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                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 17-13843
                              ________________________

                      D.C. Docket No. 4:08-cv-00023-WTM-GRS



DOUGLAS ECHOLS,

                                                                       Plaintiff-Appellant,
                                            versus

SPENCER LAWTON,
in his individual capacity,

                                                                     Defendant-Appellee.

                              ________________________

                      Appeal from the United States District Court
                         for the Southern District of Georgia
                             _______________________

                                     (January 25, 2019)

Before TJOFLAT, WILLIAM PRYOR, and GILMAN, * Circuit Judges.

WILLIAM PRYOR, Circuit Judge:




*
 Honorable Ronald L. Gilman, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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      This appeal requires us to decide whether a district attorney enjoys qualified

immunity from a complaint that he defamed a former prisoner in retaliation for

seeking legislative compensation for his wrongful convictions. After Douglas

Echols served seven years of imprisonment for kidnapping and rape, a test revealed

that his DNA did not match the semen recovered from the victim. Echols presented

this evidence to Spencer Lawton, the local district attorney, who had a state crime

lab confirm the test results. A Georgia trial court later vacated Echols’s

convictions. After Lawton declined to retry Echols, the trial court dismissed the

indictment against him. A state legislator then introduced a bill to compensate

Echols for his wrongful convictions. But Lawton wrote in opposition to the bill and

allegedly falsely stated that Echols remained under indictment—a libel per se. See

Harcrow v. Struhar, 511 S.E.2d 545, 546 (Ga. Ct. App. 1999). After the bill failed,

Echols sued Lawton for violating his rights under the First and Fourteenth

Amendments, 42 U.S.C. § 1983. The district court dismissed Echols’s complaint

based on qualified immunity. Although we conclude that Echols’s complaint states

a valid claim of retaliation under the First Amendment, we agree with the district

court that Lawton enjoys qualified immunity because Echols’s right was not

clearly established when Lawton violated it. We affirm.




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                                I. BACKGROUND

       In 1986, three unknown assailants kidnapped and raped Donna Givens in

Savannah, Georgia. Although Douglas Echols professed his innocence, a jury

convicted him of the kidnapping and rape of Givens. He was sentenced to 15 years

of imprisonment.

       After Echols served seven years of his sentence, a DNA test revealed that

the semen recovered from Givens did not match Echols’s DNA. Echols presented

this evidence to Spencer Lawton, the district attorney for Chatham County, who

also served in that role when Echols was convicted. Lawton ordered the state crime

lab to conduct additional testing, which confirmed that the semen was not from

Echols.

       A Georgia trial court then vacated Echols’s convictions and granted him a

new trial. Instead of retrying Echols, the state entered a nolle prosequi on the

charges of kidnapping and rape, and the trial court dismissed the indictment against

him.

       Four years later, after the Georgia Claims Advisory Board recommended

compensation for Echols, a legislator in the Georgia General Assembly introduced

a bill to compensate him with $1.6 million for his wrongful convictions. But before

the General Assembly voted on the bill, Lawton sent a letter and memorandum to

several legislators opposing Echols’s compensation. Echols “was informed by the



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legislature that [the bill] would not pass specifically due to . . . Lawton’s

correspondence.” Indeed, the legislators with whom Lawton corresponded blocked

the bill from reaching the floor of the General Assembly, and the bill failed.

      Echols then filed a complaint against Lawton, which he later amended. In

his amended complaint, Echols alleged that Lawton violated his rights under the

First and Fourteenth Amendments, 42 U.S.C. § 1983, by providing “false

information” and “intentionally misleading legal advice” to the legislators. Echols

alleged that Lawton told the legislators that Echols’s convictions “were proper and

fitting, even though [his] conviction[s] had been vacated.” Lawton also told the

legislators not to presume Echols innocent of kidnapping and rape because the

vacatur of his convictions did not establish his innocence. Lawton urged the

legislators not to compensate Echols unless he proved his innocence. And Lawton

told the legislators that Echols remained under indictment for kidnapping and rape

even though the indictment had been dismissed four years earlier when the state

entered a nolle prosequi on the charges. Echols complained that Lawton interfered

with his freedom of speech and right to petition the government and retaliated

against him for exercising those rights. And Echols complained that Lawton

violated his right to due process of law by depriving him of a presumption of

innocence.




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      The district court granted Lawton’s motion to dismiss Echols’s complaint.

The district court ruled that Echols’s complaint failed to state a claim under either

the First or Fourteenth Amendments. It ruled that Lawton’s letter did not amount to

a threat, coercion, or intimidation, so Echols failed to state a claim of First

Amendment retaliation. And it ruled that Echols failed to state a claim under the

Due Process Clause of the Fourteenth Amendment because he failed to allege

either a violation of a fundamental liberty or government conduct that shocks the

conscience. The district court also ruled that Lawton enjoys qualified immunity

because Echols’s complaint failed to allege the violation of a right that was clearly

established when Lawton sent his letter.

                           II. STANDARD OF REVIEW

      We review de novo a dismissal of a complaint for failure to state a claim.

Mills v. Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008). We accept the

factual allegations in the complaint as true and construe them in the light most

favorable to the plaintiff. Id. “To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We also review de novo a grant

of qualified immunity. Courson v. McMillian, 939 F.2d 1479, 1486 (11th Cir.

1991).



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                                 III. DISCUSSION

      We divide our discussion in two parts. First, we explain that Lawton enjoys

qualified immunity from the claim that he retaliated against Echols for exercising

his rights under the First Amendment. Second, we explain that Lawton also enjoys

qualified immunity from the claim that he violated Echols’s right to due process of

law because the general rubric of substantive due process cannot be used to govern

a claim that is otherwise covered by the specific text of the First Amendment.

      A. Lawton Enjoys Qualified Immunity from Echols’s Claim of Retaliation
                          Under the First Amendment.

      Lawton contends that he is entitled to qualified immunity from Echols’s

complaint of retaliation in violation of the First Amendment. “Qualified immunity

shields public officials from liability for civil damages when their conduct does not

violate a constitutional right that was clearly established at the time of the

challenged action.” Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016). To

obtain a dismissal based on qualified immunity, “a government official must first

establish that he was acting within the scope of his discretionary authority when

the alleged wrongful act occurred.” Id. If he was, the burden then shifts to the

plaintiff to overcome the official’s qualified immunity. Mikko v. City of Atlanta,

857 F.3d 1136, 1144 (11th Cir. 2017). To overcome qualified immunity, a plaintiff

must “plead[] facts showing (1) that the official violated a statutory or




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constitutional right, and (2) that the right was ‘clearly established’ at the time of

the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

      Echols argues that Lawton acted outside the scope of his discretionary

authority when he sent the letter to the legislators, but we disagree. To be sure, “[a]

prosecutor’s most basic duty is to prosecute cases in his jurisdiction on behalf of

the State.” Mikko, 857 F.3d at 1144. But we have explained “[r]elated to that duty,”

a prosecutor’s discretionary authority also includes “communicat[ions] with other

law enforcement agencies, officials, or employees about current or potential

prosecutions.” Id. Prosecutors must and do regularly communicate with legislators

about a variety of issues related to their offices and the criminal justice system.

Those issues may involve administrative and financial matters, public safety and

criminal justice policies, and past, pending, or future prosecutions. Lawton’s letter

addressed the public fisc and both a past prosecution and a potential future

prosecution, so his communication with legislators was clearly “within, or

reasonably related to the outer perimeter of [his] discretionary duties.” Id.

(emphasis omitted) (citation omitted). Because Lawton satisfied his initial burden

to invoke qualified immunity, the burden shifted to Echols.

      We agree with the district court that Lawton enjoys qualified immunity from

Echols’s complaint, but we do so for a different reason. In contrast with the district

court, we conclude that Echols’s complaint states a valid claim that Lawton



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violated a right protected by the First Amendment. But even so, that right was not

clearly established when Lawton allegedly violated it.

   1. Echols Stated a Claim of Retaliation in Violation of the First Amendment.

       The First Amendment provides that “Congress shall make no

law . . . abridging the freedom of speech, or . . . the right . . . to petition the

government for a redress of grievances.” U.S. Const. Amend. I. The Amendment

protects “not only the affirmative right to speak, but also the right to be free from

retaliation by a public official for the exercise of that right.” Suarez Corp. Indus. v.

McGraw, 202 F.3d 676, 685 (4th Cir. 2000). To state a claim for First Amendment

retaliation, a plaintiff must allege that he engaged in protected speech, that the

official’s conduct adversely affected the protected speech, and that a causal

connection exists between the speech and the official’s retaliatory conduct. Bailey,

843 F.3d at 480–81. Only the second element is at issue in this appeal.

       When reviewing an official’s retaliatory conduct for adverse effect, we

consider whether his alleged conduct “would likely deter a person of ordinary

firmness from the exercise of First Amendment rights,” id. at 481, but we have

acknowledged that special concerns arise when an official’s “own First

Amendment rights are implicated” in the commission of an alleged constitutional

tort, Dixon v. Burke Cty., 303 F.3d 1271, 1275 (11th Cir. 2002) (citing Suarez

Corp., 202 F.3d at 687). Because Lawton allegedly retaliated through his own



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speech to members of the General Assembly, the district court considered whether

his speech amounted to “a threat, coercion, or intimidation intimating that

punishment, sanctions, or adverse regulatory action will imminently follow,” as

several of our sister circuits have done in similar cases. See, e.g., Suarez Corp., 202

F.3d at 687 (collecting cases); see also Mirabella v. Villard, 853 F.3d 641, 651 (3d

Cir. 2017); Mulligan v. Nichols, 835 F.3d 983, 990 (9th Cir. 2016); Goldstein v.

Galvin, 719 F.3d 16, 30 (1st Cir. 2013); Hutchins v. Clarke, 661 F.3d 947, 956 (7th

Cir. 2011); X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 70 (2d Cir. 1999); Colson v.

Grohman, 174 F.3d 498, 512 (5th Cir. 1999); Penthouse Int’l, Ltd. v. Meese, 939

F.2d 1011, 1015 (D.C. Cir. 1991). Our sister circuits have required that an

official’s retaliatory speech amount to a threat, coercion, or intimidation to

reconcile two competing rights: a plaintiff’s right to be free from retaliation for

exercising his First Amendment rights and an official’s right to engage in protected

speech. Suarez Corp., 202 F.3d at 687 n.13. But we need not resolve the difficult

question whether that test strikes the right balance under the First Amendment in

this appeal.

      Echols argues that Lawton’s speech presents an easier case because it

amounted to defamation. Defamation is among the “historic and traditional

categories of expression long familiar to the bar” that fall outside the protection of

the First Amendment. United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality



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opinion) (alteration adopted) (citation and internal quotation marks omitted).

Echols maintains that Lawton’s defamation of him raises no concerns about

competing First Amendment rights.

      Echols’s argument that Lawton defamed him raises two questions. First,

does Lawton’s alleged speech qualify as defamation? Second, if so, does the First

Amendment protect it?

      To state a claim for defamation under Georgia law, a plaintiff must allege

“(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged

communication to a third party; (3) fault by the defendant amounting at least to

negligence; and (4) special harm or the actionability of the statement irrespective

of special harm.” Mathis v. Cannon, 573 S.E.2d 376, 380 (Ga. 2002) (quoting

Restatement (Second) of Torts § 558 (Am. Law Inst. 1977)). A statement is not

actionable as defamation when it conveys a pure opinion, Gast v. Brittain, 589

S.E.2d 63, 64 (Ga. 2003), or a true statement of fact, O.C.G.A. § 51-5-6. When we

consider whether a statement is defamatory, we “read and construe the publication

as a whole, and in the sense in which the readers to whom it is addressed would

understand it.” Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002)

(citing Mead v. True Citizen, Inc., 417 S.E.2d 16, 17 (Ga. Ct. App. 1992)).

      Libel consists of the publication of defamatory statements in writing,

O.C.G.A. § 51-5-1, and some written statements are libel per se. Libel per se is



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actionable without proof of special harm. Cottrell v. Smith, 788 S.E.2d 772, 780–

81 (Ga. 2016).

      Libel per se includes “falsely stat[ing] . . . that a person has a criminal case

pending against him.” Harcrow, 511 S.E.2d at 546; Witham v. Atlanta Journal, 53

S.E. 105, 107 (Ga. 1906) (explaining that a statement that “in effect charges that

there are criminal cases pending against [the plaintiff]” is libel per se (internal

quotation marks omitted)); see also Cottrell, 788 S.E.2d at 780–81 (explaining that

a false statement imputing a crime to the plaintiff is libel per se). To establish libel

per se, the statement “must charge the commission of a specific crime punishable

by law” by “giv[ing] the impression that the crime is actually being charged

against the individual.” Cottrell, 788 S.E.2d at 781.

      Echols’s complaint alleges facts that would constitute libel per se. It alleges

that Lawton falsely stated in writing that Echols remained under indictment for

kidnapping and rape. To be sure, some of Lawton’s written statements convey

either his opinion or true statements of fact, but the legislators to whom Lawton

addressed his alleged writing would have understood it to state as a fact that Echols

stood charged of kidnapping and rape. That alleged statement was false because a

Georgia court had dismissed the indictment against Echols four years earlier. By

falsely stating that Echols “ha[d] a criminal case pending against him,” Lawton




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allegedly committed libel per se. Harcrow, 511 S.E.2d at 546. And libel per se is

actionable irrespective of special harm. Cottrell, 788 S.E.2d at 780–81.

      Because Echols’s complaint alleges that Lawton committed libel per se, we

next consider whether the alleged defamation is nevertheless protected by the First

Amendment. Defamation is unprotected when the speaker committed the tort with

actual malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)

(holding that a public official or public figure can recover damages for defamation

on a matter of public concern only if he proves that the speaker acted with actual

malice); Gertz v. Robert Welch, Inc., 418 U.S. 323, 348–49 (1974) (holding that,

although a private figure can recover damages for defamation if he proves the

speaker acted negligently, he must prove actual malice to recover presumed or

punitive damages if the statement was on a matter of public concern). Actual

malice exists when the speaker has knowledge that the statement is false or when

he speaks with reckless disregard for whether it is false. Sullivan, 376 U.S. at 280.

      Even if we were to assume that Echols was a public figure or that Lawton

spoke about a matter of public concern, Echols’s complaint alleges that Lawton

defamed him with actual malice. The complaint alleges that Lawton knew his

statement that Echols remained under indictment was false because Lawton’s

office had dismissed the charges against him after he presented DNA evidence to

Lawton and the state crime lab confirmed the results of the DNA test. Indeed, after



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Lawton declined to retry Echols, a Georgia court dismissed the indictment against

him. Because the complaint alleges that Lawton knew that Echols no longer

remained under indictment for kidnapping and rape, Lawton’s alleged defamatory

statement was made with actual malice.

      The First Amendment affords no protection to Lawton’s alleged libel of

Echols, so no “balance must be struck” here between the First Amendment rights

of a plaintiff alleging retaliation for his speech and an official who allegedly

retaliated through his own speech. Suarez Corp., 202 F.3d at 687 n.13. We must

instead determine only whether Lawton’s alleged libel violated Echols’s rights

under the First Amendment.

       We acknowledge that some of our sister circuits have held that defamation

is not actionable as retaliation in violation of the First Amendment, but their

decisions do not persuade us. These circuits have held that an official’s defamatory

speech by itself cannot constitute retaliation in violation of the First Amendment.

See id. at 687 (holding that an official’s speech, “even if defamatory,” does not

amount to retaliation unless it is a threat, coercion, or intimidation); Colson, 174

F.3d at 512 (holding that allegedly defamatory accusations, “while they may chill

speech, are not actionable under our First Amendment retaliation jurisprudence”);

Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1045 (9th Cir. 1994). The

decisions of both the Fourth and the Fifth Circuits provide little explanation for



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their reasoning, but they appear to rest on a misreading of Paul v. Davis, 424 U.S.

693 (1976), that originated in the Ninth Circuit, see Suarez Corp., 202 F.3d at 687,

688 & n.14; Colson, 174 F.3d at 512, 514 & n.10; Gini, 40 F.3d at 1045. In Gini,

the Ninth Circuit held that, under Paul, defamation is not actionable as retaliation

absent harm to a more tangible interest than reputation. 40 F.3d at 1045. But in

Paul, the Supreme Court addressed a distinct issue; it held that defamation

standing alone cannot deprive a plaintiff of his right to due process. 424 U.S. at

712. And whether defamation may constitute a violation of procedural due process

does not dictate whether it can constitute retaliation in violation of the First

Amendment. “The fact that reputation, the interest that the law of defamation

primarily protects, is not a form of constitutional liberty or property [under the Due

Process Clause] doesn’t mean that freedom of speech is not a constitutionally

protected liberty—as of course it is.” Tierney v. Vahle, 304 F.3d 734, 741 (7th Cir.

2002) (rejecting the Ninth Circuit’s reasoning in Gini).

      We reject the notion that the First Amendment protects an official’s

defamatory speech from a claim of retaliation. After a plaintiff engages in

protected speech, an official may retaliate with physical or economic harm, but he

may also retaliate with injurious speech. We agree with other circuits that

sometimes “defamation inflicts sufficient harm on its victim to count as

retaliation.” Id.; see also Zutz v. Nelson, 601 F.3d 842, 849 (8th Cir. 2010); Mattox



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v. City of Forest Park, 183 F.3d 515, 521 & n.3 (6th Cir. 1999). To decide whether

defamation in a particular case is retaliatory, the Sixth and Eighth Circuits apply

the same test of ordinary firmness as they would for any other claim of retaliation.

See Mezibov v. Allen, 411 F.3d 712, 721 (6th Cir. 2005) (“[T]he appropriate

formulation of the ‘adverse action’ prong in [this] case is whether the alleged

defamation would deter [a person] of ordinary firmness [in the plaintiff’s position]

from continuing [to engage in protected speech].”); see also Zutz, 601 F.3d at 849

(applying the ordinary firmness test to retaliation based on an official’s alleged

defamation). We agree with this approach and decline to create special rules for

claims of retaliation based on an official’s defamation.

      We next consider whether Lawton’s alleged libel per se would have deterred

a person of ordinary firmness from exercising his rights under the First

Amendment. See Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005); see,

e.g., Bloch v. Ribar, 156 F.3d 673, 681 (6th Cir. 1998) (holding that, in response to

a rape victim’s criticism of the investigation, a sheriff’s release of confidential and

humiliating information about the victim’s rape would likely deter a person of

ordinary firmness from engaging in protected speech). An objective standard

governs our inquiry. Bailey, 843 F.3d at 481. And “since there is no justification

for harassing people for exercising their constitutional rights,” the adverse effect

“need not be great.” Bennett, 423 F.3d at 1254 (citation omitted).



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      Lawton’s alleged libel per se that Echols remained under indictment would

likely deter a person of ordinary firmness from engaging in protected speech.

When Echols exercised his freedom of speech and right to petition the government

by seeking compensation for his wrongful convictions, Lawton allegedly retaliated

by defaming him. Lawton allegedly misled legislators to believe, as a matter of

fact, that Echols remained under indictment for kidnapping and rape—the very

charges for which Echols had been wrongly convicted. Lawton, more than any

other official, spoke with authority and credibility because he represented the state

in its earlier prosecution of Echols for kidnapping and rape and continued to hold

that office. But Lawton allegedly knew that the state had entered a nolle prosequi

on these charges four years earlier. See State v. Sheahan, 456 S.E.2d 615, 617 (Ga.

Ct. App. 1995) (“The entry of the nolle prosequi rendered the charge[s]

dead . . . .”). If a district attorney defamed a former prisoner for seeking legislative

compensation for his wrongful convictions and derailed that legislative effort, a

person of ordinary firmness would likely be deterred from speaking again on that

matter lest the prosecutor continue to tarnish his reputation or, worse, initiate a

wrongful prosecution. So Echols’s complaint states a claim of retaliation under the

First Amendment.




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      2. Lawton Did Not Violate a First Amendment Right That Was Clearly
                                   Established.

      To defeat Lawton’s qualified immunity, Echols must also prove that Lawton

violated a constitutional right that “was ‘clearly established’ at the time of the

challenged conduct.” Plumhoff v. Rickard, 572 U.S. 765, 778 (2014) (quoting al-

Kidd, 563 U.S. at 735). An official’s conduct violates clearly established law when

“the contours of [the] right are sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.” al-Kidd, 563 U.S.

at 741 (alterations adopted) (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). We consider the official’s conduct in “the specific context of the case,”

not as “broad general proposition[s].” Bailey, 843 F.3d at 484; see also al-Kidd,

563 U.S. at 742 (“We have repeatedly told courts . . . not to define clearly

established law at a high level of generality.”). And we ask the “salient

question . . . whether the state of law at the time of [an official’s conduct] provided

‘fair warning,’” to every reasonable official that the conduct clearly violates the

Constitution. Mikko, 857 F.3d at 1146.

      Echols can “demonstrate that the contours of the right were clearly

established in one of three ways.” Loftus v. Clark-Moore, 690 F.3d 1200, 1204

(11th Cir. 2012) (alteration adopted) (citation and internal quotation marks

omitted). First, he can point us to a “materially similar case [that] has already been

decided.” Id. (citation and quotation marks omitted). Second, he can point us to “a

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broader, clearly established principle that should control the novel facts of the

situation.” Id. (alterations adopted). Third, “the conduct involved in the case may

so obviously violate the [C]onstitution that prior case law is unnecessary.” Id. at

1205 (alterations adopted). Echols’s arguments fail under all of these approaches.

      Echols contends that an assortment of decisions clearly established Lawton’s

violation of his rights, but he cites no controlling precedent that would have

provided Lawton fair notice that his conduct would violate the First Amendment.

Although “[w]e do not require a case directly on point, [some] existing precedent

must have placed the . . . constitutional question beyond debate.” al-Kidd, 563 U.S.

at 741. We look only to binding precedent at the time of the challenged conduct—

that is, “the decisions of the Supreme Court, the Eleventh Circuit, or the highest

court of the state.” Bailey, 843 F.3d at 483–84. And a clearly established violation

of state law cannot put an official on notice that his conduct would also violate the

Constitution because “section 1983 protects only against violations of federally

protected rights.” Casnines v. Murchek, 766 F.2d 1494, 1501 n.10 (11th Cir. 1985).

      Echols relies either on precedents that are inapposite, see, e.g., United States

v. Noriega, 117 F.3d 1206, 1220 (11th Cir. 1997) (discussing a prosecutor’s duty

not to present false evidence during a judicial proceeding), or on decisions that are

not precedential, see, e.g., Lucas v. Parish of Jefferson, 999 F. Supp. 839 (E.D. La.

1998). And he relies on decisions from other jurisdictions, some of which even



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postdate Lawton’s alleged violation, see, e.g., Whitlock v. Brueggemann, 682 F.3d

567, 581 (7th Cir. 2012). Although Lawton clearly would have had fair notice that

his alleged writing constituted libel per se under state tort law, he would not have

understood that his alleged libel would have violated the First Amendment. No

controlling precedent put Lawton’s alleged violation beyond debate.

      Echols also relies on the broader principle “that the act of retaliation for the

exercise of constitutional rights is clearly established as a violation,” but this

general principle is too broadly stated to control our inquiry. “[S]ome broad

statements of principle in case law [that] are not tied to particularized facts . . . can

clearly establish law applicable in the future to different sets of detailed facts.”

Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002). But the principle must

establish with “obvious clarity” that “in the light of pre-existing law the

unlawfulness [of the official’s conduct is] apparent.” Id. at 1353. True, “it is

‘settled law’ that the government may not retaliate against citizens for the exercise

of First Amendment rights.” Bennett, 423 F.3d at 1256. But that general principle

does not resolve with “obvious clarity” that defamation may constitute retaliation

in violation of the First Amendment. See also Reichle v. Howards, 566 U.S. 658,

665 (2012) (rejecting the argument that “the general right to be free from

retaliation for one’s speech” clearly establishes a violation of the First

Amendment).



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      Echols also fails to persuade us that Lawton’s conduct “so obviously

violate[d] the [C]onstitution that prior case law is unnecessary.” Loftus, 690 F.3d at

1205. “This narrow category encompasses those situations where the official’s

conduct lies so obviously at the very core of what the relevant constitutional

provision prohibits that the unlawfulness of the conduct was readily apparent to the

official, notwithstanding the lack of case law.” Id. (alteration adopted) (internal

quotation marks omitted) (quoting Terrell v. Smith, 668 F.3d 1244, 1257 (11th Cir.

2012)). “[I]n the absence of controlling precedent, cases decided outside this

Circuit can buttress our view that the applicable law was not already clearly

established” because “[w]e must not hold [officials] to a higher standard of legal

knowledge than that displayed by the federal courts in reasonable and reasoned

decisions.” Youmans v. Gagnon, 626 F.3d 557, 565 (11th Cir. 2010).

      Lawton’s conduct does not fall within this “narrow category.” As we have

explained, our sister circuits are divided over whether an official’s defamatory

speech is actionable as retaliation under the First Amendment. It has certainly not

been obvious to the federal courts that an official’s defamatory speech lies at the

core of what the First Amendment prohibits. “[W]here judges thus disagree on a

constitutional question,” we cannot “expect that reasonable [officials] know more

than reasonable judges about the law.” Id. (citations and quotation marks omitted).




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So we cannot say that it would have been “readily apparent” to every reasonable

official that Lawton’s alleged defamation violated the First Amendment. Id.

      Critics of the doctrine of qualified immunity condemn “letting [an] official

duck consequences for bad behavior.” Zadeh v. Robinson, 902 F.3d 483, 498

(Willett, J., concurring dubitante) (5th Cir. 2018); William Baude, Is Qualified

Immunity Unlawful?, 106 Calif. L. Rev. 45 (2018). And we too condemn Lawton’s

alleged conduct. But the Supreme Court has long ruled that qualified immunity

protects a badly behaving official unless he had fair notice that his conduct would

violate the Constitution, District of Columbia v. Wesby, 138 S. Ct. 577, 589–91

(2018); Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018), though at least one justice

may harbor doubts, see Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017) (Thomas, J.,

concurring in part and in the judgment) (“In an appropriate case, we should

reconsider our qualified immunity jurisprudence.”). “Because the Constitution’s

general provisions can be abstract,” fair notice protects an official from “liab[ility]

for conduct that [he could] reasonably believe[] was lawful.” Aaron L. Nielson &

Christopher J. Walker, A Qualified Defense of Qualified Immunity, 93 Notre Dame

L. Rev. 1853, 1873 (2018). So even when an official behaves badly, “qualified

immunity gives government officials breathing room to make reasonable but

mistaken judgments about open legal questions.” al-Kidd, 563 U.S. at 743.




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        Recall that the Constitution does not provide the only standard for redress

for those wronged by public officials. For example, Lawton’s alleged conduct

could have been reviewed and sanctioned by the State Bar. See Ga. R. Prof’l

Conduct 3.8(g), 8.4. Echols could have also filed a claim under state tort law

against Lawton. See Cottrell, 788 S.E.2d at 780–81. But Echols chose to frame his

complaint as a federal case alleging a violation of the Constitution, 42 U.S.C. §

1983.

        Section 1983 is not a “font of tort law [that] converts [every] state law tort

claim[] into [a] federal cause[] of action.” Waddell, 329 F.3d at 1305 (citation and

internal quotation marks omitted). When a plaintiff complains that a public official

has violated the Constitution, qualified immunity shields the official from

individual liability unless he had fair notice that his alleged conduct would violate

“the supreme Law of the Land.” U.S. Const. Art. VI. Because Lawton lacked that

fair notice, he enjoys qualified immunity from Echols’s claim of retaliation.

    B. Lawton Enjoys Qualified Immunity from Echols’s Claim Under the Due
                                 Process Clause.

        We also agree with the district court that Lawton enjoys qualified immunity

from Echols’s claim that Lawton violated his right to substantive due process, but

we again do so for a different reason. The district court ruled that Echols failed to

state a claim under the standards that govern substantive due process because

Echols failed to allege either a violation of a fundamental liberty or government

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conduct that shocks the conscience, but Echols’s claim fails for a simpler reason:

the text of the First Amendment sets the specific standard for it. As we have

already explained, the First Amendment protects Echols’s right to be free from

retaliation by Lawton, a public official, for the exercise of Echols’s right to speak.

See Bailey, 843 F.3d at 480–81. And the Due Process Clause cannot be used to

supplement that substantive right.

      “Where a particular Amendment provides an explicit textual source of

constitutional protection against a particular sort of government behavior, that

Amendment, not the more generalized notion of substantive due process, must be

the guide for analyzing these claims.” County of Sacramento v. Lewis, 523 U.S.

833, 842 (1998) (alteration omitted) (quoting Albright v. Oliver, 510 U.S. 266, 273

(1994) (plurality opinion)); see also Graham v. Connor, 490 U.S. 386, 395 (1989).

In the Bill of Rights, the “Framers sought to restrict the exercise of arbitrary

authority by the [g]overnment in particular situations.” Albright, 510 U.S. at 273

(plurality opinion). So when the Framers considered a matter and drafted an

amendment to address it, id. at 274, a substantive-due-process analysis is

inappropriate, Lewis, 523 U.S. at 843. We must “analyze[] [the claim] under the

standard appropriate to that specific provision, not under the rubric of substantive

due process.” Lewis, 523 U.S. at 843 (quoting United States v. Lanier, 520 U.S.

259, 272 n.7 (1997)).



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      The district court’s error was understandable. Confusion in jurisprudence

that can be fairly described as untethered from the text of the Constitution—on its

face, after all, “the Due Process Clause guarantees no substantive rights, but only

(as it says) process,” United States v. Carlton, 512 U.S. 26, 40 (1994) (Scalia, J.,

concurring in the judgment)—should not be surprising. For that reason, the

Supreme Court has been “reluctant to expand the concept of substantive due

process.” Collins v. Harker Heights, 503 U.S. 115, 125 (1992). So where, as here,

a specific constitutional provision covers a plaintiff’s claim, the requirements of

that provision “are not to be supplemented through the device of ‘substantive due

process.’” Albright, 510 U.S. at 276 (Scalia, J., concurring).

                                IV. CONCLUSION

      We AFFIRM the judgment in favor of Lawton.




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GILMAN, Circuit Judge, concurring:

      I fully concur in the lead opinion’s holding that Echols’s complaint states a

valid claim of retaliation under the First Amendment. Reluctantly, I also agree that

Lawton is entitled to qualified immunity on this claim because the then-existing

law in the Eleventh Circuit did not clearly establish that Lawton’s egregious

conduct violated Echols’s constitutional rights. Several pertinent cases from other

circuits hold that defamatory speech by a public official does not constitute First

Amendment retaliation “in the absence of a threat, coercion, or intimidation,” see,

e.g., Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 687 (4th Cir. 2000), and none

of these actions were attributed to Lawton in Echols’s complaint. And although

authority exists to the contrary, see, e.g., Tierney v. Vahle, 304 F.3d 734, 740 (7th

Cir. 2002) (concluding that “defamation inflicts sufficient harm on its victim to

count as retaliation [and thus] be capable of deterring the exercise of free speech”),

the Eleventh Circuit has not previously opined one way or the other on this issue.

This lack of consensus supports the proposition that Lawton’s defamatory

statement that Echols was still under indictment for kidnapping and rape, as

vindictive and unjustified as that statement appears to be, was not a clearly

established violation of Echols’s First Amendment rights.

      I further agree with the lead opinion’s conclusion that clear Supreme Court

precedent prevents Echols from invoking the rubric of substantive due process as a



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basis to hold Lawton accountable for a First Amendment violation. But for this

binding precedent, I would have concluded that Lawton’s statement “shocks the

conscience.” An official’s conduct most likely shocks the conscience—and thus

violates an individual’s substantive-due-process rights—if the conduct was

“intended to injure in some way unjustifiable by any government interest.” Davis

v. Carter, 555 F.3d 979, 982 (11th Cir. 2009) (emphasis added) (citation omitted).

      As applied to the present case, there can be no doubt that Lawton’s false

statement to the Georgia legislature that Echols was still under indictment for

kidnapping and rape was intended to injure Echols. This leaves the question of

what possible governmental interest justified Lawton in making that libelous

statement. I can think of none. Nor has any such justification been articulated by

either Lawton or the district court. I suggest that this total silence is due to the fact

that no such justification exists.

      In any event, we are bound by Supreme Court precedent from providing

relief to Echols on the basis of substantive due process. My only comfort with this

result is knowing that if another official in this circuit henceforth engages in

conduct similar to Lawton’s, he or she will not be entitled to hide behind the

doctrine of qualified immunity.




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