Reasonable, Viewpoint-Neutral No-Recording Policies in Government Service Offices Survive First Amendment Challenge in Limited/Nonpublic Forums

I. Introduction

Lana Patrick v. Pasco County Florida Tax Collector (11th Cir. June 16, 2026) arises from Plaintiff-Appellant Lana Patrick’s attempt to video record inside the Pasco County Tax Collector’s office near Dade City, Florida. After an office manager, Lisa McGuire, informed Patrick of a policy requiring prior approval from the Tax Collector before any interior recording, Patrick refused to stop recording; police responded and issued a trespass warning.

This appeal concerns Patrick’s second federal lawsuit under 42 U.S.C. § 1983 stemming from the same incident. In the first action (Patrick I), Patrick sued McGuire and two police officers in their individual capacities; the district court dismissed with prejudice. In the second action (Patrick II), Patrick sued Tax Collector Mike Fasano in his official capacity (functionally, a suit against the county). Patrick again alleged that the office’s recording policy violated the First Amendment, and she also invoked the Florida Sunshine Law.

The key issues on appeal were: (1) whether res judicata barred the second suit; (2) whether Patrick stated a viable First Amendment claim (and any Sunshine Law claim); and (3) whether dismissal with prejudice without leave to amend was proper.

II. Summary of the Opinion

The Eleventh Circuit affirmed dismissal with prejudice. Although the panel addressed res judicata and acknowledged privity was “a closer issue” on the limited record, it ultimately found it unnecessary to decide privity because Patrick II independently failed to state a claim.

  • First Amendment: The Tax Collector office’s lobby was treated as a limited public forum or nonpublic forum; the no-recording-without-approval policy was upheld as reasonable and viewpoint neutral.
  • Florida Sunshine Law: Any challenge was deemed abandoned on appeal.
  • Leave to amend: Denial was affirmed as futile because the claim failed as a matter of law given the policy’s constitutionality as analyzed.
  • Sanctions: Appellee’s Rule 38 motion was denied.

III. Analysis

A. Precedents Cited

1. First Amendment right to record; forum framework

  • Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000): Recognizes that the First Amendment protects the right to gather information about what public officials do on public property, including a right to record matters of public interest. The panel used Smith as the starting point, then emphasized that this right is not absolute.
  • McDonough v. Garcia, 116 F.4th 1319 (11th Cir. 2024) (en banc): Provided the controlling forum-analysis structure and the proposition that the government need not grant access to all who wish to speak/record without regard to the property’s nature and disruption. The panel relied on McDonough for the rule that in a limited public forum or nonpublic forum, restrictions need only be reasonable and viewpoint neutral.
  • Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985): Quoted (via McDonough) for the principle that the government need not open all property for expressive activity.
  • Perry Educ. Ass'n v. Perry Loc. Educators' Ass'n, 460 U.S. 37 (1983): Cited (via McDonough) for the proposition that the First Amendment does not guarantee access merely because the government owns the property.
  • Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995): Cited for the limited public forum standard and, critically, for the point that content-based limits can be permissible in such a forum if viewpoint neutral and reasonable.
  • Minn. Voters All. v. Mansky, 585 U.S. 1 (2018): Cited for analogous treatment in the nonpublic forum context—content-based restrictions may be permissible if viewpoint neutral and reasonable.

2. “Prior restraint” characterization

  • Sheets v. City of Punta Gorda, 415 F. Supp. 3d 1115 (M.D. Fla. 2019): The district court used Sheets to reason the policy was not an unconstitutional prior restraint because it did not penalize speech as such; it penalized refusal to stop recording without consent or to leave when the conduct disrupted the forum’s purpose. The Eleventh Circuit ultimately treated the prior-restraint issue as forfeited/waived because Patrick did not properly argue it in her opening brief (and raised it only in reply).
  • Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014) and McKiver v. Sec'y, Fla. Dep't of Corr., 991 F.3d 1357 (11th Cir. 2021): Provided the appellate waiver/abandonment rules used to dispose of the Sunshine Law arguments and the late-raised prior restraint arguments.

3. Res judicata and privity doctrine

  • Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498 (11th Cir. 1990): Quoted for the general definition of res judicata/claim preclusion; also discussed for employer-employee privity in vicarious liability contexts.
  • Rodemaker v. City of Valdosta Bd. of Educ., 110 F.4th 1318 (11th Cir. 2024): Supplied the four-element res judicata test and the privity framework; also offered a key statement the panel quoted: “The nucleus is the core, not the core and every layer, crack, and fissure.”
  • TVPX ARS, Inc. v. Genworth Life & Annuity Ins. Co., 959 F.3d 1318 (11th Cir. 2020) and Griswold v. Cnty. of Hillsborough, 598 F.3d 1289 (11th Cir. 2010): Used for the “same nucleus of operative fact” test and for privity factors.
  • In re Piper Aircraft Corp., 244 F.3d 1289 (11th Cir. 2001): Cited for the principle that res judicata focuses on factual commonality, not remedies.
  • NAACP v. Hunt, 891 F.2d 1555 (11th Cir. 1990): Cited for the general definition of privity (“sufficiently close” relationship).
  • Taylor v. Sturgell, 553 U.S. 880 (2008): Used to narrow “adequate representation” and to reject privity based solely on “shared interests.”
  • Lozman v. City of Riviera Beach, 713 F.3d 1066 (11th Cir. 2013): Cited both for judicial notice and for the proposition that an official-capacity defendant is typically in privity with the government, while an individual-capacity defendant generally is not.
  • Cannon v. Armstrong Containers Inc., 92 F.4th 688 (7th Cir. 2024) and Perez v. Volvo Car Corp., 247 F.3d 303 (1st Cir. 2001): Cited to emphasize that shared counsel alone does not establish “control” for privity purposes.

4. § 1983 official-capacity suits; Monell limits

  • Barnett v. MacArthur, 956 F.3d 1291 (11th Cir. 2020) and Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989): Cited for the doctrine that an official-capacity suit is effectively a suit against the governmental entity.
  • Roy v. Ivy, 53 F.4th 1338 (11th Cir. 2022): Used to restate that supervisors are not liable under § 1983 on a respondeat superior theory.
  • Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978): Cited to reiterate that municipalities are not vicariously liable under § 1983 for employees’ acts.

5. Procedural standards and amendment

  • Beazer v. Richmond Cnty. Constructors, LLC, 169 F.4th 1082 (11th Cir. 2026) and Milner v. Baptist Health Montgomery, 132 F.4th 1354 (11th Cir. 2025): Standards of review for Rule 12(b)(6) dismissal and res judicata.
  • Whitesell Corp. v. Electrolux Home Prods., Inc., 154 F.4th 1289 (11th Cir. 2025) and Freeman v. First Union Nat'l., 329 F.3d 1231 (11th Cir. 2003): De novo review of futility determinations.
  • Bank v. Pitt, 928 F.2d 1108 (11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541 (11th Cir. 2002) (en banc), and Hall v. United Ins. Co. of Am., 367 F.3d 1255 (11th Cir. 2004): Applied for the pro se amendment rule and the futility exception.

B. Legal Reasoning

1. The court’s core First Amendment holding: forum + reasonableness + viewpoint neutrality

The panel accepted (and Patrick did not contest) the characterization of the Tax Collector office lobby as a limited public forum or nonpublic forum. That choice determined the governing test: the policy need not satisfy strict scrutiny; it must be (i) reasonable in light of the forum’s purpose and (ii) viewpoint neutral.

Applying that test, the court credited the government’s operational and privacy interests embedded in the written policy:

  • Protecting confidential identifying documents and sensitive information (e.g., passports, driver licenses, Social Security cards/numbers).
  • Preventing disruption and distraction in a high-volume service setting.
  • Avoiding the need for “more burdensome confidentiality measures” if recording were allowed broadly.
  • Providing an alternative channel: recording may occur with prior approval.

The panel also found viewpoint neutrality straightforward: the policy applied to all who sought to record inside the facility without prior approval, regardless of purpose or perspective.

2. Rejecting “content-based therefore strict scrutiny” as the wrong legal move in this forum

Patrick argued the policy was “content based” and therefore triggered strict scrutiny. The panel responded with a doctrinal clarification: in a limited public forum or nonpublic forum, even content-based restrictions may be permissible if they remain viewpoint neutral and reasonable. The opinion cited Rosenberger v. Rector & Visitors of Univ. of Va. (limited public forum) and Minn. Voters All. v. Mansky (nonpublic forum) to make that point explicit.

3. Res judicata: same nucleus was easy; privity was hard—and avoided

The court’s res judicata discussion contains two important moves:

  • Same cause of action: The panel held Patrick I and Patrick II arose from the same “nucleus of operative facts”—enforcement of the recording policy during the May 16, 2023 incident—even if Patrick attempted to plead Patrick II at a higher level of generality, invoked other “citizen journalists,” or shifted theories/defendants/remedies. The court invoked Rodemaker, TVPX ARS, Inc., and In re Piper Aircraft Corp. to stress that factual commonality, not legal packaging, controls.
  • Privity: The panel flagged multiple reasons privity was questionable on the limited record: McGuire was sued individually; Fasano was sued officially (i.e., the county); shared counsel alone is insufficient; “shared job-related goal” is not enough after Taylor v. Sturgell and Griswold; and vicarious-liability-style privity is a poor fit because § 1983 disallows respondeat superior under Roy v. Ivy and Monell. Ultimately, the panel declined to decide privity because dismissal was independently correct for failure to state a claim.

This sequencing matters: the court effectively treated res judicata as an alternative ground and insulated the judgment by affirming on merits/pleading futility.

4. Futility and dismissal with prejudice

Even under the pro se “one chance to amend” principle of Bank v. Pitt, leave may be denied where amendment is futile. Here, the panel reasoned the defect was legal, not factual: because the recording policy was constitutional under the applicable forum test, no additional factual detail would change the governing analysis. Dismissal with prejudice was therefore affirmed.

C. Impact

1. Practical effect on “right to record” claims in government service buildings

The opinion reinforces a trend in Eleventh Circuit doctrine (post-McDonough v. Garcia) that plaintiffs challenging recording restrictions in government-administered indoor service environments must confront forum limits. Even where Smith v. City of Cumming recognizes a right to record, this decision confirms that inside facilities designed to deliver services and handle sensitive personal data, courts will likely uphold restrictions that are:

  • drafted in neutral terms,
  • justified by privacy and operational needs, and
  • structured to preserve the forum’s primary function.

2. Litigation strategy: repackaging claims may not avoid preclusion—yet privity is not automatic

While the panel did not decide privity, its discussion signals skepticism toward expansive privity theories where:

  • the first case sued a government employee individually,
  • the second case sues an official officially (the entity), and
  • the plaintiff attempts to transform a prior as-applied dispute into a broader attack on policy.

At the same time, the court’s willingness to avoid the privity question leaves room for future defendants to develop a record supporting privity under recognized factors (control, representation, legal relationship) rather than “shared goals.”

3. Municipal liability backdrop

The opinion indirectly underscores how Monell limits shape both merits and preclusion arguments: because municipalities are not vicariously liable, plaintiffs must plead an entity-level basis for liability (policy/custom causing the constitutional injury). Where the policy itself is found constitutional, Monell-style official-capacity claims collapse at the threshold.

IV. Complex Concepts Simplified

  • Limited public forum vs. nonpublic forum: Government property is not automatically open for expressive activity. A limited public forum is opened only for certain groups or topics; a nonpublic forum is not opened for public expressive use at all. In either, the government may impose restrictions that are reasonable and viewpoint neutral.
  • Viewpoint neutral vs. content based: A rule is viewpoint-based if it favors one side of a debate (e.g., allowing praise of officials but banning criticism). A rule can be “content based” in a broad sense yet still be allowed in limited/nonpublic forums if it does not discriminate by viewpoint and is reasonable for the setting.
  • Res judicata (claim preclusion): If a final judgment resolves a dispute, a plaintiff generally cannot bring a later lawsuit based on the same core facts, even if the plaintiff changes legal labels, remedies, or adds new defendants.
  • Privity: A nonparty may sometimes benefit from (or be bound by) a prior judgment if their legal relationship to a prior party is sufficiently close under recognized factors (control, representation, substantive legal relationship), not merely because they share an interest.
  • Official-capacity vs. individual-capacity § 1983 suits: Suing an official “in their official capacity” is essentially suing the government entity. Suing an employee “in their individual capacity” targets personal liability. Importantly, municipalities and supervisors generally are not liable simply because they employ someone (no respondeat superior under § 1983).

V. Conclusion

The Eleventh Circuit affirmed dismissal with prejudice because Patrick’s complaint could not state a First Amendment claim as a matter of law: the Tax Collector’s no-recording-without-approval policy for the interior of the office was upheld as a reasonable, viewpoint-neutral restriction in a limited public forum or nonpublic forum. The court also enforced appellate waiver principles to dispose of the Sunshine Law issue and treated amendment as futile.

The decision’s significance lies less in breaking new ground than in consolidating the post-McDonough approach: “right to record” claims are highly forum-dependent, and indoor government service spaces handling sensitive personal information can impose broad recording limits—so long as they are evenhanded and tied to the facility’s operational purpose.