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.

Read the whole thing here.

 

Comments

[apedad]

I wonder. . . is a witness's testimony considered "speech?"

With 1A you can blab, squawk, lie all you want (within the legal limits, e.g. libel), etc.

With testimony though, you certainly cannot lie and in some cases may be compelled to speak.

I agree UF's efforts to prohibit the professors from testifying is wrong, just not sure if 1A is the right way to go.

[Commenter_XY]

apedad, why isn't this just an employment law matter and not a 1A matter? Doesn't that make it much simpler to address?

[Sarcastr0]

Like defamation, perjury is not counted as speech for First Amendment purposes.
Silence when compelled to speak as a witness gets complicated, though.

Commenter -
State school means state action. Government as employer has pretty robust Constitutional obligations.

[Commenter_XY]

Perhaps....but it still does not answer why this isn't a plain vanilla employment law issue. I mean, the state doesn't have an obligation to proactively enable people who will testify against it, do they? That would seem rather odd.

[bernard11]

What's missing here is any discussion of what the "state's" interest is.

There seems to be an assumption that it's the interests of the party in power. I don't think that's right.

[Commenter_XY]

Good point, bernard11.

[Gandydancer]

No it's not. The issue here is whether these overpaid and probably worse-than-useless academics have constitutional protection to continus sucking at the public tit while screwing over their employers, the people of Florida, by obstructing the implementation of voter id measures PASSED INTO LAW (not merely "interests of the party in power") in order to achieve fair elections. I'm not buying it.

[Dilan Esper]

It's possible to have a neutral, generally applicable rule against outside employment.

BUT:

1. This isn't one. It's clearly being selectively enforced to target speech the state doesn't like.

AND

2. Florida's universities famously pay on a very low scale. If you are going to prohibit people from taking outside employment, you need to sufficiently compensate your workers so they don't need to.

Given those two points, Florida' s position is an outrageous infringement on academic freedom and not an employment issue.

[Gandydancer]

The UF salaries of these profs were linked to on a previous thread. As I recall they were paid in the $120k-$130k range, and apparently have time to take on outside work. They anyway make a lot more than most of the people they plan to add to their compensation by screwing over.

It's paid work contrary to the interests of the people of Florida that they are being prohibited from engaging in. It's hard to figure out why my rights should be inferior to theirs, but that's what they demand. Fuck them.

[Sarcastr0]

1) the amount of pay does not matter when asking if something violates the First Amendment or not.
2) contrary to the interests of the people is *precisely* the kind of judgement the First Amendment takes out of the hands of the government
3) Having a constitutional opinion is not against the interests of the state...of you care about the Constitution.

Once again, you get very angry at stuff you don't care to even try and understand.

[Dilan Esper]

It's paid work contrary to the interests of the people of Florida

That argument is an absolute First Amendment no-no.

The UF salaries of these profs were linked to on a previous thread. As I recall they were paid in the $120k-$130k range, and apparently have time to take on outside work.

The policy has to be generally applicable to be constitutional, which means it would have to apply to all the folks working at UCF and being paid $45,000 a year.

If Florida wants to impose an across the board policy, not only aimed at those who are making arguments it doesn't like, it would need to raise the minimum salary to a point where people don't need to take outside work, and then enforce it against all outside work.

[Rev. Arthur L. Kirkland]

"The UF salaries of these profs were linked to on a previous thread. As I recall they were paid in the $120k-$130k range, and apparently have time to take on outside work. They anyway make a lot more than most of the people they plan to add to their compensation by screwing over. It's paid work contrary to the interests of the people of Florida that they are being prohibited from engaging in. It's hard to figure out why my rights should be inferior to theirs, but that's what they demand. Fuck them."

Disaffected, left-behind, downscale, authoritarian, envious right-wing cranks are among my favorite culture war casualties. Stomping their conservative preferences into irrelevance in modern America has been blissful.

Get better ideas or get accustomed to continuing failure, clingers.

[bernard11]

The lawsuit in question challenges the constitutionality of the FL law.

So I don't give a ff if it was passed into law, or even PASSED INTO LAW. Unconstitutional laws don't, by definition, serve the interests of the people of FL.

And who do you think passes bills, if not the party in power.

And drop the "achieve fair elections" BS. The bill does the opposite.

[Goat]

It's a 1A issue because the employer is a government-funded institution. The government can decide what speech it will pay for, but it cannot decide what speech its employees will make on their own time. In this case, the university is trying to do the latter.

[Don Nico]

C_XY,
I think that it has both aspects. were the professor an accountant (or other non-academic employee) at UF, then I think that the terms of employment would govern in a straightforward way. The accountant needs to get permission for any outside employment. If s/he regularly expects to be used as an expert witness, then s/he should get that permission as a consultant to the law firm(s) long before any particular case is active.
For an academic employee the terms of employment are complicated by the university's express commitment to academic freedom and content neutral limitations on that freedom. I suspect that those limitations would warrant some 1A considerations.

[Commenter_XY]

Yeah Don Nico, I hear you. But it seems much simpler and elegant to apply employment law here. Also, there is something to the saying, "You don't shit where you eat". Those UF professors might want to reflect on that aphorism.

[Rev. Arthur L. Kirkland]

" "You don't shit where you eat". Those UF professors might want to reflect on that aphorism. "

By that standard, UCLA deans should stop apologizing for the conduct of their token clinger professors and start firing them.

[Don Nico]

As yes, C_XY, the wisdom of Tony Soprano.
But then he might have said, "You don't get your meat where you buy your bread."

[bernard11]

Meanwhile, it turns out that this is not the first time <a href="https://www.tampabay.com/news/education/2021/11/02/uf-restricted-five-more-professors-in-cases-against-the-state/"DeSantis&#039; mob has restricted testimony by UF faculty.

One case:

Jeffrey Goldhagen, a 28-year professor and chief of the Division of Community and Societal Pediatrics at the University of Florida College of Medicine in Jacksonville, was denied involvement in two separate mask cases, including one representing the Disability Independence Group in Miami.

Can't interfere with the murder regime.

[Chris Baker]

Well, you can lie in testimony. There is just penalty for doing so; just as if you wrongly utilize your First Amendment right and yell fire in the theater-- you would be punished for that too.

During testimony, you aren't being compelled to advocate a particular viewpoint either though.

[Longtobefree]

"With testimony though, you certainly cannot lie and in some cases may be compelled to speak."

And, in some courts, you can be compelled by the judge to lie under oath by referring to men as women and versa the vice.

[santamonica811]

No you can't. What a weird lie.

[Bubba Jones]

Is it normal for employees to be on the clock while testifying against their employer?

[Gandydancer]

What clock? They've got cushy six-figure supposedly full time jobs that give them plenty of time to work intensively against the interest of the people of Florida (their employers) in non-corrupt elections.

[Don Nico]

Gandy,
Don't be such a know-nothing. Google the FLSA and read about it rather than typing irrelevant babble

[Gandydancer]

Don't pretend to be such an know it all, you don't. I don't give a damn about whatever special provisions for the nomenklatura they've gotten written into the "Fair Labor Standards Act" that you might be referring to. I already said that it needed to be changed if it's an obtacle to reining them in. The fact is that academia is the disaster it is, and their failure at self government is mostly responsible for that. And -I- didn't say that they ought to be on the clock. Read the damn thread. They need to be better monitored, though.

[Sarcastr0]

You're super boring, in the end.

You don't care about what the law is, or even what the Constitution says.

You care only about how the world isn't how you, personally, wish it would be, and are consistently angry about it.

Why this may be the case, you don't even want to know. It's like you're to addicted to being angry to risk bringing facts into it.

[Gandydancer]

It's not a "fact" that the Constitution protects these execrable profs from the consequences of aiding a third-party suit against the interests of the citizens in Florida in fair elections.

And they are no doubt incompetent as well if their teaching reflects the stupidity involved in imagining that voter id laws are unconstitutional. Such deadwood neads to be cleaned out quite apart from their paid participation in this suit.

[Don Nico]

In this case "on the clock" or "on their own time" is a red herring. Professors are exempted employees under the FLSA. There is no clock.

[Gandydancer]

That needs to change, then.

[Bob from Ohio]

"Professors are exempted employees under the FLSA."

Its "exempt" not "exempted" since you are an expert

Employers can still impose regular hours on exempt employees. I'm exempt, I can't just show up and work midnight to 8 without getting fired.

Exempt basically means that the employer does not have to pay overtime.

[Don Nico]

Bob, don't be a pedant. You have a very limited view of the FLSA.

[Bob from Ohio]

Couple of days ago you opined that I should have used "deliverables" rather than "results" [like that matters] so pedant yourself.

You are claiming he doesn't know anything yet you don't know a basic term.

[Don Nico]

Ah Bob.
If you don't understand the difference in meaning, poor you.MEaning is what distinguishes my comment from yours

[Bob from Ohio]

Its just jargon.

Poor child, missing the Ghostbusters reference.

[Don Nico]

Bob, that is one of your many flaws. You don't understand the nuances of language.
Your boss wants results.
Your customer wants his deliverables; those are what are written on the invoice

[Gandydancer]

The customer doesn't want results?

LOL!

As he said, "deliverables" is just jargon. Pomposity.

[Chris Baker]

I'd presume they are being paid as expert witnesses so the side using them to advocate on their behalf is compensating them. When the state asks them to testify, they would probably be just getting their salary and it be considered part of their job.

[Gandydancer]

There is zero indication that they have ever been asked to testify for the State and, no, I doubt very much that any such task is included in the scope of their emplyment contracts, any more than digging ditches would be..

[Don Nico]

That is most likely true. They would not get extra compensation. And unless the state subpoenas the employee s/he i not obliged to testify.

[Gandydancer]

You can't subpoena an expert witness that I know of. And if the State of Florida wanted them to testify in that capacity they damn well could demand, and get, extra pay for doing it precisely because they are not obliged to.

[Don Nico]

Gandy,
Again, you nothing about the FLSA or about UF terms of employment. You just blather on.

[Gandydancer]

LOL! Look in the mirror for the pompous blowhard who knows nothing about UF terms of employment but is eager to imaginme them right out of his butt.

AND is incapable of recognizing or acknowledge the obvious implications of his own words: "...unless the state subpoenas the employee s/he i[s] not obliged to testify."

[Gandydancer]

Looking at the 2nd letter I noticed something that is in fact not true of the first letter: It is signed by one "Keith Whittington / Chair, Academic Committee, Academic Freedom Alliance"

There's nothing in either post by Whittington to indicate that he is this person -- you have to examine the letter linked to by the second post to find out that he is an interested party and a functionary in a pressure group that, according to a podcast recently promoted on Volokh was all-in on protecting Melissa Click from suffering any consequences for her battery (dunno if she was convicted, but she was charged) on the student journalist trying to get access to a meeting of black sudent protesters somehow given a tent and unauthorized exclusive use of the University of Missouri quad. This was the famous ~"Let's get some muscle here" incident.

So, yeah, this is an unsavory group dedicated to special privileges for allegedly "special" people, not you peons. The dishonesty in not identifying his interest in the matter at either opportunity to do so is turning into something that doesn't surprise me. I noted in my comments on the 11/1 Volokh article that "Whittington egregiously omits any mention of or link to the UF's 10/30 statement about this, which indeed focuses on 'paid' and 'full-time'" employee'", and I posted that statement there. Now he doubles down, claiming

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."

...which is literally true, but falsely implies, IMHO, that the "announcement" is some soert of retrenchment rather than mere clarifying repetition.

I don't have a dog in this fight, but seeing the dispicable performance of the professoriat nomenklatura all around me and for a long time I am not in the slightest bit inclined to grant them any special privileges. Sue your employer, don't expect him to keep you in the lifestyle to which you've become accustomed. Full stop.

[bevis the lumberjack]

First Amendment rights are now a “special privilege”. Who knew?

[Gandydancer]

You have an employer? You think your "first amendment rights" will save your job if you join some third party effort to screw him over? Good luck with that.

[Sarcastr0]

You want Constitutional rights to apply to private action, now? I don't think that would end how you think it would.

[Gandydancer]

The right to free speech doesn't include the right keep your job while screwing over your employers, in this case the people of Florida.

[bevis the lumberjack]

I’m retired. But I had employers for 35 years. Since lawsuits are unavoidable these days, as a VP I had to give depositions in lawsuits. Since I was under oath I had to answer honestly, and sometimes my honest answers were potentially harmful to the position of my company. No repercussions at all, they expected me to be honest.

Also testified at dozens of regulatory hearings, and at some of them I was cross examined. Again, those questions were designed to generate answers against my employer’s interest. Again, no problem.

You don’t know WTF you’re talking about here.

[Gandydancer]

"You don’t know WTF you’re talking about here."

Don't be any more of a jackass than you can help. Obviously if you "HAD" to give depositions in lawsuits to your company's opponents (presumably because you'd been subpoenaed) that is not remotely the same as "join[ing] some third party effort to screw [your employer] over".

[gormadoc]

There are jobs where you are expected to try to screw over your employer. They might want to become more flexible, ensure they're chasing the right opportunities, or act more ethically, a host of goals that academia, collectively, are expected to pursue.

[Gandydancer]

That's bullshit. These shithead profs are trying to block a voter id law. Nobody imagines that pursuing putrid lefty politics is part of their jobs exceopt the wilfully deluded.

[apedad]

"Sue your employer, don't expect him to keep you in the lifestyle to which you've become accustomed."

One note, retaliation laws are quickly becoming a thing and although the examples below probably don't address the particular issue in this blog, there are more protections now for workers who sue their employer.

From the link below:

Most laws that provide workers with basic rights also prohibit employers from retaliating against workers who assert those rights by, for example, complaining internally, filing a complaint with an administrative agency, or filing a lawsuit. These laws include:

Title VII and other laws prohibiting discrimination. Virtually all antidiscrimination laws also prohibit retaliation against employees who file a complaint, whether internally or with a government agency or court. They also protect employees who participate in an investigation of a discrimination or harassment complaint. (For more on these protections, see Retaliation for Reporting Harassment.)
The Fair Labor Standards Act and state wage and hour laws. Employees who complain about wage and hour violations, such as an employer's failure to pay overtime, pay the minimum wage, or pay employees for work they have done, are also protected from retaliation.
The Occupational Safety and Health Act (OSHA) and similar state laws. Employees who report workplace hazards are protected from employer retaliation.
The Family and Medical Leave Act and similar state laws. Employees who request or take FMLA leave or time off under a state leave law may not be retaliated against.
The National Labor Relations Act. Employees who join or express support for a union, or who otherwise take concerted action to improve their working conditions, are protected from employer retaliation.
Whenever an employee complains, to an employer, outside agency, or court, about a violation of workplace rights, chances are very good that the employee is protected from retaliation.

https://www.employmentlawfirms.com/resources/employment/retaliation/what-employer-retaliation-laws-exist

[Gandydancer]

These employees are not complaining about failure to pay overtime, pay the minimum wage, pay the profs for work they have done, or pursue ANY tort they have against the State of Florida.

[David Nieporent]

Melissa Click was fired, was charged, and reached a plea deal more than five years before the Academic Freedom Alliance was formed, so I'm betting that Gandydancer is up to his usual making-things-up tricks.

[Gandydancer]

Bet? How much do you propose to pay me after you listen to the fucking podcast, jackass? It;s right here on Volokh, just a ferw days ago.

[Gandydancer]

LOL! I said Whittington "falsely implies, IMHO, that the 'announcement' is some soert of retrenchment rather than mere clarifying repetition." Actually the lie is explicit in the headline: "AFA Sends Follow Up Letter to University of Florida After Partial Reversal". https://academicfreedom.org/afa-sends-follow-up-letter-to-university-of-florida-after-partial-reversal/

Also, more apparent dishonesty: I distinctly remember someone characterizing the profs as rich, followed by a back and forth with, I think, Don Nico in which the op posted a link to an online list of UF professors' salaries. The three profs salaries were in the ~$130k range.

This exchange has been removed. https://reason.com/volokh/2021/11/01/academic-freedom-alliance-letter-on-the-university-of-florida-situation/?comments=true#comments

Now, maybe I'm thinking of a different comment thread, but I don't think so.

[Gandydancer]

edit: My memory was faulty. The AFA is NOT the same pressure group as the one the Melissa Click-loving professor interviewed on the mentioned podcast was a functionary in. These nomenklatura all look and sound the same: Entitled to special priviledges. Whittington's just popped up this year, and may just be him.

[David Nieporent]

edit: My memory was faulty. The AFA is NOT the same pressure group as the one the Melissa Click-loving professor interviewed on the mentioned podcast was a functionary in.

Gee, that's the most circuitous way of saying, "David was right" that I've seen all week. I guess you're lucky I didn't see your previous comment in time to bet you.

[David Nieporent]

(Note: I don't actually bet.)

But the irony of Gandydancer's tantrum is that while the AFA is nonpartisan, it almost certainly leans to the right in its efforts and effects, simply by dint of the fact that it's mostly those on the right likely to run afoul of the academy's orthodoxy. (I'm sure Kirkland has a thousand macros already set to go spewing bile about their clingeriness whenever the AFA comes up in a thread in which he's a participant.)

[mydisplayname]

While my sympathies are with the faculty, I do see both sides of this issue.

Each faculty member receiving federal funding voluntarily agreed, as a condition of such funding, not to lobby for or against or speak for or against any issue before any legislature or tribunal: most faculty members (throughout the nation, including Jon Gruber, for example) overlook the meaning of the voluntary agreement... and tend to 'forget' it when convenient. The agreement is not perfunctory.

The sad part is that it is the university, not the faculty member, who is punished for a faculty member's violation of the voluntary agreement: it is the university which must return the funding it received.

[Sarcastr0]

most faculty members (throughout the nation, including Jon Gruber, for example) overlook the meaning of the voluntary agreement... and tend to 'forget' it when convenient.

Disagrees with:
The agreement is not perfunctory.

You can't waive your First Amendment rights.

This seems easy; the university, not the faculty, screwed up. Making people sign something constitutionally suspect is bad practice. Trying to hold them to it is actionable.

[David Nieporent]

You can't waive your First Amendment rights.

I mean, that's not true; consider an NDA.

The question is whether the government can impose a condition that you waive your 1A rights as a condition of employment with the government. Although a more accurate question here would be whether the government actually did do so. The written policy I've found regarding the Univ. of Florida does not have the limitation that the government is now claiming.

It forbids outside work adverse to the university's interests, not the state's. (And, as has been discussed already, testifying that a law is unconstitutional is not against the state's interests anyway, since the state has no legitimate interests in enforcing an unconstitutional law.)

[Sarcastr0]

Yeah, that's fair. I hate NDAs, but they are absolutely legal.

I was being overly facile there; as you said state action cannot require waiver of 1A.

[Toranth]

I work for the government and have a security clearance.
As a condition of my employment, I had to sign an NDA, and I can be fired or go to jail if I violate it. Many people have done so, in fact, to the tune of hundreds or even thousands per year. I suspect that if the courts were going to find the practice unconstitutional in entirety, it would have happened before now.

I'd say it is certainly possible for the government to require waiving your 1A rights as a condition of employment. However, as you said, the first question is "did it".

[Don Nico]

MY,
First the faculty do not receive federal funding of their salary during the normal academic years. They may receive some summer salary from their Federal research grants. There is a difference between lobbying and testifying in court.
Second, the university is not under obligation to return the funding unless it expressly violates a federal or state acquisition regulation or explicit contract.

[gormadoc]

It disgusts me that some so-called conservatives have become so deferential to the state when it agrees with them that they'll lick the boot when it isn't even demanded of them. It should be hard to imagine a conservative speaking so fondly of the "state interest" and supporting unconstitutionally preventing people from speaking in contradiction to it. It should be even more difficult to imagine a conservative flailing about how things should change so the government can have even more control over their employees, even employees in positions meant to be independent. If you want a Deep State the best way to get it is an ever-increasing state with ever-increasing power.

[Bob from Ohio]

Ah, a true conservative speaks.

[Sarcastr0]

You're not a true conservative, you've given up your principles too much to have any actual ideology beyond tribalism.

[Bob from Ohio]

Ah, a liberal opining on what a true conservative is.

[Sarcastr0]

Doesn't take a liberal to recognize that having principles is important to claim membership in an organization with ideals.

[Gandydancer]

They are free to demonstrate their principles by quitting and pursing their interest in screwing over the people of Florida on their own dime.

[bevis the lumberjack]

Stuff is no longer right or wrong anymore to the political types that populate the government and the political media. No need whatsoever for intellectual or philosophical consistency.

It’s all about winning.

[Gandydancer]

Nobody is preventing these execrable profs from speaking, so just stop lying.

[AtR]

The AFA is right on the money with their objection ... employers have been carving out an increasingly large stake in employee's personal lives, and this is a serious threat to our society.

[Gandydancer]

This isn't their "personal lives" -- this is paid work.

[iowatwo]

College coaches have all sorts of speech/expression regulations. That seems to be OK.
Speak about_____ and get fired. So like always. Free Speech is not absolute

[Don Nico]

Those conditions are express contractual obligations that the coach signs as a condition of being paid more than the president of the university that the university retains the right to public statements.

[iowatwo]

Requiring prior approval is the standard agreed to in this case.