Case: 17-13843

Date Filed: 01/25/2019

Page: 1 of 26

[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.

 Case: 17-13843

Date Filed: 01/25/2019

Page: 2 of 26

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.

2

 Case: 17-13843

Date Filed: 01/25/2019

Page: 3 of 26

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

3

 Case: 17-13843

Date Filed: 01/25/2019

Page: 4 of 26

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.

4

 Case: 17-13843

Date Filed: 01/25/2019

Page: 5 of 26

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).

5

 Case: 17-13843

Date Filed: 01/25/2019

Page: 6 of 26

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

6

 Case: 17-13843

Date Filed: 01/25/2019

Page: 7 of 26

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

7

 Case: 17-13843

Date Filed: 01/25/2019

Page: 8 of 26

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

8

 Case: 17-13843

Date Filed: 01/25/2019

Page: 9 of 26

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

9

 Case: 17-13843

Date Filed: 01/25/2019

Page: 10 of 26

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

10

 Case: 17-13843

Date Filed: 01/25/2019

Page: 11 of 26

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

11

 Case: 17-13843

Date Filed: 01/25/2019

Page: 12 of 26

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

12

 Case: 17-13843

Date Filed: 01/25/2019

Page: 13 of 26

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

13

 Case: 17-13843

Date Filed: 01/25/2019

Page: 14 of 26

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

14

 Case: 17-13843

Date Filed: 01/25/2019

Page: 15 of 26

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).

15

 Case: 17-13843

Date Filed: 01/25/2019

Page: 16 of 26

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.

16

 Case: 17-13843

Date Filed: 01/25/2019

Page: 17 of 26

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 alKidd, 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
17

 Case: 17-13843

Date Filed: 01/25/2019

Page: 18 of 26

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

18

 Case: 17-13843

Date Filed: 01/25/2019

Page: 19 of 26

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).

19

 Case: 17-13843

Date Filed: 01/25/2019

Page: 20 of 26

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).

20

 Case: 17-13843

Date Filed: 01/25/2019

Page: 21 of 26

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.

21

 Case: 17-13843

Date Filed: 01/25/2019

Page: 22 of 26

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
22

 Case: 17-13843

Date Filed: 01/25/2019

Page: 23 of 26

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)).

23

 Case: 17-13843

Date Filed: 01/25/2019

Page: 24 of 26

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.

24

 Case: 17-13843

Date Filed: 01/25/2019

Page: 25 of 26

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

25

 Case: 17-13843

Date Filed: 01/25/2019

Page: 26 of 26

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.

26