United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell United States District Judge.
cause comes before the Court upon the Report and
Recommendation filed by Magistrate Judge Amanda Arnold
Sansone on February 3, 2017 (Doc. 50). The Magistrate Judge
recommends dismissal of Plaintiff Cambridge Christian School,
Inc.'s (“Cambridge Christian”) Verified
Amended Complaint (Doc. 8) and denial of Cambridge
Christian's Motion for Preliminary Injunction (Doc. 9).
All parties were furnished copies of the Report and
Recommendation and were afforded an opportunity to file
objections pursuant to 28 U.S.C. § 636(b)(1). Cambridge
Christian filed an Objection (Doc. 55) to which Defendant
Florida High School Athletic Association, Inc.
(“FHSAA”) responded (Doc. 56).
consideration of the Report and Recommendation, this
Court's independent examination of the file de novo, and
a review of Cambridge Christian's Objection and the
response thereto, it is determined that the Report and
Recommendation should be adopted, confirmed, and approved.
FHSAA is the nonprofit, governing organization for athletics
in Florida's public schools. § 1006.20(1), Fla.
Stat. (2016). It is a state actor. Private schools that wish
to participate in high school athletic competitions with
public high schools are permitted to become members of the
FHSAA. Id. Cambridge Christian, whose athletic teams
are referred to as the “Lancers”, is an
independent, co-educational, private Christian school that
participates in the FHSAA. Doc. 8 ¶¶ 10, 15, 25.
The school has the religious mission “[t]o glorify God
in all that [it does]; to demonstrate excellence at every
level of academic, athletic, and artistic involvement; to
develop strength of character; and to serve the local and
global community.” Doc. 8 ¶ 11. Cambridge
Christian's athletic department also has a mission
statement, which states: “The Cambridge Christian
School Athletic Department's chief end is to glorify
Christ in every aspect of [its] athletic endeavors while
using the platform of athletics to: Teach the Principles of
Winning; Exemplify Christian Morals and Values in [its]
Community; Achieve Maximum Physical, Moral and Spiritual
Character Development; and Mentor Young Men and Women to
Deeper Walk with Jesus.” Doc. 8 ¶ 14.
alleged in its Verified Amended Complaint, “[b]y
long-standing tradition, Cambridge Christian
student-athletes, their parents, and fans are led in prayer
by a parent or student or member of the school faculty or
administration before every Cambridge Christian sporting
event.” Doc. 8 ¶ 16. They do so through use of its
loudspeaker during home games, as well as at away games
“when possible, ” and have done so in connection
with Cambridge Christian's football program since it was
founded in 2003. Doc. 8 ¶¶ 16-17. Use of the
loudspeaker “allows the Cambridge Christian community
to come together in prayer, ” which is not otherwise
possible due to the size of the sports venues. Doc. 8 ¶
the 2015 football season, Cambridge Christian's football
team succeeded in qualifying as a finalist for the FHSAA 2A
division playoffs, competing against University Christian
School, which has a similar mission and tradition of prayer
to that of Cambridge Christian's. Doc. 8 ¶¶ 31,
34. This championship game was to be held at the Camping
World Stadium (the “Stadium”) in Orlando,
Florida. Doc. 8 ¶ 2. Prior to the championship
game, Cambridge Christian participated in a conference call
with the FHSAA and, together with University Christian
School, requested to use the Stadium's loudspeaker
“to lead their attending students, families, and fans
in a joint pre-game prayer.” Doc. 8 ¶ 38.
Cambridge Christian indicated that the FHSAA allowed it and
another Christian school to pray over the Stadium loudspeaker
prior to the 2012 championship game. Id. The FHSAA
denied the request. Doc. 8 ¶ 39.
the conference call, Cambridge Christian's Head of
School, Tim Euler, e-mailed the executive director of the
FHSAA, Roger Dearing, requesting that Cambridge Christian be
allowed to “honor their Lord before the game and
pray” over the Stadium's loudspeaker. Doc.8 Ex.
C-1. Mr. Euler advised that he or the pastor from University
Christian School would be willing to “lead the fans,
players, and coaches in prayer, ” and stated that he
“d[id] not believe, with two Christian Schools playing,
” that his request was “unreasonable.” Doc.
8 Ex. C-1. The Head of School for University Christian School
echoed this request. Doc. 8 Ex. C-2.
consulting with the FHSAA's legal counsel, Dr. Dearing
responded to the Heads of Schools, informing them that he
could not permit the schools to use the loudspeaker to pray.
Doc. 8 Ex. D. His reasoning included that: (1) because the
Stadium is a public facility, it was “off
limits”; and (2) the FHSAA is a state actor that could
not “legally permit or grant permission for”
prayer over the loudspeaker. Doc. 8 Ex. D.
championship game was held on December 4, 2015, with
approximately 1, 800 people in attendance. Doc. 8 ¶ 45.
Before the game began, Cambridge Christian and University
Christian School met at the 50-yard line to pray together.
Doc. 8 ¶ 50. The prayer was not permitted to be
broadcast over the loudspeaker and, because of this, the
prayer was not audible to those in attendance. Doc. 8 ¶
52. According to Cambridge Christian, the denial of use of
the loudspeaker prevented “the students, parents, and
fans in attendance the right to participate in the
players' prayer or to otherwise come together in prayer
as one Christian community.” Id.
other speech was not prohibited inside the Stadium. For
instance, messages promoting corporate sponsors of the FHSAA
were displayed along the perimeter of the field and displayed
on the Stadium's video screen. Doc. 8 ¶¶ 46-47.
In addition, such messages were announced over the
Stadium's loudspeaker. Doc. 8 ¶ 48. At halftime,
cheerleaders for Cambridge Christian and University Christian
School performed shows, and utilized the loudspeaker to
broadcast music for their respective performances. Doc. 8
¶¶ 53-54. The music played by Cambridge Christian
was chosen by the school, and originated from the
cheerleading coach's smart phone. Doc. 8 ¶ 54.
the championship game, Dr. Dearing e-mailed a second response
to the Heads of Schools, indicating that the Establishment
Clause of the First Amendment to the United States
Constitution prevented the government from engaging in
activities that could be viewed as endorsement or sponsorship
of religion. Doc. 8 Ex. E. Dr. Dearing advised that allowing
the schools to use the loudspeaker would be contrary to
jurisprudence prohibiting schools from giving the impression
of endorsing religion by allowing prayer over a
public-address system. Doc. 8 Ex.
further noted that Cambridge Christian and University
Christian School were permitted, both before and after the
football game, to pray. Doc. 8 Ex. E.
addition, following the championship game, the FHSAA issued a
statement regarding prayer over public-address systems. Doc.
8 Ex. F. The FHSAA advised that Cambridge Christian and
University Christian school had requested to use the system
for prayer, and stated that it denied the request pursuant to
Florida and United States Supreme Court law, but
“presented alternative options for team prayers,
including on-field prayer, ” which was accepted by the
schools, resulting in the teams participating “in a
personally lead [sic] on-field organized prayer prior to and
following” the championship game. Doc. 8 Ex. F. It
further explained that the FHSAA, “as host and
coordinator of the event, is statutorily a ‘State
Actor', and according to state and federal law, cannot
legally permit or grant permission for the requested activity
over the PA system.” Doc. 8 Ex. F. This policy forms
the basis for Cambridge Christian's claims in this
the FSHAA Administrative Procedure, established by its
Executive Director, includes a provision governing the
“Public Address Protocol” during the state
championship series. Doc. 8 Ex. A. The provision states that
the announcer “shall be considered a bench official for
all Florida High School State Championship Series Events,
” who “will follow the FHSAA script for
promotional announcements, which are available from this
association, player introductions and award
ceremonies.” Doc. 8 Ex. A. Other announcements over the
public address system are limited to those delineated by the
provision, which includes “[t]hose of a
‘practical' nature (e.g., announcing that a driver
has left his/her vehicle lights on), ” and
“[m]essages provided by host school management.”
Doc. 8 Ex. A.
on the FHSAA's denial of its request to use the
loudspeaker for prayer, and believing that the FHSAA's
policy will affect it in the future, Cambridge Christian
filed a seven-count Amended Verified Complaint. In Count I,
Cambridge Christian alleged that the FHSAA's conduct
constituted impermissible content-based and viewpoint-based
discrimination, denying its right to freedom of speech and
placing a substantial burden on its sincerely held religious
beliefs in contravention of the First Amendment. Doc. 8
¶¶ 60-72. In Count II, Cambridge Christian sought
declaratory relief regarding whether the FHSAA's policy
prohibiting religious speech over the loudspeaker violated
Cambridge Christian's rights to freedom of religious
exercise and freedom of speech. Doc. 8 ¶¶ 73-81.
Count III also sought declaratory relief as to whether the
Establishment Clause requires the FHSAA to prohibit prayer
over the loudspeaker. Doc. 8 ¶¶ 82-90. Counts IV
through VI mirrored the previous counts, except that they
were raised under the Florida Constitution's
Establishment Clause and guarantees of freedom of religion
and speech. Doc. 8 ¶¶ 91-121. Finally, Count VII
alleged a violation of section 761.03, Florida Statutes,
which is Florida's Religious Freedom Restoration Act,
because the FHSAA's conduct intentionally placed a
substantial burden on Cambridge Christian's sincerely
held religious beliefs in the absence of any legitimate
government interest and in a manner that was not narrowly
tailored to the least restrictive means of furthering such
interest. Doc. 8 ¶¶ 122-27.
Christian filed the instant motion for preliminary injunction
to enjoin the FHSAA from enforcing its policy of prohibiting
religious speech over a loudspeaker during FHSAA-sponsored
games. Doc. 9. The FHSAA moved to dismiss the Verified
Amended Complaint with prejudice pursuant to Federal Rule of
Civil Procedure 12(b)(6), alleging that Cambridge Christian
could not state any claim for relief. Doc. 26. The FHSAA also
opposed Cambridge Christian's application for a
preliminary injunction. Doc. 25.
party makes a timely and specific objection to a Magistrate
Judge's Report and Recommendation, the district judge
“shall make a de novo determination of those portions
of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C); Jeffrey S. v. State Bd. of Educ. of
State of Ga., 896 F.2d 507, 512 (11th Cir. 1990). With
regard to those portions of the Report and Recommendation not
objected to, the district judge applies a clearly erroneous
standard of review. See Gropp v. United Airlines,
Inc., 817 F.Supp. 1558, 1562 (M.D. Fla. 1993). The
district judge may accept, reject, or modify in whole or in
part, the Report and Recommendation of the Magistrate Judge.
Fed.R.Civ.P. 72. The district judge may also receive further
evidence or recommit the matter to the Magistrate Judge with
further instructions. Id.
Christian objects to the Report and Recommendation
(“R&R”) for the following reasons: (1) the
Magistrate Judge erred in recommending dismissal of its
claims under the First Amendment's Speech Clause (Counts
I-II), and the Florida constitutional corollaries (Counts
IV-V), because it incorrectly concluded that the
Public-Address Protocol allowed only the FHSAA announcer to
use the loudspeaker and impermissibly ignored Cambridge
Christian's well-pleaded allegations that the FHSAA
denied Cambridge Christian access to the loudspeaker based on
its religious viewpoint; (2) the Magistrate Judge erred in
recommending dismissal of its Free Exercise Clause claim
(Counts I-II), and the corollary claim under the Florida
Constitution (Counts IV-V) because it ignored that communal
prayer is an essential part of Cambridge Christian's
religious practices; (3) the Magistrate Judge erred in
recommending dismissal of its request for declaratory relief
that neither the Establishment Clause nor the equivalent
Florida Constitutional provision require the FHSAA to
prohibit prayer from the loudspeaker (Counts III and VI)
because Cambridge Christian's prayer would constitute
private speech; (4) the Magistrate Judge erred in
recommending its claim under the Florida Religious Freedom
Restoration Act (“Act”) be dismissed because by
denying Cambridge Christian use of the Stadium's
loudspeaker, the FHSAA substantially burdened Cambridge
Christian's religious exercise without any compelling
state interest or demonstrating that it adopted the least
restrictive means of achieving that interest; and (5) the
Magistrate Judge erred in recommending that the Court deny
its motion for preliminary injunction because it demonstrated
a substantial likelihood of success on the merits, a
substantial threat of irreparable injury, that the injury
outweighs any threatened harm of the injunction to the FHSAA,
and granting the preliminary injunction will not disserve the
public interest. Doc. 55. Upon de novo review, the Court
agrees with the conclusions in the R&R.
The First Amendment
Establishment and Free Exercise Clauses of the First
Amendment to the United States Constitution prohibit Congress
from making any “law respecting an establishment of
religion, ” or “prohibiting the free exercise
thereof, ” respectively. The First Amendment also
contains the Free Speech Clause, which prohibits Congress
from making any law “abridging the freedom of
speech.” Although the First Amendment explicitly
applies to the actions of Congress, the due process clause of
the Fourteenth Amendment renders it equally applicable to the
States. 44 Liquormart, Inc. v. Rhode Island, 517
U.S. 484, 489 n.1, 116 S.Ct. 1495, 1501 n.1, 134 L.Ed.2d 711
The Free Speech Clause.
Free Speech Clause applies to government regulation of
private speech. Pleasant Grove City, Utah v. Summum,
555 U.S. 460, 467 (2009) (citing Johanns v. Livestock
Marketing Ass'n., 544 U.S. 550, 553, 125 S.Ct. 2055,
161 L.Ed.2d 896 (2005). It does not, however, apply to the
government's own expressive conduct. Id.
Instead, the government “has the right to ‘speak
for itself, ' ” id. (quoting Board of
Regents of University of Wisconsin System v. Southworth,
529 U.S. 217, 229, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000)),
and may “say what it wishes, ” id.
(quoting Rosenberger v. Rector and Visitors of University
of Virginia, 515 U.S. 819, 833, 115 S.Ct. 2510, 132
L.Ed.2d 700 (1995)). This is not curtailed by the fact that
the government “receives assistance from private
sources for the purpose of delivering a government-controlled
message.” Id. Government speech must,
nonetheless, comport with the Establishment Clause.
Id. Here, the FHSAA seeks dismissal because
announcements over the Stadium loudspeaker are government
speech and the Public Address Protocol is a neutral policy
that avoids state entanglement with religion. Cambridge
Christian disagrees, claiming that the prayer would be
the government is not the speaker, but instead supplies a
forum where speech is conducted, the First Amendment and its
Free Speech Clause do apply, and the degree of control that
the government may exert over access to the forum depends on
whether the forum is a public, designated public, limited
public, or non-public forum. Cornelius v. NAACP Legal Def.
& Educ. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct.
3439, 3448, 87 L.Ed.2d 567 (1985). Cambridge Christian does
not argue that the Stadium is a public or designated public
forum. Instead, it contends that if a forum analysis applies,
the Stadium is a limited public forum, which is one where the
government has reserved “for certain groups or for the
discussion of certain topics.” Walker v. Tex. Div.,
Sons of Confederate Veterans, Inc., ___ U.S. ___, 135
S.Ct. 2239, 2250, 192 L.Ed.2d 274 (2015) (quoting
Rosenberger, 515 U.S. at 829).
FHSAA, by contrast, argues that the Stadium is a nonpublic
forum. In a non-public forum, the government “act[s] as
a proprietor, ” and “manag[es] its internal
operations.” Walker, 135 S.Ct. at 2251
(quoting Int'l Soc. for Krishna Consciousness, Inc.
v. Lee, 505 U.S. 672, 678-79, 112 S.Ct. 2701, 120
L.Ed.2d 541 (1992)). The government may restrict speech based
on content, but any restriction must be “reasonable and
. . . not an effort to suppress expression merely because
public officials oppose the speaker's view.”
Cornelius, 473 U.S. at 800 (quoting Perry Educ.
Ass'n v. Perry Local Educators' Ass'n, 460
U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983)).
Additionally, “[t]he restrictions may ‘be based
on subject matter and speaker identity so long as the
distinctions are reasonable in light of the purposes served
by the forum and are viewpoint neutral.' ”
Searcey v. Harris, 888 F.2d 1314, 1319 (11th Cir.
1989). Thus, regardless of whether a forum is a limited
public or non-public forum, viewpoint discrimination against
private speech is impermissible under the First Amendment.
Id. at 1325.
on the above, the first relevant inquiry is whether all
speech over the loudspeaker of the Stadium constitutes
government speech, as was found by the Magistrate Judge. If
it is not, and the Stadium loudspeaker is instead a forum
provided by the government, then the Court must address
whether the forum is a non-public or limited public forum,
and whether the denial of access to the Stadium loudspeaker
constituted viewpoint discrimination. Lee, 505 U.S.
at 678 (explaining that a “forum based” approach
is used “for assessing restrictions that the government
seeks to place on the use of its property.”). For the
reasons set forth below, the Court agrees with the Magistrate
Judge that the entirety of the speech over the Stadium
loudspeaker was government speech and that, even if it were
not, the ...