freedom-of-speech first-amendment
University prohibits professors from testifying
<p>Context: ABC news has published: <a href="https://abcnews.go.com/US/wireStory/university-florida-prohibits-professors-testifying-80874881" rel="noreferrer">University of Florida Prohibits Professors from Testifying</a></p>
<p>The University of Florida is a State College (not a private college) and has indicated the University is a &quot;state actor&quot;:</p>
<blockquote>
<p>“UF will deny its employees’ requests to engage in outside activities
when it determines the activities are adverse to its interests. As UF
is a state actor, litigation against the state is adverse to UF’s
interests,&quot; according to an email from an assistant vice president at
the university to McDonald that was filed with the court documents.</p>
</blockquote>
<p>The University contends:</p>
<blockquote>
<p>In its statement, the University of Florida said the decision not to
let the professors perform outside paid work wasn’t denying them their
First Amendment rights or academic freedom.</p>
</blockquote>
<p>If indeed the University is an extension of the state of Florida, let us assume that criminal prosecution is off the table and that professors face some form of University administrative penalty (in all likeliness being fired, demotion, or similar pressure).</p>
<p>In the absence of all the details: Assume that there is no contractual employment constraint that professors have signed that would support the University's reasoning.</p>
<h1>Questions</h1>
<p>In responses, please keep in mind IANAL.</p>
<ol>
<li><p>From the professor's viewpoint: What law is violated or what right is abridged?</p>
</li>
<li><p>From the university's standpoint: What law are they invoking to selectively prevent professors from testifying?</p>
</li>
<li><p>Do the states (not just Florida) have the authority to silence citizens in court settings?</p>
</li>
<li><p>Is there a standard, which the University must meet in order to establish the claim that: Testimony challenging voting restriction rights is “adverse to the university’s interests as a state of Florida institution.&quot;?</p>
</li>
</ol>
<p>Although the said 3 professors are paid as subject matter experts, assume that they are willing to testify without compensation.</p>
<h1>OBSERVATIONS:</h1>
<p>Kaya3 noted and I sensed:</p>
<blockquote>
<p>&quot;As UF is a state actor, litigation against the state is adverse to
UF’s interests&quot; - this seems to take the position that suing the state
cannot advance the state's interests, i.e. that the state always
accurately encodes its own interests in its own legislation. I wonder
if the author of this statement consulted any political science
experts.</p>
</blockquote>
<p>I would think that a clever attorney could make a similar argument that it is in the interest of the state that any and all arguments regarding voting rights are heard in a court of law.</p>

<p>It’s important to bear in mind that there is a difference between expert witnesses and witnesses of fact: expert witnesses must consent to testify (with or without payment), witnesses of fact can be compelled to testify.</p>
<p>It would be 100% illegal for an employer or anyone else to attempt to prevent a witness of fact from testifying under a subpoena.</p>
<p>For an expert witness, the person must agree to be an expert and an employer might lawfully and reasonably prohibit them doing so. They might prohibit expert witness work in general as distracting from their core business or they might prohibit it in certain cases where they feel association might damage their brand. Such a prohibition might reasonably extend to the employee moonlighting as an expert witness on their own time.</p>
<p>However, such a restriction can’t be applied post-hoc. Once a person has agreed to be an expert they are now an officer of the court and can be compelled to testify.</p>
<p>What is a reasonable restriction on an employee’s activities depends on the employment contract, the nature of the employer’s business and the employee’s role. University professors are usually guaranteed academic freedom - the ability to write and say whatever they like within their field irrespective of if it is controversial or offensive. This is often a part of a collective bargaining agreement and/or written into individual contracts. Expert testimony within their field (and they couldn’t be experts outside their field) would fall within this.</p>
<p>Further, when the employer is a State actor, such a prohibition might infringe the employee’s first amendment rights. Now, these rights are not unfettered - the FBI can prohibit their agents from discussing cases and the Department of State can prohibit its employees from disclosing diplomatic negotiations. However, such restrictions are subject to <a href="https://en.wikipedia.org/wiki/Strict_scrutiny" rel="noreferrer">strict scrutiny</a>, the government must prove that the law or policy is necessary to achieve a &quot;compelling state interest&quot; and is “narrowly tailored”. Restricting opinion on the Constitutionality or otherwise of a particular law doesn’t seem to have either a &quot;compelling state interest&quot; or be “narrowly tailored.”</p>
<p>Personally, I think the University is on a <a href="https://www.collinsdictionary.com/dictionary/english/on-a-hiding-to-nothing" rel="noreferrer">hiding to nothing</a>.</p>

<p>The legal basis for the restriction is, <a href="http://statements.ufl.edu/statements/2021/october/university-statement-on-academic-freedom-and-free-speech.html" rel="noreferrer">according to UF</a> that the &quot;university denied requests of these full-time employees to undertake outside paid work that is adverse to the university’s interests as a state of Florida institution&quot;. The <a href="https://policy.ufl.edu/policy/conflicts-of-commitment-and-conflicts-of-interest/" rel="noreferrer">conflict of interest policy</a> explicitly lists as a potential conflict of interest</p>
<blockquote>
<p>9: Expert Witness/Legal Consulting: You serve or you are seeking
approval to serve as an expert witness and/or engage in consulting in
a legal matter like a lawsuit or a potential lawsuit.</p>
</blockquote>
<p>Given that the potential conflict was apparently reported, §6 says that</p>
<blockquote>
<p>For activities and interests disclosed through UFOLIO, the Assistant
Vice President for Conflicts of Interest and, depending upon the type
of activity or interest, other applicable designated University
officials, will determine whether a disclosed activity, interest or
circumstance presents a Conflict of Interest. In addition to an
Employee’s obligation to report a potential Conflict of Commitment to
the Employee’s supervisor, University supervisors shall be responsible
for identifying any Conflict of Commitment of their direct reports and
managing the conflict appropriately.</p>
</blockquote>
<p>The policy mandates that</p>
<blockquote>
<p>University Employees’ primary professional obligation, however, is to
act in the best interest of the University and to maintain the highest
ethical and professional standards. A University Employee’s Outside
Activities or interests must not conflict, or appear to conflict, with
their professional obligations to the University of Florida.</p>
</blockquote>
<p>They define</p>
<blockquote>
<p>Conflict of Interest: occurs when a University Employee’s financial,
professional, commercial or personal interests or activities outside
of the University affects, or appears to affect, their professional
judgement or obligations to the University.</p>
</blockquote>
<p>And furthermore</p>
<blockquote>
<p>If the University determines an Outside Activity will result in a
Conflict of Commitment, the University may, in its sole discretion,
prohibit the individual from engaging in the activity; require the
individual take personal time off or a leave of absence to participate
in the activity; or implement other measures the University deems
reasonably necessary</p>
</blockquote>
<p>There is, under UF policy, no room for arguing as to whether there is an actual conflict of interest.</p>
<p>In general, a conflict of interest policy would only be subject to rational basis analysis, <em>except</em> when it involves a constitutional right. The university is implicitly taking the position that the policy only applies to <em>paid</em> testimony, so one might conclude that the professors are free to testify for free. But, &quot;free to challenge the government, as long as it's for free&quot; isn't a tenable card trumping the First Amendment: the government is also not allowed to prohibit criticism made for compensation.</p>
<p><a href="https://supreme.justia.com/cases/federal/us/547/410/" rel="noreferrer">Garcetti v. Ceballos</a>, 547 U.S. 410 is possibly relevant, where the court held that</p>
<blockquote>
<p>When public employees make statements pursuant to their official
duties, they are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their communications
from employer discipline.</p>
</blockquote>
<p>The court found that</p>
<blockquote>
<p>a government entity has broader discretion to restrict speech when it
acts in its employer role, but the restrictions it imposes must be
directed at speech that has some potential to affect its operations</p>
</blockquote>
<p>The only interpretation that I can see that the testimony could adversely affect the university is that it might anger politicians who would retaliatorily punish the university (this is or has been a common concern / pretense within the halls of academe).</p>
<p>One would have to inspect the intended testimony to determine whether their testimony was indeed &quot;pursuant to official responsibilities&quot;. Political science professors do on occasion get involved in university-sponsored contractual work, so this the most viable path that I can see for restricting the testimony.</p>
<p>It also turns out that <a href="https://coi.ufl.edu/wordpress/files/2020/05/UFOLIO-Review-Level-Examples.pdf" rel="noreferrer">UF has a document</a> that articulates the basis for conflict of interest reviews in greater detail, and it says that Writing/Editing/Speaking and Expert Witness/Legal Consulting are the two categories of lowest scrutiny, and such</p>
<blockquote>
<p>activities are generally approved, absent unusual circumstances</p>
</blockquote>
<p>where no unusual circumstances have so far been publicly suggested. This contradicts the impression of Standard Operating Procedure that the university has attempted to convey.</p>
