Criticism by Public University Professor Isn't "Under Color of Law," Can't Be Unconstitutional Retaliation

From today's Eighth Circuit decision in Brown v. Linder, written by Judge Raymond Gruender and joined by Judges James Loken and Steven Grasz:

James Brown and Marc Linder both work for the State of Iowa. Brown is a urologist at the University of Iowa Hospitals and Clinics; Linder is a professor at the University of Iowa College of Law. After Linder criticized Brown's expert testimony in a case unrelated to this one, Brown sued Linder under 42 U.S.C. § 1983, alleging that Linder retaliated against him for engaging in constitutionally protected speech….

According to the complaint, Brown provided expert testimony for a meat-processing company in litigation about the company's compliance with labor regulations. As a board-certified urologist, Brown was asked to opine on the health consequences of the company's bathroom-use policy for its employees. Before, during, and after Brown's testimony, Linder made it known that he disapproved of Brown's support for the company's policy.

First, in the days before Brown's testimony, Linder "registered a verbal complaint" to Karl Kreder, the head of UI's urology department, about Brown. Along with the complaint, Linder sent a series of emails to Kreder in which he referred to Brown's "self-confessed money-driven report, deposition, and hearing testimony." Then, during Brown's testimony, Linder appeared in the gallery wearing a t-shirt that said "People Over Profits." Following the testimony, Linder continued to condemn Brown by making comments in local newspaper articles. In one article, published in both the Waterloo-Cedar Falls Courier and the Cedar Rapids Gazette, Linder stated that Brown's testimony "could have unleashed … terrible consequences for workers of Iowa." In another, published in UI's student newspaper, The Daily Iowan, Linder called Brown a "hired gun" who "had never even published a single scholarly article on urinary incontinence frequency/urgency." These articles attributed Linder's comments to "Marc Linder, a UI law professor whose focus is on labor law" and "Marc Linder, UI Professor of Law," respectively.

In addition to these published comments, Linder allegedly criticized Brown's testimony by stating or implying that Brown wanted "to [M]ake America Great Again by helping his customer," "subordinate[d] … his medical ethics" in order "to pay his kids' college tuition," and wished for workers to "urinate less and kill animals more." Brown does not say when, in what form, or to whom Linder made these criticisms.

Brown says that Linder's "multi-faceted retaliatory vendetta" caused him and his family emotional and psychological distress. Others expressed to Brown their concerns about Linder. Kreder told Brown that he was worried about Brown's safety and advised him to hire a lawyer. Another UI colleague also recommended that Brown hire a lawyer and told Brown that Linder "is harassing the s**t out of you." To protect himself and his family from Linder, Brown bought a gun and a dog….

Section 1983 provides a cause of action against anyone who, "under color of" state law, deprives a person of federally guaranteed rights. To state a claim under § 1983, a plaintiff must allege facts sufficient to show that the defendant's injurious conduct was "fairly attributable to the State," rather than carried out in a "purely private capacit[y]."

Brown argues that his complaint contains ample facts that together plausibly allege that Linder acted under color of state law. These include that Linder (1) identified himself as a state employee when he criticized Brown in the newspaper articles, (2) relied on "the prestige of his official position with [UI] to gain credibility with his audience," and (3) "used the instrumentalities and resources of the State of Iowa to facilitate his retaliatory conduct." Brown further argues that the complaint adequately pleads state action because it alleges, and Linder himself does not contest, that Linder was acting within the scope of his UI employment when he carried out the retaliatory conduct….

[A] state employee, merely by publicly identifying himself as such, does not act under color of state law. See Magee v. Trs. of Hamline Univ. (8th Cir. 2014). In Magee, we held that a plaintiff failed to plead that a police officer acted under color of state law when her complaint alleged only that the officer identified himself as a state employee in a newspaper editorial disparaging the plaintiff. We explained that to act under color of state law, a state employee must "exercise power possessed by virtue of state law and made possible only because [he] is clothed with the authority of state law." Because the complaint failed to identify any relationship between the officer's conduct and the performance of his duties as a state employee, the plaintiff did not adequately allege conduct under color of state law….

Even assuming that a public-university professor acts in his official capacity or within the scope of his employment when he comments on public
affairs, it would not necessarily follow that he acts under color of state law. See Polk Cnty. v. Dodson (1981) (holding that a public defender does not act under color of state law when "exercising her independent professional judgment in a criminal proceeding"). Indeed, we have suggested that, at least for certain state employment, whether a defendant's conduct is "fairly attributable to the state" depends more on the degree of control that the state exercises over such conduct than on the mere fact that the conduct was within the scope of the defendant's employment. See Montano v. Hedgepeth (8th Cir. 1997). In Montano, we held that a state prison chaplain did not act under color of state law when conducting ecclesiastical activities within the scope of his employment. We observed that, because a prison chaplain's pastoral acts are constitutionally enshrined and not "subject to governmental pressures," such acts, unlike his administrative or managerial acts, are not "fairly attributable to the state." Montano thus demonstrates that "[e]ven when state employees are performing the services for which the state pays them, they may not be state actors while performing functions that the state has no right to control." …

The bare assertion that Linder identified himself as a UI law professor and acted within the scope of that employment when he criticized Brown is not enough to allege plausibly that Linder's conduct was state action. Nothing in Brown's complaint indicates that Linder's criticisms involved an exercise of "power possessed by virtue of state law" or were "made possible only because [Linder] [wa]s clothed with the authority of state law." And absent from the complaint is any detail about what Linder's official duties as a state employee include or how his conduct was facilitated by state resources. Without facts like these, Brown fails to allege that Linder's condemnation was anything other than "purely private." …

At the end of the day, we do not doubt that the public might regard a law professor's views on expert testimony as particularly authoritative. Indeed, it is certainly possible that Linder's occupation brought attention to, or elevated the credibility of, his criticism of Brown. Nonetheless, that Linder happens to work for a public university rather than a private one does not, by itself, mean that his conduct was under color of state law.

{We thus need not consider the district court's separate conclusion that Brown failed to allege that Linder's conduct would chill a person of ordinary firmness from engaging in protected speech.}

In theory, Brown may still be able to sue Linder for defamation, but that would be a state-law claim in state court.

Seems to be clearly the right result to me. When I criticize someone in public (someone over whom I have no legal authority), I'm not wielding state power; I'm just speaking.

Disclosure: My UCLA First Amendment Amicus Brief Clinic student Michael Quinan and I had filed an amicus brief on behalf of the Foundation for Individual Rights and Expression arguing for this result.