The Volokh Conspiracy
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The Second Letter from the Academic Freedom Alliance to the University of Florida
A requirement that professors serving as expert witnesses against the state do so pro bono is still unconstitutional
On October 31, the Academic Freedom Alliance wrote the leadership of the University of Florida explaining that its effort to suppress expert testimony by its faculty in a lawsuit filed against the state of Florida violates its commitments to academic freedom and violates the First Amendment. That letter is discussed here.
The president and provost of the university subsequently announced that the professors could testify, but only if they did so "pro bono on their own time." (It has since been reported that the University of Florida had earlier blocked another professor from testifying in a different lawsuit against the state despite the fact that he intended to do so pro bono and on his own time.) Yesterday the Academic Freedom Alliance sent a second letter to the leadership of the University of Florida explaining that the pro bono restriction still violated the university's stated commitments to academic freedom and the First Amendment.
From the second letter:
The First Amendment strongly disfavors the kind of viewpoint discrimination against constitutionally protected speech that the University is currently contemplating. "A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech." Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105, 115 (1991). The University is seeking to draw a bright line between a professor speaking as a paid expert witness in a lawsuit against the state and any other instance in which a professor might serve as a paid expert witness, but it is constitutionally unacceptable to draw such a line. Indeed, the University suggests that professors can be compensated to speak if they testify in favor of the state but they cannot be compensated to speak if they testify against the state. This is constitutionally unsustainable.