Free Speech

Univ. of Florida Blocks Professors' Expert Witness Work in Case Against Florida Government

A clear academic freedom violation, and likely a First Amendment violation as well: "A concept of loyalty that sweeps so broadly is not one that may legitimately trump compelling interests in speaking on matters of public concern."

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The job of a modern American university—and the purpose of its guarantees of academic freedom—is to promote the development and dissemination of expert knowledge, including opinions based on that knowledge. And that's so regardless of whom the knowledge reflects well or badly on.

Say a University of California professor's research uncovers that California government policy is bad for business, compared, to, say, the policy of Texas. Publishing that research may drive businesses away from California, thus harming the California economy and indirectly the University of California itself. Yet it's the professor's job to publish it nonetheless. In the long term, disclosing these policy problems may help California, because identifying the problem is a necessary step towards fixing it. But in any event, the professor's job is to discover and disclose the truth.

Or say the professor uncovers what he believes to be problems with the UC itself—for instance, that its approaches to race-based affirmative action or to athletic scholarships or to educational policy are unsound in various ways. And say he testifies to Congress or the legislature about it.

That might be bad for the university, at least in the short term, in that it may reduce federal funding or state funding or alumni donations or applications from prospective students. Or it might simply undermine, by criticizing, the policies that the Chancellor or the Regents or the Legislature seek to pursue. Or it might be used against the university or the state in litigation. But his job is to tell it like it is.

That's why the University of Florida's action here strikes me as wrong. To quote Politico (Gary Fineout & Marc Caputo):

Florida's flagship university is under fire for violating the free speech rights of three professors it blocked from testifying in a lawsuit challenging the state's new law voting restrictions.

Top University of Florida officials asserted that it was a conflict of interest for professors to testify in the lawsuit because they're state employees. It's a notable turnaround in university policy, which for years allowed professors to testify in lawsuits against the state—including one that unsuccessfully challenged the state law that restricted voting rights for convicted felons.

The University's ostensible rationale is that "Outside activities that may pose a conflict of interest to the executive branch of the State of Florida create a conflict for the University of Florida." But this wrongly assumes that the job of university professors is to promote the interests of the Florida government in particular litigation, or to promote the interests of the University in particular litigation, or at least not to express views that run contrary to the Florida government's or University's.

And of course this rationale would justify restrictions not just on expert witness work, but to state or federal legislative testimony, to op-eds, to scholarly articles, and the like. Indeed, it might apply to speech that "may pose a conflict of interest to the executive branch of the [United States government]" as well: After all, state universities get a great deal of funding from the federal government, and the federal government might well want to impose similar constraints on university professors whom it directly or indirectly funds, if it sees Florida is being allowed to do so. And it would apply to speech that suggests the impropriety of the University administration's policies at least as much as to speech that suggests the impropriety of the state or federal governments' policies. That's a rule of academic subservience to political institutions' policies, not of academic freedom.

Indeed, if anything, expert witness work in court should be seen as especially protected from restriction. It provides extra information to courts resolving legal claims. It is considered in the relatively calm and thoughtful environment of the judicial process. It is subject to rebuttal by the state's own expert witnesses. And presumably the state of Florida should have a broader interest in following the law, including federal law when it trumps state law (see the U.S. Constitution's Supremacy Clause). Professors' conveying their expert knowledge  to judges is thus especially valuable to the pursuit of truth (as well as to the administration of justice), though I think the same should apply to other forms of commentary as well.

Unsurprisingly, courts have indeed rejected such restrictions on expert testimony by faculty members. In Hoover v. Morales (1998), the federal court of appeals for the Fifth Circuit expressly struck down Texas policies which "prohibit[] state employees"—including, in that case, university employees—"from acting as consultants or expert witnesses on behalf of parties opposing the State in litigation":

The notion that the State may silence the testimony of state employees simply because that testimony is contrary to the interests of the State in litigation or otherwise, is antithetical to the protection extended by the First Amendment.

The Fifth Circuit held the same, sitting en banc, in Kinney v. Weaver (2004), where college instructors in a program that trained police officers were retaliated against for providing expert testimony against a police department in a case:

The record shows that the Police Officials see a conflict of interest whenever and wherever a police trainer testifies against police officers. Regardless of whether one uses the label "code of silence," we believe that, on this record, the defendants' asserted notion of "conflicts of interest" sweeps so broadly as to undermine its status as a legitimate government interest that can properly weigh in the [First Amendment] balance….

The Police Officials' charge of disloyalty makes sense only if Kinney and Hall owe fealty to law enforcement universally. Indeed, the Police Officials' stated view is that one is disloyal—and has committed an unforgivable "sin"—whenever one testifies against law enforcement officers anywhere. A concept of loyalty that sweeps so broadly is not one that may legitimately trump compelling interests in speaking on matters of public concern.

The same principle has been applied outside educational institutions as well, see, e.g., Clairmont v. Sound Mental Health (9th Cir. 2011), though the matter is less clear there, see Mikko v. City of Atlanta (11th Cir. 2017) (providing government officials with qualified immunity against such a claim, because, though "[w]e do not mean to say that Mikko's report or his intended testimony was notprotected by the First Amendment, which is an issue we need not decide," past precedent in the circuit "did not put the constitutional issue in this case 'beyond debate'"). But when it comes to universities and their tradition of academic freedom, the government may not impose "[a] concept of loyalty" "to the interests of the State" that trumps professors' academic freedom rights.

Now I should note that the University's arguments here may be limited to paying expert witness work; it appears that the University policy requires approval only for "Professional compensated activities, including but not limited to, activities for which travel expenses, travel support, and honoraria are paid, teaching at another institution, or employment as an expert witness." But in the words of the Fifth Circuit in Hoover, written in a section of the opinion titled "Is Speech Still Free If You Get Paid For It?,"

If all it takes to make speech commercial [and thus less constitutionally protected] is that the speaker is paid to say it, then every writer with a book deal, every radio D.J., and every newspaper and television reporter is engaged in commercial speech. "It is well settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak." Likewise, the fact that one is paid to be an expert witness, does not make his testimony commercial speech. Therefore, the defining element of commercial speech is not that the speaker is paid to speak, but rather that the speech concerns the "economic interests of the speaker and its audience."

Perhaps a content-neutral rule generally prohibiting certain kinds of compensated outside activities might be permissible (though there are limits even on that, see U.S. v. NTEU (1995)). But here it's clear that the state's objection isn't that, say, the draw of big money would lead a professor to devote too much time to expert witness work to the detriment of teaching and scholarship. Rather, it's to the professor's expressing views that would undermine the Florida Executive Branch's litigation positions.

(Thanks to my coblogger Keith Whittington, wearing his hat as the Chair of the Academic Freedom Alliance's Academic Committee, for pointers to some of the cases I cited above. I expect a statement from the AFA soon on this very subject.)

UPDATE: A University of Florida faculty member writes:

Just to clarify the policy—which was adopted in the past 2-4 years (not sure how long, but it is new)—about which you cogently wrote earlier today, it does not hinge on whether the employee has a financial interest. As the form states, notice and then permission are required of "any activity or financial interest." When it was introduced to the faculty, we were informed by university counsel and our Dean that any activity, even those for which we would not receive any compensation (e.g., signing onto an amicus brief) requires advance permission.

{This is from Regulation 1.011, which is incorporated by reference on the form (and consistent with how the form was presented to faculty, at least at the Law School) (emphasis added):

(2) Definitions.

(a) "Outside activity" shall mean any private practice, private consulting, employment, teaching, research, business (including managerial interests or positions), or other activity, compensated or uncompensated, which is not part of the employee's assigned duties and for which the University provides no compensation.}

[The policy] was presented more as something to provide the university administration with notice, and its main intent, so we were told, was to document outside activities that might occupy an employee's time or, as in work for foreign nations and companies (specifically, given recent controversies, China), that might create legal and/ or political problems for the university and employee.

Given the quite obvious political nature of the litigation (and recent disclosures about the process by which the state's new surgeon general was hired by UF's medical school), it is highly unlikely that the university's posture is at all related to the paid nature of the expertise its faculty members were retained to provide.

FURTHER UPDATE [Nov. 3, 2021]: Politico (Andrew Atterbury) reports that the University of Florida "softened its initial stance and said that the professors can provide expert testimony as long as they do it pro bono and on their own time," though for reasons I give above this doesn't fully resolve the problem.