by Douglas Ankney

A volunteer minister took a dustup with Georgia jailers over baptism to the United States Court of Appeals for the Eleventh Circuit, which agreed on September 16, 2024, that he had been subjected to impermissible viewpoint discrimination in violation of the First Amendment. The relevant policies adopted by the Polk County Jail, the Court found, gave officials “unbridled discretion” in deciding whether to permit Rev. Stephen Jarrard to express his religious views.

Not long after Jarrard began volunteering to minister to detainees at the jail in 2012, he got into a theological dispute with the program leader over his views on baptism. Jarrard insisted that saving a person’s immortal soul from hell required baptism by full immersion. When he refused to stop teaching this, he was kicked out of the jail ministry program. Sheriff Johnny Moats reportedly disputed Jarrard’s teachings, too.

Nevertheless, the Sheriff permitted Jarrard to return two years later. He performed two detainee baptisms, but then the jail suspended the program and amended its relevant policy in 2016 to state that “[r]eligious rituals such as baptism and wedding ceremonies will not be conducted for inmates”; as Jarrard recalled, Chief Jailer Al Sharp explained that neither ritual was considered “necessary,” so detainees could wait for them until after release. Jarrard reapplied when the ministry program resumed but was rejected. He claimed it was for his views on baptism. The Sheriff and Sharp said that the preacher was so contentious and disruptive that they suspected he had mental health problems.

Apparently unconcerned with appearing to prove them right, Jarrard took up a post outside the jail and maintained a one-man vigil in protest of his exclusion. The jailers sometimes stopped to speak to him, he recalled, but the conversations always ended at their dispute over the importance of baptism. Jarrard then filed suit, accusing them of violating his First Amendment rights by retaliating against him for a viewpoint they disagreed with.

The jailers then amended their policy to require program participants to apply with documentation to the jail—after which they must attend a training session and be approved by Sharp. The policy provided no application form or guidelines. Nor did it describe the required “documentation.” The criteria that the Jail Administrator would use to make his decision were also not included.

Jarrard again submitted an application, which was denied. He applied again after the policy was revised a second time to change the description of the required “volunteer application” and provide for a “background check.” But again, no criteria for approval were included. When Jarrard’s application was denied once more, he amended his complaint to claim that the policy was effectively a licensing scheme that impermissibly gave jailers “unbridled discretion” in granting one.

The federal court for the Northern District of Georgia found for Defendants on all claims. Jarrard’s First Amendment claim was denied because he was effectively an “employee” of the jail so his rights were limited by Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968). His unbridled discretion claim was also denied because Defendants were entitled to qualified immunity (QI). Jarrard appealed.

At the Appellate Court

The Eleventh Circuit evaluated Jarrard’s First Amendment under Brannon v. Finkelstein, 754 F.3d 1269 (11th Cir. 2014), to see whether “(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.”

As to the first element, the Court rejected the district court’s Pickering analysis and found that Jarrard was not an employee of the Jail because (1) providing religious instruction and pastoral care to inmates is not a “public service” that the government has traditionally provided due to the federal Constitution’s Establishment Clause; (2) Jarrard was also not paid by the government for his ministry work; and (3) he was not required to attend the program, as would be expected of an employee.

Instead, the Court said that any “regulation of speech based on the speaker’s viewpoint is presumptively invalid”; at the very least, it “must be the least restrictive means of achieving a compelling state interest,” as quoted from McCullen v. Coakley, 573 U.S. 484 (2014). Since Jarrard had put forth evidence from which a jury could conclude that Defendants had engaged in viewpoint discrimination because of their disagreement with his beliefs about baptism, summary judgment was inappropriate.

Additionally, even if the Defendants had put forth a compelling governmental interest, denying Jarrard’s application was not the least restrictive means of achieving it. Detainees upset by his speech could be escorted from the services, for example. By instead excluding Jarrard from the ministry program based on his beliefs, his right to “constitutionally protected” speech was violated, the Court concluded.

“Unbridled Discretion”

Regarding Jarrard’s challenges to the policy as revised, the Court observed that a facial challenge to a licensing scheme may be sustained when the rule “vests unbridled discretion in a government official over whether to permit or deny expressive activity,” quoting Tracy v. Florida Atl. Univ. Bd. of Trs., 980 F.3d 799 (11th Cir. 2020). Underlying this doctrine is the belief that “[e]xcessive discretion … is constitutionally suspect because it creates the opportunity for undetectable censorship and signals a lack of narrow tailoring,” the Court said, quoting Burk v. Augusta-Richmond Cnty., 365 F.3d 1247 (11th Cir. 2004). In Tracy, the Eleventh Circuit held that a policy would likely be invalidated if not “narrowly drawn” to promulgate “reasonable, and definite standards to guide the official [decision maker’s] decision.” A policy must also provide a timeframe for a decision on the application, per Barrett v. Walker Cnty. Sch. Dist., 872 F.3d 1209 (11th Cir. 2017).

The Court found that neither the second nor third revisions to the policy provided any “narrowly drawn, reasonable, and definite standards” to guide Jail officials in deciding whether to accept a volunteer, nor where and for how long the volunteer should be allowed to speak. Furthermore, neither policy revision limited the time for an official to return a decision. The Court concluded that both revisions therefore violated the First Amendment under the “unbridled-discretion” doctrine.

As for granting officials QI, the Court noted that it could shield unconstitutional conduct the right was not “clearly established at the time of the challenged action,” per Echols v. Lawton, 913 F.3d 1319 (11th Cir. 2019). A right has been clearly established when “the contours of the right were sufficiently clear that every reasonable officer would have understood that what he was doing violates that right,” the Court added, citing Prosper v. Martin, 989 F.3d 1242 (11th Cir. 2021). With regard to Jarrard’s constitutionally protected speech, the Eleventh Circuit said that it had repeatedly affirmed that “[e]ven in a nonpublic 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,” as spelled out in Cook v. Gwinnett Cnty. Sch. Dist., 414 F.3d 1313 (11th Cir. 2005). Moreover, the right to be subjected to official policies free of “unbridled discretion” was clearly established in both Burk and in Bloedorn v. Grube, 631 F.3d 1218 (11th Cir. 2011). Consequently, the Defendants were not entitled to QI.

Accordingly, the Court reversed the district court’s holding that Jarrard’s speech was not constitutionally protected and remanded the case for that court to address the “adverse conduct” and “causal relationship” prongs of the retaliation claim, also reversing the grant of QI to Defendants. Before the Court, Jarrard was represented by attorneys Zack Greenamyre and Mitchell Shapiro of Greenamyre & Funt, LLP and Gerald R. Weber Jr. of his eponymous law firm, all in Atlanta; and John A. Meiser and Meredith H. Kessler, of Notre Dame Law School in South Bend, Ind. See: Jarrard v. Sheriff of Polk Cnty., 115 F.4th 1306 (11th Cir. 2024).  

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