would not have been in his 

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official capacity. So Moats and Sharp are entitled to qualified immunity.

2. At the time of Moats and Sharp’s actions, it was not clearly established that Jarrard spoke on a matter of public concern.

Next, we ask whether Jarrard spoke on a matter of public 

concern. “Speech is considered to deal with a matter of public concern ‘when it can be fairly considered as relating to any matter of 

political, social, or other concern to the community, or when it is a 

subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’” United States v. 

Fleury, 20 F.4th 1353, 1364 (11th Cir. 2021) (quoting Snyder v. Phelps, 

562 U.S. 443, 453 (2011)). In undertaking this inquiry, we consider 

the “content, form, and context” of a government employee’s 

speech. O’Laughlin v. Palm Beach County, 30 F.4th 1045, 1051 (11th 

Cir. 2022). Content is “the most important factor.” Mitchell v. Hillsborough County, 468 F.3d 1276, 1284 (11th Cir. 2006). But again, we 

review “the record as a whole.” Id. at 1286.

Jarrard argues that religious speech is inherently of public 

concern, and, even if it isn’t, the circumstances of Jarrard’s ministry 

confirm that he spoke on a matter of public concern.4 But yet 

4 Defendants cite the district court’s conclusion that Jarrard abandoned the argument in the district court. I disagree. Jarrard’s “public concern” argument, 

though brief, was not “perfunctory” or “without supporting arguments.” 

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). It gave 

Defendants sufficient notice and opportunity to respond. Jarrard also argued 

each element within the Pickering framework, so we can consider each 

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18 ROSENBAUM, J., Dissenting in Part 23-10332

again, Jarrard cites no “binding decision[] of the Supreme Court of 

the United States, this Court, [or] the highest court of the relevant 

state” (here, Georgia), Glasscox, 903 F.3d at 1217, clearly establishing those propositions. 

Jarrard rightfully points out that the “public concern requirement exists because that category of expression is at the core 

of the First Amendment’s protections.” Grigley v. City of Atlanta, 

136 F.3d 752, 755 (11th Cir. 1998). But he offers no case that both 

binds us and applies that principle to religious speech. True, some 

of our sister circuits have held that religious speech is of inherent 

public concern. E.g. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 

966 (9th Cir. 2011); see also Brown v. Polk Cnty., 61 F.3d 650, 658 (8th 

Cir. 1995); Adams v. Trs. of Univ. of N.C.-Wilmington, 640 F.3d 550, 

565 (4th Cir. 2011) (listing “religion” among “topics [that] plainly 

touched on issues of public, rather than private, concern”). But 

our sister circuits’ opinions do not clearly establish law in the Eleventh Circuit. Gilmore, 111 F.4th at 1135–36. 

And even if they could, it’s not clear that a “robust consensus” of them, District of Columbia v. Wesby, 583 U.S. 48, 65 (2018), 

supports the proposition that religious speech inherently, rather 

than contextually, addresses a matter of public concern. For instance, Jarrard cites Scarbrough v. Morgan County Board of Education, 

470 F.3d 250, 257 (6th Cir. 2006). But there, the Sixth Circuit concluded that Scarbrough’s religious speech “touch[ed] on a matter 

component of it, even if Jarrard’s district-court briefing as to one of them was 

limited. 

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of public concern, given its content, form, and context.” Id. (emphasis 

added). Content was not dispositive. 

Plus, other circuits have applied the usual, holistic analysis 

and concluded, despite the religious content of the speech at issue, 

that the plaintiff did not address a matter of public concern. See

Daniels v. City of Arlington, 246 F.3d 500, 504 (5th Cir. 2001) (“Although personal religious conviction . . . obviously is a matter of 

great concern to many members of the public, in this case it simply 

is not a matter of ‘public concern’ as that term of art has been used 

in the constitutional sense.”). In sum, no broad, general principle 

clearly establishes that Jarrard necessarily spoke on a matter of public concern simply because his speech involved religious matters.

So Jarrard had to produce a materially similar case to his that 

clearly established his religious speech was of public concern. See 

Maio, 211 F.3d at 1354–55. He did not do so. None of the binding 

cases from 2017 or earlier that Jarrard cites addresses whether religious speech necessarily touches on a matter of public concern. 

See, e.g., Cook v. Gwinnett Cnty. Sch. Dist., 414 F.3d 1313, 1317 (11th 

Cir. 2005) (safety of children in school); Peterson v. Atlanta Hous. 

Auth., 998 F.2d 904, 916 (11th Cir. 1993) (pre-leasing practices and 

maintenance problems in Atlanta Housing Authority buildings); 

Rankin v. McPherson, 483 U.S. 378, 386 (1987) (policies of the President’s administration); Grigley, 136 F.3d at 753 (pursuing criminal 

charges). And none of them confronted speech in a jail or prison 

setting. See, e.g., Connick v. Myers, 461 U.S. 138, 140 (1983) (district 

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20 ROSENBAUM, J., Dissenting in Part 23-10332

attorney’s office); Mitchell, 468 F.3d at 1280 (county commissioner 

hearing). 

The First Amendment questions that Jarrard’s circumstances (religious speech to inmates) present are ultimately novel 

for this Court. So we cannot say that Moats and Sharp reasonably 

should have “predict[ed]—at the time [of ] the[ir] official acts”—

that Jarrard spoke on a matter of public concern without 

“await[ing] full adjudication” by us. Foy, 94 F.3d at 1534. And as a 

result, they are entitled to qualified immunity. See id. 

* * *

At bottom, Moats and Sharp assert that Jarrard was a government employee whose speech fell within the scope of his employment as a government minister. In other words, they argue 

that Jarrard did not engage in any constitutionally protected 

speech. They may very well be wrong about that. But that’s not 

the relevant question on a qualified-immunity inquiry. And neither 

Jarrard nor the Majority Opinion has pointed to any law that clearly 

established that as of 2017. So Moats and Sharp are entitled to qualified immunity. For that reason, I would affirm the district court’s 

grant of summary judgment in their favor on that issue.

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