Courts

Epic Benchslap: University Of Florida Gets Spanked In Effort To Gag Professors Testifying Against State

Don't make US District Judge Mark Walker angry. You wouldn't like him when he's angry.

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Benchslapped-01The University of Florida had to know it was going to lose this case. Barring professors from testifying as expert witnesses is a classic prior restraint, and doing it selectively based on whether they’re speaking against the state is unambiguously not content neutral. But the school probably didn’t expect to get compared to the Chinese Communist Party in the very first paragraph of the order granting the injunction.

So it had to sting when US District Chief Judge Mark Walker began by invoking a statue commemorating the 1989 Tiananmen Square Massacre victims which was recently removed from the University of Hong Kong’s campus because administrators decided that disappearing a marker of Chinese government violence was in “the best interest of the University.” And in case the analogy wasn’t clear, the court described the ongoing decline of academic freedom in Hong Kong as university administrators buckle under China’s demands for “greater patriotism and national Chinese identity” in education.

In Florida, as in Hong Kong, academics are being censored at the behest of a capricious state which brooks no dissent. Election law scholars Daniel A. Smith, Michael McDonald, and Sharon Wright Austin were blocked from testifying in a suit alleging that a recently enacted law deliberately disenfranchises minority voters because administrators determined that their testimony might “pose a conflict to the executive branch of the state of Florida create a conflict for the University of Florida.”

Two additional law professors were later added as plaintiffs, as well as pediatrics professor Dr. Jeffrey Goldhagen, who was refused permission to testify in a challenge to the governor’s order barring school districts from requiring students to wear masks to prevent the spread of coronavirus. Dr. Goldhagen was providing his services pro bono and still ran afoul of administrators — which somewhat undercuts the school’s protestation that what it objected to was outside paid work.

After the complaint was filed, the university revised its policy on professors taking outside work. Perhaps taking a page from the Supreme Court, the school invoked its own sort of major questions doctrine. Henceforward, there would be a “strong presumption” that UF faculty could testify as expert witnesses in cases involving the state, but the school reserved the right to gag employees “when clear and convincing evidence establishes that such testimony would conflict with an important and particularized interest of the university.”

And in case there was any doubt that they meant “we’re going to stifle you if you piss off Tallahassee,” UF Board Chair Morteza Hosseini said that he wasn’t going to let professors “improperly advocate personal political viewpoints to the exclusion of others.”

“It must stop, and it will stop,” he railed to the board in December. “Let me tell you, our legislators are not going to put up with the wasting of state money and resources, and neither is this board.”

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Clearly the school intended to stifle scholars’ speech, and, indeed, that is exactly what happened, according a report issued by UF faculty:

[T]he Report said, there was a “[c]oncern that denials for outside activities were tied to questions of race and ethnicity,” that UF “employees were told verbally not to criticize the Governor of Florida or UF policies related to Covid-19 in media interactions,” and that “websites were required to be changed, that course syllabi had to be restructured, and that use of the terms ‘critical’ and ‘race’ could not appear together in the same sentence or document.” and a German term for self-censorship for fear of retribution

But there’s losing, and there’s getting your ass kicked down the courthouse steps by a furious federal judge. Apparently the school decided to go with the second option, dispatching H. Christopher Bartolomucci, a partner at a D.C. firm Schaerr Jaffe LLP, to attempt to gotcha the plaintiffs last week by accusing them of “misconduct” and having “unclean hands” because they began preparing their expert testimony before getting official approval for the work.

“This Court cannot help noting the sad irony that UF touts its strong ‘presumption’ favoring speech with one breath and with the other condemns Plaintiffs as liars with unclean hands for having the audacity to presume that UF would approve their requests to speak,” Judge Walker writes in one of many furious footnotes, observing that outside work as an expert witness was routinely permitted in the past, and so the plaintiffs had every expectation of a pro forma approval.

“This Court finds Defense counsel’s argument disingenuous,” Judge Walker went on, accusing the lawyers of “feigning ignorance” and adding that it is the defendants, not the plaintiffs, who have “an issue of candor.”

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In fact, the court seemed more than a little irate at the quality of lawyering from the school, noting that he asked several times for the defendants to distinguish this case from Pickering v. Board of Education, 391 U.S. 563 (1968), which established the right of an employee to speak as a citizen on a matter of public concern.

For one, at the first hearing, Defendants’ counsel made the dubious assertion that he had no idea that this case implicated the Supreme Court’s test from Pickering and its progeny. For the uninitiated, that is roughly equivalent to an attorney in an abortion case feigning surprise in response to a question about Roe v. Wade and its progeny. Even so, this Court permitted Defendants to file additional briefing and continued the hearing. Defendants’ supplemental brief, however, added nothing.

OUCH.

But wait, there’s more!

Defendants first had the chance to address the issue in their initial briefing. But they did not. Defendants then had the opportunity to address the issue at the first hearing. Instead, they claimed to not know that Pickering applied to this case. This Court then gave Defendants another chance to brief the issue. But what Defendants submitted was hardly a brief. Sure, it had words, citations, etc.—all of the trappings of a brief. Yet it was utterly devoid of meaningful content. Finally, Defendants had a fourth chance to discuss the issue at the second hearing. Defendants, however, quickly announced that they had said everything they wanted to say about Pickering in their brief—i.e., nothing.

Well, as long as the words “critical” and “race” don’t appear too close together, Florida taxpayers are probably getting their money’s worth.

Unsurprisingly, plaintiffs got their injunction on enforcement of the school’s conflict of interest policy, with the court refusing to stay its order pending appeal.

“In short, UF’s policy violates the First Amendment as a prior restraint that grants UF unbridled discretion to suppress protected speech,” Judge Walker held. “Even if UF’s policy could survive Plaintiffs’ unbridled discretion challenge, it still violates the First Amendment because it allows UF to bar professors from speaking based on the viewpoint of their speech.”

And if the defendants are unhappy about the ruling, the court has some very pointed advice: “If those in UF’s administration find this comparison upsetting, the solution is simple. Stop acting like your contemporaries in Hong Kong.”

In Heated Hearing, Lawyer Says Professors Who Sued U. of Florida Have ‘Unclean Hands’ [Chronicle of Higher Education]
Austin v. University of Florida Board of Trustees [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

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