Eleventh Circuit Holds Court‑Ordered Batterers’ Intervention Programs Are Government Speech, Foreclosing Free Speech and Free Exercise Challenges to State‑Mandated Curricula

Introduction

In Joseph Wm. Nussbaumer, Jr. v. Secretary, Florida Department of Children and Families, the U.S. Court of Appeals for the Eleventh Circuit affirmed summary judgment for Florida’s Department of Children and Families (DCF), holding that court‑ordered Batterers’ Intervention Program (BIP) curricula constitute government speech. Because the State is the speaker in this setting, First Amendment Free Speech scrutiny does not apply, and—importantly—the provider’s Free Exercise claim likewise fails. The panel (Judges Newsom, Kidd, and Tjoflat; opinion by Judge Tjoflat) also emphasized the modern approach to facial challenges under Moody v. NetChoice and noted limits on injunctive relief.

The decision consolidates the government‑speech doctrine in a new context—privately delivered, court‑ordered rehabilitation/education programs for probationers—and clarifies that when the State designs, mandates, and controls the message in such programs, it may insist upon a particular evidence‑based instructional model (and forbid faith‑based ideology) without violating the First Amendment.

Background and Key Issues

Florida law requires individuals convicted of domestic violence to complete a BIP as a condition of probation. While the State does not operate the programs itself, it sets detailed curriculum standards and certifies private providers. Historically:

• 1995: Florida created BIPs and a state certification/monitoring office (initially in the Department of Corrections) to standardize programming focused on victim safety and batterer accountability.
• 2001: Responsibility moved to DCF;
• 2007: DCF’s first rule prohibited faith‑based ideology associated with a particular religion or denomination;
• 2012–2021: Certification suspended, but statutory minimum content standards remained;
• 2021: Certification reinstated; 2022: DCF adopted Rule 65H‑2.017 specifying mandatory content and proscribing certain elements, including faith‑based ideology, anger‑management‑as‑cause, impulse‑control‑as‑cause, and couples therapy.

Dr. Joseph Wm. Nussbaumer, a minister and licensed clinical Christian psychologist, sought certification but was denied because his curriculum:

• Centers a “Biblical view of domestic violence,” and
• Uses a patient‑specific approach emphasizing anger management, impulse control, and substance abuse as causal factors—positions the rule expressly rejects.

After his application was again denied in 2022, and with courts/probation officers requiring referrals only to State‑certified providers, Dr. Nussbaumer brought a facial First Amendment challenge, seeking to enjoin DCF’s regulation as violating his Free Speech and Free Exercise rights.

Summary of the Judgment

The Eleventh Circuit affirmed. It held that the content and presentation of court‑ordered BIPs are government speech. Applying the familiar three‑factor analysis (history, public perception of endorsement, and government control), the court concluded:

• Historically, Florida has used BIPs to convey its own standardized message to probationers—victim safety and batterer accountability through a specific psychoeducational model.
• Participants reasonably associate the curriculum with the State because attendance is compelled by court order to satisfy probation terms.
• DCF exercises meaningful control by promulgating detailed content standards and reserving approval authority.

Because the program’s curriculum is government speech, the Free Speech Clause does not apply, and the State may choose the message it wishes to convey and exclude contrary or sectarian viewpoints. The Free Exercise claim also fails: the Constitution does not require the government to shape its own speech or internal operations to align with private religious beliefs.

Finally, the court noted that Dr. Nussbaumer’s facial challenge failed to engage the full range of applications as required by Moody v. NetChoice, and that his request for broad injunctive relief exceeded what would be necessary to redress his own alleged injury. Nevertheless, because the activity is government speech, the court did not need to resolve those remedial issues in detail.

Analysis

Precedents Cited and Their Influence

• Pleasant Grove City v. Summum and Johanns v. Livestock Marketing Association: These decisions establish that when the government is speaking—directly or via private assistance to deliver a government‑controlled message—First Amendment constraints on content discrimination do not apply. The court used Summum’s core principle that government may select the views it wishes to express, and Johanns’s recognition that government speech remains exempt from Free Speech scrutiny even when privately funded or delivered.
• Walker v. Texas Division, Sons of Confederate Veterans: The Supreme Court’s analysis of specialty license plates provided the modern template for examining government speech, including the three considerations (history, perception, control). The Eleventh Circuit leaned on Walker’s reasoning to analogize court‑ordered BIPs to state‑issued license plates: both serve governmental purposes, are legally required/displayed, and are subject to state approval of content.
• Shurtleff v. City of Boston and Matal v. Tam: These cases illustrate the boundary conditions. In Shurtleff, the city’s lack of meaningful control turned the flagpole into a forum for private speech. In Matal, trademarks could not plausibly be the government’s own message given the diversity and contradiction of registered marks (“babbling incoherently”). The Eleventh Circuit distinguished both: Florida tightly prescribes BIP content and does not operate an open forum for divergent messages.
• Mech v. School Board of Palm Beach County and Leake v. Drinkard (Eleventh Circuit): Both cases recognize that speech created by private parties can still be government speech where the government exercises approval authority and articulates content criteria. Mech’s sponsor banners and Leake’s city‑endorsed parade messaging support the conclusion that DCF’s approval and prescribed curriculum keep BIPs within the government‑speech domain.
• Cambridge Christian School v. FHSAA (Eleventh Circuit, 2024; cert. petition pending): The court recently held the FHSAA’s use of a championship game PA system was government speech, allowing the State to deny a pre‑game prayer over that system. Tellingly, Cambridge Christian also holds that government speech cannot support a Free Exercise claim alleging interference with private religious exercise—directly controlling here.
• Kennedy v. Bremerton and Employment Division v. Smith: Kennedy recognizes the tandem operation of the Free Speech and Free Exercise Clauses for expressive religious conduct; Smith frames the baseline for neutral, generally applicable laws. The Eleventh Circuit noted the overlap but concluded neither pathway helps a claimant when the State itself is speaking.
• Moody v. NetChoice (2024): The Supreme Court instructed courts to evaluate “a law’s full set of applications” in facial First Amendment challenges. The Eleventh Circuit underscored that Dr. Nussbaumer’s facial attack lacked the required breadth of analysis.
• Trump v. Casa (2025): The panel invoked this decision’s caution that injunctive relief should not be broader than necessary to afford complete relief to the plaintiff—signaling skepticism toward universal injunctions absent a developed record justifying such breadth.

Legal Reasoning

The Government‑Speech Determination

Applying the three‑factor government‑speech analysis, the court framed the inquiry at the correct level of specificity: not “therapist‑patient communications” writ large, but the particular speech at issue—court‑ordered BIPs for probationers. The distinction matters because Florida’s BIPs are statutory instruments for offender accountability and victim safety, not general therapy or voluntary counseling. The court found:

1. History: From inception, Florida’s BIP regime has conveyed a standardized message chosen by the State. Even when certification lapsed (2012–2021), statutory minimum content standards persisted (e.g., psychoeducational model, “power and control,” batterer accountability). This continuity distinguished the regime from the “incoherent babble” problem in Matal.
2. Perception/Endorsement: Court‑ordered participants would reasonably attribute the curriculum to the State: attendance is mandated by law, the program serves a public penal/probationary purpose, and participants must typically choose from state‑certified providers. That participants also recognize the private provider does not sever the perceived state endorsement—both can be true.
3. Control: DCF promulgates detailed curriculum standards, screens applications, and retains approval authority—the core of content control recognized in Walker and Mech. The State’s willingness to assist applicants to come into compliance underscores ongoing oversight. That a provider may have informally served probationers in the past without proper certification did not negate the State’s overall control of a statewide program.

With all three factors pointing toward government speech, the court reiterated the principle: when the government speaks, it “is entitled to say what it wishes, and to select the views that it wants to express.” Accordingly, the State may prohibit “faith‑based ideology associated with a particular religion or denomination,” disallow anger‑management or impulse‑control theories as primary causes, and insist on a power‑and‑control psychoeducational model.

Free Exercise Claim

The Free Exercise Clause protects religious exercise from government interference, but it does not entitle private parties to reshape the government’s own speech or programs to accord with their beliefs. Drawing on Cambridge Christian and Bowen v. Roy, the Eleventh Circuit held that a provider cannot demand the State alter its own message (here, the BIP curriculum) to accommodate the provider’s religious viewpoint. The Clause is phrased in terms of restraints on government action against the individual, not an entitlement to exact religiously congruent speech from the government.

Facial Challenge and Remedy

The court faulted the plaintiff’s facial challenge for failing to analyze the rule’s “full set of applications,” as required by Moody v. NetChoice—even in the First Amendment context. And it signaled that broad injunctive relief “against all parties, in all contexts” likely exceeds the equitable authority necessary to provide complete relief, echoing Trump v. Casa. The court did not need to resolve those issues definitively because it found the rule regulates government speech exclusively, but the opinion nonetheless provides guidance to future litigants.

Impact and Implications

This decision has concrete consequences across several domains:

• Probation‑Condition Programs: States may treat the content of court‑ordered rehabilitative or educational programs (e.g., domestic violence, DUI schools, sex offender treatment, parenting courses) as government speech where they prescribe content and retain approval authority. This allows robust content mandates—and exclusions—without First Amendment Free Speech liability.
• Religious Providers: Faith‑based counselors may not insist on delivering court‑ordered programming using sectarian content or theories that contradict state standards. They may, however, serve voluntary clients with their preferred approach, outside the court‑ordered track, unless other laws apply.
• Forum‑Creation Risks: Agencies wishing to maintain government‑speech status should avoid transforming these programs into open fora. Dilution of content control, rubber‑stamping divergent curricula, or creating broad provider discretion could, under Shurtleff, shift the analysis toward private speech and invite First Amendment scrutiny.
• Free Exercise Litigation: Cambridge Christian’s principle—government speech cannot be the basis for a Free Exercise claim—gains fresh application. If the State is speaking, Free Exercise claims that would force the State to modify its message will generally fail.
• Facial Challenges and Remedies: Litigants should heed Moody v. NetChoice’s insistence on assessing all applications in a facial challenge and tailor requested injunctions to their own injuries. Overbroad injunctions are disfavored.

At the same time, limits remain: government speech does not license Establishment Clause violations. Florida’s rule here cuts against religious indoctrination in a compulsory program, reducing Establishment Clause risk. But if a state were to require sectarian content or coerce religious practice in a court‑ordered curriculum, different constitutional concerns would arise.

Complex Concepts Simplified

• Government Speech: When the government is the speaker, it is not creating a forum for private expression; it is conveying a public message. In such settings, the government may choose content and viewpoint. Think of a state‑issued license plate or a public‑school banner the principal approves. The key indicators are history, public perception of state endorsement, and meaningful government control over the message.
• Private Speech vs. Forum: If the government opens a space for private speakers to express their own messages with minimal oversight (like a freely available flagpole in Shurtleff), it creates a “forum,” and First Amendment limits on viewpoint discrimination apply.
• Free Exercise Limits in Government Speech Settings: The Free Exercise Clause protects individuals from government coercion or punishment for religious exercise, but it does not require the government to adopt a private party’s religious perspective in the government’s own program.
• Facial Challenge: A claim that a law is unconstitutional in all or most of its applications. Post‑Moody, courts require a rigorous, application‑by‑application assessment; it’s not enough to show a law is unconstitutional as applied to one plaintiff.
• Scope of Injunction: Courts should issue relief no broader than necessary to redress the plaintiff’s injury. Universal or program‑wide injunctions demand strong justification tied to the record.

Practical Guidance

• For Agencies:
  • Maintain clear, detailed content standards; retain and document approval authority over curricula.
  • Avoid practices that could suggest the program is an open forum; provide reasons for denials and offer pathways to compliance.
  • Ensure curricula avoid Establishment Clause pitfalls in compulsory programs.
• For Providers:
  • If you wish to serve court‑ordered clients, design a curriculum that complies with the state’s content standards. Keep faith‑based or alternative‑theory programs for voluntary clients.
  • If challenging a rule, gather evidence showing a lack of meaningful state control or a pattern of rubber‑stamping inconsistent content—facts that might shift the analysis away from government speech.
  • Tailor challenges as applied, and calibrate requested relief to your specific injury to avoid remedial overreach critiques.
• For Defendants Facing Facial Challenges:
  • Invoke Moody v. NetChoice to demand the required “full set of applications” analysis.
  • Resist universal injunctions by invoking modern equitable limits (e.g., Trump v. Casa) and proposing narrower relief.

Conclusion

The Eleventh Circuit’s decision cements a significant expansion of the government‑speech doctrine: the State’s prescribed curriculum for court‑ordered BIPs is the State’s own message. That conclusion resolves both Free Speech and Free Exercise challenges—the former because the First Amendment does not constrain government speech, and the latter because the Clause does not require the State to tailor its own message to private religious viewpoints. The opinion also underscores current Supreme Court direction on facial challenges and equitable remedies.

Going forward, the decision provides a roadmap for states to structure court‑mandated rehabilitative programs as government speech by tightly prescribing content and retaining approval authority, while signaling to providers that participation in such programs entails adherence to the State’s message. The boundaries remain important: agencies should avoid practices that create forums for private speech and must steer clear of Establishment Clause concerns. Within those limits, however, the State’s prerogative to define the message of its compulsory probation programs is now firmly affirmed in the Eleventh Circuit.