TALLAHASSEE — A federal appeals court Thursday backed the Florida Department of Children and Families in a First Amendment dispute about a state regulation barring “faith-based ideology” in a program that people convicted of domestic violence are required to attend.
A three-judge panel of the 11th U.S. Circuit Court of Appeals rejected arguments by Joseph Wm. Nussbaumer, Jr., a minister and clinical Christian psychologist who was denied state approval in 2022 to provide services in what is known as a batterer's intervention program.
Nussbaumer argued that his First Amendment rights were violated by the bar on faith-based ideology. But the appeals court said people convicted of domestic violence are ordered by judges to participate in the program and that its curriculum is “government speech.”
“This case asks whether a service provider, who seeks the privilege to work with court-ordered participants, can use the First Amendment as a sword to morph the government’s message into his own,” appeals-court Judge Gerald Tjoflat wrote in a 20-page opinion joined by Judges Kevin Newsom and Embry Kidd. “He cannot. We conclude that the curriculum and presentation of court-ordered BIPs (batterers intervention programs) are government speech. For this reason, Dr. Nussbaumer cannot sustain a claim under the Free Speech or Free Exercise Clause of the First Amendment.”
The Atlanta-based appeals court upheld a ruling issued last year by U.S. District Judge Mark Walker.
Thursday’s opinion said a 1995 Florida law required people convicted of domestic violence to attend the batterers intervention program as a condition of probation. Nussbaumer said he long provided services in the program, but the lawsuit resulted from a regulation issued in 2022 by the Department of Children and Families about the curriculum. That regulation included a prohibition on “faith-based ideology associated with a particular religion or denomination,” the opinion said.
Nussbaumer, who is part of Groveland Family and Crisis Counseling in Central Florida, filed the lawsuit in December 2022. A brief filed at the appeals court by Nussbaumer’s attorney said Nussbaumer informs clients that services are biblically-based.
“In order to continue to operate as an approved BIP provider, Dr. Nussbaumer must self-censor his speech and agree not to speak the things the state’s regulation prohibits and must agree to speak the things the regulation requires,” the brief said. “Dr. Nussbaumer is also told he must leave his faith at the office doorstep and he has been told he is specifically prohibited from using his faith background, experience, and training as a part of the curriculum.”
But the appeals-court panel said the regulation does not violate Nussbaumer’s speech rights.
“Sending a government message is the raison d’être for court-ordered domestic violence programming,” Tjoflat wrote. “Florida has a wheelhouse of correctional devices it could employ. But it chooses to require attendance at courses with specific content that it believes should be communicated to counter domestic violence. And it has sent that message for decades. Accordingly, we hold that Florida’s court-ordered BIPs have traditionally communicated the government’s message.”
