Reverend Stephen Jarrard v. Sheriff of Polk County

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                                                                 [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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        2                      Opinion of the Court                23-10332

                                                                 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 min-
        istry 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 sum-
        mary judgment. We must decide (1) whether Jarrard’s participa-
        tion in the ministry program involved constitutionally protected
        speech, (2) whether two of the jail’s policies for evaluating volun-
        teer applications impermissibly vested decisionmakers with unbri-
        dled 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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        23-10332                  Opinion of the Court                               3

                                               I
                                              A
               This case’s factual and procedural history is long and wind-
        ing 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 volun-
        teer 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 three-
        month 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. Af-
        terwards, Jarrard would lead discussions of pertinent Bible verses,
        answering inmates’ questions along the way. Importantly here, Jar-
        rard thought that he needed to “get as many folks baptized into
        Christ . . . before Jesus returns” as he could. He believes that bap-
        tism 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, 

 (11th Cir. 2023).
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        4                      Opinion of the Court                 23-10332

        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 get-
        go. 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 con-
        fronted Jarrard about the incident and told him that he could con-
        tinue 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 pro-
        gram, 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 with-
        out incident.
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        23-10332                   Opinion of the Court                                5

                                               B
               At the end of 2015, the Sheriff’s Office temporarily sus-
        pended 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 Pol-
        icy 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 teach-
        ing about baptism if he wanted to remain in the program.
               Jarrard attended a training about the First Policy and, in Jan-
        uary 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 in-
        mates, but because of his disruptive behavior toward other mem-
        bers 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 deten-
        tion center, baptism can wait until after release since it is not a requirement
        for salvation.”
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        6                          Opinion of the Court                       23-10332

        religious views” and because Moats and his staff believed that Jar-
        rard had “some mental health issues.”
               After his application was denied, Jarrard began a regular one-
        man vigil outside the Jail to protest his exclusion. On a few occa-
        sions, 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 de-
        claratory, injunctive, and monetary relief.3 As relevant here, he al-
        leged (1) that the Jail officials had retaliated against him for exercis-
        ing his First Amendment rights by excluding him from the volun-
        teer ministry program and (2) that the Jail’s baptism ban itself vio-
        lated 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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        23-10332                  Opinion of the Court                              7

        hold services or conduct programs in the jail” had to (1) “make
        written application to the Polk County Sheriff’s Office with sup-
        porting 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]” deter-
        mination or a timeline for that decision. Jarrard submitted an ap-
        plication 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 reli-
        gious 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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        8                          Opinion of the Court                        23-10332

        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 retal-
        iation 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 sum-
        mary judgment. For his part, Jarrard sought partial summary judg-
        ment 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 appli-
        cant’s request to join the volunteer ministry program could be de-
        nied. They “includ[ed] but [were] not limited to” the following—
        “[f ]ailure to completely fill out the application, falsifying the appli-
        cation, failure to attend training, background concerns, failure to


        5 Because 

(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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        23-10332                  Opinion of the Court                              9

        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 re-
        viewed on a first-come, first-served basis and that an applicant
        would receive a response within 30 days. 

.07.18.
               Given the revision, Jarrard amended his complaint to with-
        draw 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 Sec-
        ond 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, 

        6 Although none of Jarrard’s successive complaints expressly invoked 

, the district court seems to have treated his claims for monetary dam-
        ages as grounded in that statute, and Moats and Sharp haven’t challenged that
        premise on appeal.
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        10                         Opinion of the Court                         23-10332

        (1968), and its progeny. 7 Applying that test, the court concluded (1)
        that Jarrard’s ministry comprised “employee speech . . . not pro-
        tected 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 Pickering test, 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” Jar-
        rard’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 judg-
        ment 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, 

 (1983),

        and Garcetti v. Ceballos, 

 (2006). For ease of reference, we will refer
        to the analytical framework that these cases created and applied as the “Pick-
        ering” 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 summary-
        judgment briefing. Jarrard v. Moats, No. 4:20-CV-2-MLB, 

,
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        23-10332                   Opinion of the Court                                 11

                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 pro-
        tected 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 min-
        istry 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, 

 (quotation marks and citation omitted). Summary judgment is
        appropriate only “where there are no genuine issues of material fact,” 

 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, 

 (1908), generally permits a federal court to order state-government
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        12                         Opinion of the Court                         23-10332

                                                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 pro-
        tected speech.” Brannon v. Finkelstein, 

 (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 Appel-
        lees 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 inter-
        ference with [his] discretion.” 

. 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., 

 (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, 

, 383–84 (1987).
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        23-10332                  Opinion of the Court                             13

        Jarrard’s speech wasn’t constitutionally protected, the court ap-
        plied the Pickering test 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 deter-
        mining whether Jarrard’s speech was “constitutionally protected”
        and that, instead, Jarrard’s claim should be evaluated under the “fo-
        rum 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 Amend-

        ment protection, the employee must have (1) spoken as a citizen and (2) ad-
        dressed matters of public concern.” Boyce v. Andrew, 

 (11th
        Cir. 2007).
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        14                     Opinion of the Court                  23-10332

        government may constitutionally impose in each. See 

,
        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., 

 (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 be-
        cause, 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.” 

. In par-
        ticular, 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.” 

               Jarrard, of course, wasn’t technically a Polk County em-
        ployee—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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        23-10332                Opinion of the Court                           15

        it, he was a de facto employee for Pickering purposes. For the fol-
        lowing reasons, we conclude that he was not.
                First, and most importantly, Pickering’s logic doesn’t com-
        fortably 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, 

;
        see also, e.g., Connick v. Myers, 

 (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, 

 (2006) (“Government
        employers, like private employers, need a significant degree of con-
        trol over their employees’ words and actions; without it, there
        would be little chance for the efficient provision of public ser-
        vices.”). That rationale explains the circumstances in which the Su-
        preme Court and this Court have extended Pickering beyond tradi-
        tional employment relationships. In applying the Pickering analysis
        to government contractors, for instance, the Supreme Court ob-
        served 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, 

 (1996). So too, in ex-
        tending Pickering to an unpaid political appointee to a public advi-
        sory board, we emphasized the government’s interest “in
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        16                         Opinion of the Court                         23-10332

        promoting the efficiency of the public services it performs.”
        McKinley v. Kaplan, 

, 1149 & n.5 (11th Cir. 2001). 12
               This delivery-of-government-services rationale doesn’t read-
        ily apply to Jarrard’s participation in a volunteer prison ministry.
        Perhaps most importantly, providing religious instruction and pas-
        toral care to inmates—quite unlike, say, collecting and removing
        trash, or, for that matter, perhaps even providing chaplains to ser-
        vicemembers—is not a public service that the government has tra-
        ditionally provided. Nor could it be, for that matter, without risk-
        ing a violation of the Establishment Clause, which “mandates gov-
        ernmental neutrality between religion and religion, and between
        religion and nonreligion.” McCreary Cnty. v. ACLU of Ky., 

 (2005) (quoting Epperson v. Arkansas, 

, 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, 

        (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-prece-
        dential. 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, 

 (1978) (“[T]here are a number of state and municipal
        functions . . . which have been administered with a greater degree of exclusiv-
        ity by States and municipalities than has the function of so-called ‘dispute res-
        olution,” including “such functions as education, fire and police protection,
        and tax collection.”). And indeed, the underlying facts of Rodin made our as-
        sumption even more reasonable, in that the municipality there was in the pro-
        cess of converting its volunteer fire department into a “semi-professional one”
        comprising both volunteer and paid firefighters. 

.
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        23-10332                 Opinion of the Court                             17

        (1968)). Moreover, and relatedly, in his position as a volunteer min-
        ister 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 minis-
        try 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 empha-
        sized that under the Second, Third, and Fourth Policies, applicants
        like Jarrard signed the same confidentiality agreements that em-
        ployees 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, 

 (N.D. Ill. June 25, 2013),
        and Mayfield v. City of Oakland, 

 (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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        18                     Opinion of the Court                 23-10332

        criminal history checks. Especially when weighed against the
        countervailing considerations that we’ve discussed, we aren’t per-
        suaded that these requirements made Jarrard a de facto employee
        for Pickering purposes. For one thing, the government imposes sim-
        ilar 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 be-
        came one.
                                       * * *
              Because we conclude that neither Pickering’s theoretical un-
        derpinnings 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 par-
        ties here vigorously dispute whether the Polk County Jail’s volun-
        teer ministry program was a limited public forum, see Br. of Appel-
        lant 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
USCA11 Case: 23-10332         Document: 61-1         Date Filed: 09/16/2024          Page: 19 of 56




        23-10332                   Opinion of the Court                                 19

        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, 

, 478 (2014) (traditional public); see
        also Perry, 

 (designated public); Rosenberger, 515 U.S. at
        828–29 (limited public); Perry, 

 (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 ex-
        pression 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-dis-

        criminatory speech restrictions are per se invalid. See Members of the City Coun-
        cil v. Taxpayers for Vincent, 

 (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 (stat-
        ing 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.
USCA11 Case: 23-10332     Document: 61-1      Date Filed: 09/16/2024     Page: 20 of 56




        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 un-
        der 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 am-
        ple evidence that, if credited, indicates that Moats and Sharp disa-
        greed 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 discus-
        sion 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 ex-
        clusion 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 de-
        cisions at the Jail—including the decision to ban baptisms alto-
        gether—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-discrimina-
        tory motive creates factual dispute—which, of course, counsels
        against summary judgment, not in its favor.
USCA11 Case: 23-10332     Document: 61-1      Date Filed: 09/16/2024     Page: 21 of 56




        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 appro-
        priate content-based restriction of messages that significantly agitate
        inmates,” as opposed to a viewpoint-based restriction. Br. of Ap-
        pellees 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 con-
        clude 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 minis-
        try 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 cre-
        ate problems for jail administrators.” Even if we were to indulge
        those assertions despite the contrary evidence that Jarrard has put
USCA11 Case: 23-10332        Document: 61-1        Date Filed: 09/16/2024        Page: 22 of 56




        22                        Opinion of the Court                      23-10332

        forward, 15 and even assuming that they constitute compelling gov-
        ernmental 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 address-
        ing a potentially contentious topic and let the inmates decide
        whether they wanted to attend; indeed, the Second Policy had con-
        tained a similar provision explaining that a deputy would escort
        from religious services any inmate not wishing to participate. Sec-
        ond Policy, 5.23.II.H. So too, they could have allowed other volun-
        teer 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 indi-
        cation 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 ortho-
        dox in . . . religion.” West Virginia Bd. of Educ. v. Barnette, 

 (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.
USCA11 Case: 23-10332       Document: 61-1       Date Filed: 09/16/2024       Page: 23 of 56




        23-10332                 Opinion of the Court                           23

        Jarrard from the ministry program. Because that exclusion vio-
        lated Jarrard’s “constitutionally protected” speech, we hold that Jar-
        rard has met his burden under the first prong of the test that gov-
        erns his First Amendment retaliation claim. Accordingly, we re-
        verse 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, 

.
                                            B
               Jarrard separately argues that the Jail’s Second and Third Pol-
        icies violated the First Amendment because they provided no
        meaningful standards for the evaluation of volunteer ministry ap-
        plications 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 over-
        come 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 licens-
        ing 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., 

 (11th
        Cir. 2020) (quotation marks and citation omitted); see also City of
        Lakewood v. Plain Dealer Publ’g Co., 

, 755–56 (1988). This
USCA11 Case: 23-10332      Document: 61-1       Date Filed: 09/16/2024      Page: 24 of 56




        24                      Opinion of the Court                   23-10332

        “unbridled discretion” doctrine is grounded in the notion that
        “[e]xcessive discretion . . . is constitutionally suspect because it cre-
        ates the opportunity for undetectable censorship and signals a lack
        of narrow tailoring.” Burk v. Augusta-Richmond Cnty., 

 (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[deci-
        sionmaker’s] decision.” Tracy, 

 (quotation marks and
        citation omitted). So, for example, we held in Burk that a permit
        policy unlawfully granted municipal decisionmakers unbridled dis-
        cretion 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 explain-
        ing the term “satisfactory.” 

; see also Young Israel of
        Tampa, Inc. v. Hillsborough Area Reg’l Transit Auth., 

,
        1346–47 (11th Cir. 2024) (assuming without deciding that city’s bus
        system’s advertising space was a non-public forum and then hold-
        ing 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 chan-
        neled administrators’ decisionmaking because it limited—among
        other things—their discretion in determining the location and
        length of a speaker’s presentation. 

, 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
USCA11 Case: 23-10332      Document: 61-1      Date Filed: 09/16/2024     Page: 25 of 56




        23-10332               Opinion of the Court                         25

        [an official] must make a decision on a permit application.” Barrett
        v. Walker Cnty. Sch. Dist., 

 (11th Cir. 2017).
               “Our precedents recognize that the unbridled-discretion
        doctrine applies to prior restraints.” 

 And although the term
        “prior restraint” calls to mind government officials censoring news-
        papers and magazines, see, e.g., Near v. Minnesota, 

        (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, 

 (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 licens-
        ing or permitting scheme, [was] a prior restraint . . . because it pre-
        vent[ed] members of the public from speaking . . . unless they
        compl[ied] with the Policy’s requirements.” 

               For similar reasons, the Jail’s Second and Third Policies are
        subject to the unbridled-discretion doctrine. Both policies oper-
        ated as prior restraints because they restricted would-be volunteer
        ministers from engaging in expression without government ap-
        proval. Both needed, therefore, to entail “narrowly drawn, reason-
        able, and definite standards to guide” administrators’
USCA11 Case: 23-10332        Document: 61-1         Date Filed: 09/16/2024        Page: 26 of 56




        26                        Opinion of the Court                       23-10332

        decisionmaking. Tracy, 

 (quotation marks and cita-
        tion omitted). They did not. 16
               The Second Policy’s language pertaining to would-be-volun-
        teer applications read as follows:
               Clergymen and religious advisors wishing to hold ser-
               vices or conduct programs in the jail must make writ-
               ten application to the Polk County Sheriff’s Office
               with supporting documentation, attend a training
               session and then be approved by the Jail Administra-
               tor.

        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 ser-
               vices or conduct programs in the jail must submit a
               volunteer application. Members of the clergy al-
               lowed 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 ra-
        ther its practical operation.
USCA11 Case: 23-10332         Document: 61-1          Date Filed: 09/16/2024          Page: 27 of 56




        23-10332                    Opinion of the Court                                 27

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

.
               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] spe-
        cific 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 volunteer-
        related 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 guid-
        ance for decisionmakers, not applicants. It may well be that an aspir-
        ing volunteer minister had to dot Is and cross Ts on his application,
        but nothing in either policy constrained the Jail administrators’ de-
        cisions in reviewing his application. An applicant could check all
        the necessary boxes and yet, for reasons unknown, still have his ap-
        plication 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.” 

 (citing Forsyth Cnty. v. Nationalist
        Movement, 

 (1992) (explaining, in evaluating an unbridled-dis-
        cretion claim, that “we must consider the [government’s] authoritative con-
        structions of the ordinance, including its own implementation and interpreta-
        tion of it” (alteration in original))). That is to say, even if the face of a policy
        seems to vest administrators with unbridled discretion, its implementation his-
        tory might demonstrate otherwise. On the record before us, there is no such
        implementation-history evidence, so we take the policies at face value.
USCA11 Case: 23-10332     Document: 61-1     Date Filed: 09/16/2024    Page: 28 of 56




        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 be-
        cause the ministry program had been suspended. Id. at 32. But
        again, they’re missing the point. Even assuming that administra-
        tors 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 violat-
        ing 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’ deci-
        sionmaking 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 pur-
        poses, 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 dam-
        ages claims against Moats and Sharp are barred by qualified im-
        munity. 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
USCA11 Case: 23-10332      Document: 61-1      Date Filed: 09/16/2024     Page: 29 of 56




        23-10332               Opinion of the Court                         29

        right that was clearly established at the time of the challenged ac-
        tion.” Echols v. Lawton, 

 (11th Cir. 2019) (quota-
        tion 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 al-
        leged wrongful act occurred.” 

 (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 con-
        duct.” 

 (quoting Ashcroft v. al-Kidd, 

, 735 (2011)). We
        can consider the merits and clearly-established prongs in either or-
        der, and “an official is entitled to qualified immunity if the plaintiff
        fails to establish either.” Piazza v. Jefferson Cnty., 

        (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 ad-
        ministrators with unbridled discretion to approve or deny would-
        be 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 un-
        derstood that what he was doing violates that right.” Prosper v. Mar-
        tin, 

 (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 indistin-
        guishable 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, 

 (11th Cir. 2001), rev’d, 

 (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 neces-
        sity 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. 

 at 980–81. On review, the Supreme Court criticized
        the “materially similar” facts requirement as a “rigid gloss on the qualified im-
        munity standard” that “[was] not consistent with [that Court’s] cases.” Hope,
        

. Chastened, we articulated in short order additional means by
        which a plaintiff would show clearly established law. In Mercado v. City of Or-
        lando, 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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        23-10332                 Opinion of the Court                            31

                Needless to say, the first and third paths are narrow. Cases
        with genuinely “indistinguishable facts” are rare—and, in fact Jar-
        rard doesn’t even claim that any on-point, binding precedent would
        have put Moats and Sharp on notice that their conduct was uncon-
        stitutional. 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 trod-
        ding that path must show that a defendant’s conduct “lies so obvi-
        ously at the very core of what the [relevant constitutional provi-
        sion] prohibits that the unlawfulness of the conduct was readily ap-
        parent to the official, notwithstanding the lack of case law.” Loftus
        v. Clark-Moore, 

 (11th Cir. 2012) (alteration in
        original) (quotation marks and citation omitted). Our decision in
        Lee v. Ferraro, 

 (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 handcuff-
        ing and securing her—walked her around to the back of her car
        and slammed her head against the trunk. 

. We held that
        “no reasonable officer could have believed” that such “grossly dis-
        proportionate force” was legal. 

. However objectionable
        Moats and Sharp’s conduct, it doesn’t rise to that level.
               The second broad-principle category encompasses situa-
        tions in which our case law has sufficiently established a constitu-
        tional right that every reasonable officer would know his conduct


        conduct which so obviously violates that constitution that prior case law is
        unnecessary.” 

 (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 princi-
        ple to the specific facts of his case. Our recent decision in Acosta v.
        Miami-Dade County, 

 (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 of-
        ficer’s safety. 

 (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 

 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 

, 1241–42.
                                          2
               So, did Moats and Sharp violate clearly established law when
        they denied Jarrard’s applications (1) based on what we must as-
        sume (again, given the existing record and procedural posture) was
        their disagreement with his views about baptism, and (2) by apply-
        ing 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 discre-
        tion were clearly established—in particular, both were firmly
        grounded in “broad statement[s] of principle” expressly articulated
        in governing caselaw. Prosper, 

.
              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 govern-
        ment cannot discriminate in access to the forum on the basis of the
        government’s opposition to the speaker’s viewpoint.” Cook v. Gwin-
        nett Cnty. Sch. Dist., 

 (11th Cir. 2005); see also, e.g.,
        Perry, 

. 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 minis-
        try 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 retali-
        ation claim. 19 We reverse the district court’s contrary conclusion. 20

        19 Nor, of course, does qualified immunity shield Moats and Sharp from Jar-

        rard’s request for injunctive relief on his retaliation claim. See Pearson v. Calla-
        han, 

, 242–43 (2009) (observing that qualified immunity isn’t avail-
        able in Ҥ 1983 cases against individuals where injunctive relief is sought in-
        stead 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 re-
        quest 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. Respect-
        fully, though, we disagree. For starters, we don’t think that a qualified-im-
        munity 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 judge-
        created 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 deci-
        sionmakers like Moats and Sharp may not exercise unbridled dis-
        cretion in deciding who can (and can’t) speak. Our cases predating
        the promulgation of the Second and Third Policies make abun-
        dantly clear that any permitting-like scheme must entail both (1)
        substantive criteria to guide and cabin the decisionmakers’ discre-
        tion and (2) a timeline specifying how long those decisionmakers
        have to respond to applications. See, e.g., Burk, 

;
        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 em-
        ployee—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 minis-
        try program resemble a traditional government ‘job.’” Supra at 17.
        21 Contrary to the district court’s suggestion, we don’t think that Barrett is off-

        point for the reason that it involved a limited public forum rather than a non-
        public forum. Barrett “identified viewpoint discrimination as a particular evil
        with which we were concerned” in adjudicating unbridled-discretion claims,
        

, and as we have already explained, viewpoint discrimination
        is unlawful even in non-public fora. We also highlighted in Barrett that we had
USCA11 Case: 23-10332         Document: 61-1          Date Filed: 09/16/2024          Page: 35 of 56




        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 sub-
        ject to a permitting-like scheme that vested decisionmakers with
        unbridled discretion, we hold that the district court erred in grant-
        ing summary judgment to Moats and Sharp. Accordingly, we re-
        verse 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 air-
        port, the quintessential non-public forum, because of the risk of latent view-
        point discrimination. 

 (discussing Atlanta J. & Const. v. City of Atlanta
        Dep’t of Aviation, 

 (11th Cir. 2003)).
USCA11 Case: 23-10332   Document: 61-1   Date Filed: 09/16/2024   Page: 36 of 56
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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 sep-
        arately because I would affirm the part of the district court’s order
        concluding that Defendants Sheriff Johnny Moats and Chief Dep-
        uty Al Sharp are entitled to qualified immunity. To reach its con-
        trary 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, 

 (1968), establishes does not ap-
        ply to him. That conclusion may well be correct. But by itself, it’s
        not enough to overcome Moats and Sharp’s qualified-immunity de-
        fense.
                Even if the Majority Opinion is right that the Pickering frame-
        work doesn’t apply here, it has identified no precedent that clearly
        established that a volunteer prison chaplain does not act as a gov-
        ernment 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
USCA11 Case: 23-10332      Document: 61-1      Date Filed: 09/16/2024     Page: 38 of 56




        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 em-
        ployee and so was not subject to the Pickering framework. And Sec-
        tion 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 irre-
        sponsibly and the need to shield officials from harassment, distrac-
        tion, and liability when they perform their duties reasonably.” Pear-
        son v. Callahan, 

 (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, 

 (11th Cir. 2010) (cleaned up).
               The “clearly established” component has the effect of shield-
        ing from liability “all but the plainly incompetent or one who is
        knowingly violating the federal law.” Lee v. Ferraro, 

 (11th Cir. 2002) (citation omitted).
USCA11 Case: 23-10332      Document: 61-1      Date Filed: 09/16/2024      Page: 39 of 56




        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 state-
        ment of principle within the Constitution, statute, or case law,’ or
        (3) ‘conduct so egregious that a constitutional right was clearly vi-
        olated, even in the total absence of case law.’” Crocker v. Beatty, 

 (11th Cir. 2021) (quoting Lewis v. City of West Palm
        Beach, 

, 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, 

 (11th Cir.
        2018). Precedent from other jurisdictions cannot clearly establish
        the law in our Circuit. Gilmore v. Ga. Dep’t of Corr., 

,
        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, 

        (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 dam-
        ages.” Foy v. Holston, 

 (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
USCA11 Case: 23-10332      Document: 61-1      Date Filed: 09/16/2024     Page: 40 of 56




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

        with, Jarrard faced an uphill battle. We’ve said that “[i]t is particu-
        larly difficult to overcome the qualified immunity defense in the
        First Amendment context.” Gaines v. Wardynski, 

 (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, 

 (11th Cir. 2014) (quoting Castle v. Appalachian Tech.
        Coll., 

 (11th Cir. 2011)). And to be sure, the First
        Amendment presumptively protects many areas of expression. See
        United States v. Stevens, 

 (2010).
                But it does not presumptively protect a government em-
        ployee’s speech. See Pickering, 

. 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 gen-
        eral.” 

               So we apply a two-step framework that balances the state’s
        interest in effective governance against its employees’ interest in ex-
        ercising their First Amendment rights. See Alves v. Bd. of Regents,
        

, 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 defini-
        tion of a government employee is not exactly clear-cut. See Maj.
        Op. at 14–15, 17–18.
USCA11 Case: 23-10332        Document: 61-1        Date Filed: 09/16/2024        Page: 41 of 56




        23-10332           ROSENBAUM, J., Dissenting in Part                         5

                Jarrard’s damages claim succumbs to qualified immunity be-
        cause he can point to neither “case law with indistinguishable facts”
        nor “a broad statement of principle within the Constitution, stat-
        ute, or case law” that directs us to disregard Pickering’s framework.1
        Perez v. Suszczynski, 

 (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 dis-
        pel its application or prevail under its framework through clearly
        established law dooms both Jarrard’s retaliation and unbridled-dis-
        cretion claims.
               No “broad statement of principle” identifies who is a gov-
        ernment 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,
        

, 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 “in-
        tensely fact-specific and do not lend themselves to clear, bright-line
        rules.” Maio v. Sipple, 

, 1354 (11th Cir. 2000) (quoting
        Martin v. Baugh, 

, 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, 

. 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—in-
        cluding to government volunteers. Take Versage v. Township of Clin-
        ton, 

 (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. 

. The Third
        Circuit applied the Pickering framework to evaluate the volunteer’s
        claim. See 

 It reasoned that “similar First Amendment concerns
        [that apply in a government-employee situation] would apply in a
        volunteer context.” 

               Other courts have likewise applied the Pickering framework
        to volunteers’ First Amendment claims. See, e.g., LeFande v. District
        of Columbia, 

 (D.C. Cir. 2016) (applying Pickering
        to First Amendment claim of Metropolitan Police Department Re-
        serve Corps volunteer, an unpaid volunteer who assisted full-time
        officers of the Metropolitan Police Department in providing law-
        enforcement services); Janusaitis v. Middlebury Vol. Fire Dep’t, 

 (2d Cir. 1979) (applying Pickering to volunteer fire-
        fighter’s First Amendment claim); Goldstein v. Chestnut Ridge Vol.
        Fire Co., 

, 339, 351–56 (4th Cir. 2000) (applying Pickering
        to volunteer firefighter’s First Amendment claim); Harnishfeger v.
        United States, 

, 1113–19 (7th Cir. 2019) (applying
        Pickering to Volunteer in Service to America (VISTA) volunteer’s
        First Amendment claim); Shands v. City of Kennett, 

, 1342–48 (8th Cir. 1993) (applying Pickering to First Amend-
        ment claims of volunteer firefighters); Hyland v. Wonder, 972 F.2d
USCA11 Case: 23-10332      Document: 61-1      Date Filed: 09/16/2024     Page: 43 of 56




        23-10332         ROSENBAUM, J., Dissenting in Part                   7

        1129, 1132, 1136–40 (9th Cir. 1992) (applying Pickering to probation-
        department volunteer’s First Amendment claim).
               And at least two district courts have applied Pickering to vol-
        unteer chaplains specifically. See, e.g., Mustapha v. Monken, 

, 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,
        

, at *1, *4–6 (N.D. Cal. Aug. 6, 2007) (applying
        Pickering to volunteers for city’s volunteer police chaplaincy pro-
        gram).
               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 be-
        lieve that Pickering governs the analysis when it comes to govern-
        ment volunteers, it’s hard to see how it could have been clearly es-
        tablished that Pickering does not apply here.
               The Majority Opinion says Jarrard couldn’t have been a gov-
        ernment 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. 

 at 16–17. And though that
        makes some sense, courts have applied Pickering to full-time gov-
        ernment chaplains or ministers. See, e.g., Donahue v. Staunton, 

 (7th Cir. 1972); Baz v. Walters, 

 (7th
        Cir. 1986); Akridge v. Wilkinson, 

 (6th Cir.
        2006). So I don’t see how the Majority Opinion’s point in this re-
        spect clearly establishes that Pickering doesn’t apply to government
        chaplains (salaried or voluntary).
USCA11 Case: 23-10332     Document: 61-1      Date Filed: 09/16/2024     Page: 44 of 56




        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, 

 (1979) (explaining jail “administra-
        tors . . . 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, 

 (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 Pick-
        ering doesn’t apply comes down to the weighing of what it de-
        scribes as the “particulars of Polk County’s volunteer ministry pro-
        gram 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 appli-
        cants “signed the same confidentiality agreements that employees
        signed, executed waivers of liability, and underwent criminal his-
        tory checks.” 

 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 “particu-
        lars of Polk County’s volunteer ministry program and Jarrard’s par-
        ticipation 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, 

,
        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, 

 (1978)).




        2 The Majority Opinion asserts that Pickering couldn’t have muddied the wa-
        ters 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 fash-
        ioned 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, 

 (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, 

 (7th Cir. 2015). So the ques-
        tion 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 gov-
        ernment 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.
USCA11 Case: 23-10332      Document: 61-1       Date Filed: 09/16/2024    Page: 46 of 56




        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 ap-
        plication 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, 

. 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 dif-
        ferently from any other member of the general public” by balanc-
        ing the “public and private interests articulated in Pickering.” 

 at
        1159–60 (quoting Garcetti v. Ceballos, 

 (2006)). If
        the employee prevails at both steps, then the First Amendment pro-
        tects the employee’s speech, and we proceed to the merits of his
        claim. Moss v. City of Pembroke Pines, 

 (11th Cir.
        2015).
               As I’ve noted, plaintiffs can struggle to pierce qualified im-
        munity’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 unnec-
        essary.” Gaines, 

 (quoting Terrell v. Smith, 

, 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 Pickering-
        Connick 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 con-
        cern. See Maj. Op. at 31. And Jarrard identifies no case clearly es-
        tablishing 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, 

, 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-exer-
        cise 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 estab-
        lished. The Supreme Court recently recognized that the question
        “whether the Free Exercise Clause may sometimes demand a dif-
        ferent analysis at the first step of the Pickering-Garcetti framework”
        has not yet been answered. Kennedy v. Bremerton Sch. Dist., 

, 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, 

 (11th Cir. 2007), we ex-
        pressed “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 sin-
        cere religious beliefs. 

 at 1294–99. So Watts does not help Jar-
        rard.
               And in Walden v. Centers for Disease Control & Prevention, 

 (11th Cir. 2012), we explained that Pickering gov-
        erned Walden’s free-exercise claim. That said, we didn’t apply Pick-
        ering because Walden could not provide any evidence that the de-
        fendants burdened her sincerely held religious beliefs. 

               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-exer-
        cise claim is involved. See Loggins v. Thomas, 

        (11th Cir. 2011) (applying 

(d)(1) and noting that
        implications and dicta cannot “clearly establish federal law”).




        3 Jarrard also cites Meriwether v. Hartop, 

, 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.
USCA11 Case: 23-10332       Document: 61-1       Date Filed: 09/16/2024       Page: 49 of 56




        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-exer-
        cise claim is involved, Jarrard must show that it was clearly estab-
        lished 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 con-
        cern. So I do not proceed to Pickering’s second step.
             1. At the time of Moats and Sharp’s actions, it was not clearly es-
                        tablished 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 responsi-
        bilities” or was made “pursuant to” those responsibilities. Garcetti,
        

; see also Lane v. Franks, 

, 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, 

 (11th Cir. 2009) (citing Garcetti, 

). 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 citi-
        zen 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 princi-
        ple leading us to that conclusion, Gains, 

. He has
        not done so.
                For instance, Jarrard relies on and Cambridge Christian School
        v. Florida High School Athletic Association (“Cambridge Christian I”),
        

 (11th Cir. 2019), and Gundy v. City of Jacksonville,
        

 (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, 

.
               And even considering those cases, they couldn’t have put
        Moats and Sharp on notice that any religious speech Jarrard en-
        gaged in as part of the program necessarily would not have quali-
        fied 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, 

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

 (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. In-
        stead, we applied a separate test that balanced three factors—“his-
        tory, endorsement, and control”—to determine whether, based on
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        23-10332         ROSENBAUM, J., Dissenting in Part                   15

        totality of the circumstances, the non-employee’s speech
        amounted to government speech. Cambridge Christian I, 

; Gundy, 

. 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, 

 (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 Dis-
        trict” and away from his school at the time he made the remarks.
        

. He instead spoke, we said, “in his capacity as president
        of ” the Georgia Association of Educators. 

 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 vi-
        olated Jarrard’s rights.
                That leaves Jarrard with only the broad claim that no reason-
        able 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, 

 (citation omit-
        ted), that religious speech can never qualify as government speech.
        In fact, as recently as September 3, 2024, in our follow-up to Cam-
        bridge 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 ___, 

, 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, 

 (1962). Plus, that government chaplains have official responsi-
        bilities they may speak under further shows that the government is
        capable of engaging in religious speech. See Baz, 

        (rejecting the argument that the V.A. violated “the First Amend-
        ment 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, 

 (“The proper
        inquiry is a practical one.”); Cambridge Christian I, 

        (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,
        

 (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 en-
        gaged in as part of the Jail’s program would not have been in his
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        23-10332            ROSENBAUM, J., Dissenting in Part                           17

        official capacity. So Moats and Sharp are entitled to qualified im-
        munity.
             2. At the time of Moats and Sharp’s actions, it was not clearly es-
                  tablished 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 con-
        cern ‘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 in-
        terest and of value and concern to the public.’” United States v.
        Fleury, 

 (11th Cir. 2021) (quoting Snyder v. Phelps,
        

 (2011)). In undertaking this inquiry, we consider
        the “content, form, and context” of a government employee’s
        speech. O’Laughlin v. Palm Beach County, 

 (11th
        Cir. 2022). Content is “the most important factor.” Mitchell v. Hills-
        borough County, 

 (11th Cir. 2006). But again, we
        review “the record as a whole.” 

.
              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 ar-

        gument 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., 

 (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, 

, clearly establish-
        ing those propositions.
               Jarrard rightfully points out that the “public concern re-
        quirement exists because that category of expression is at the core
        of the First Amendment’s protections.” Grigley v. City of Atlanta,
        

 (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., 

,
        966 (9th Cir. 2011); see also Brown v. Polk Cnty., 

 (8th
        Cir. 1995); Adams v. Trs. of Univ. of N.C.-Wilmington, 

 (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 Elev-
        enth Circuit. Gilmore, 111 F.4th at 1135–36.
               And even if they could, it’s not clear that a “robust consen-
        sus” of them, District of Columbia v. Wesby, 

, 65 (2018),
        supports the proposition that religious speech inherently, rather
        than contextually, addresses a matter of public concern. For in-
        stance, Jarrard cites Scarbrough v. Morgan County Board of Education,
        

 (6th Cir. 2006). But there, the Sixth Circuit con-
        cluded 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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        23-10332         ROSENBAUM, J., Dissenting in Part                   19

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

 (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, 

 (5th Cir. 2001) (“Alt-
        hough 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 pub-
        lic 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 reli-
        gious speech necessarily touches on a matter of public concern.
        See, e.g., Cook v. Gwinnett Cnty. Sch. Dist., 

 (11th
        Cir. 2005) (safety of children in school); Peterson v. Atlanta Hous.
        Auth., 

, 916 (11th Cir. 1993) (pre-leasing practices and
        maintenance problems in Atlanta Housing Authority buildings);
        Rankin v. McPherson, 

 (1987) (policies of the Presi-
        dent’s administration); Grigley, 

 (pursuing criminal
        charges). And none of them confronted speech in a jail or prison
        setting. See, e.g., Connick v. Myers, 

 (1983) (district
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        20               ROSENBAUM, J., Dissenting in Part         23-10332

        attorney’s office); Mitchell, 

 (county commissioner
        hearing).
                The First Amendment questions that Jarrard’s circum-
        stances (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, 

. And as a
        result, they are entitled to qualified immunity. See 

                                       * * *
               At bottom, Moats and Sharp assert that Jarrard was a gov-
        ernment employee whose speech fell within the scope of his em-
        ployment 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 qual-
        ified immunity. For that reason, I would affirm the district court’s
        grant of summary judgment in their favor on that issue.