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Context: ABC news has published: University of Florida Prohibits Professors from Testifying

The University of Florida is a State College (not a private college) and has indicated the University is a "state actor":

“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," according to an email from an assistant vice president at the university to McDonald that was filed with the court documents.

The University contends:

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.

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).

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.

Questions

In responses, please keep in mind IANAL.

  1. From the professor's viewpoint: What law is violated or what right is abridged?

  2. From the university's standpoint: What law are they invoking to selectively prevent professors from testifying?

  3. Do the states (not just Florida) have the authority to silence citizens in court settings?

  4. 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."?

Although the said 3 professors are paid as subject matter experts, assume that they are willing to testify without compensation.

OBSERVATIONS:

Kaya3 noted and I sensed:

"As UF is a state actor, litigation against the state is adverse to UF’s interests" - 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.

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.

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet
    Nov 1 '21 at 1:27
42

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.

It would be 100% illegal for an employer or anyone else to attempt to prevent a witness of fact from testifying under a subpoena.

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.

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.

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.

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 strict scrutiny, the government must prove that the law or policy is necessary to achieve a "compelling state interest" and is “narrowly tailored”. Restricting opinion on the Constitutionality or otherwise of a particular law doesn’t seem to have either a "compelling state interest" or be “narrowly tailored.”

Personally, I think the University is on a hiding to nothing.

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  • 4
    I think you have indicated that because they have agreed to be an expert they are an officer of the court and can be compelled to testify. If they are compelled by the courts, does this preclude the University from exacting administrative action against the professors (much like a witness of fact)?
    – gatorback
    Oct 30 '21 at 20:53
  • 3
    @gatorback IANAL (and I am not even American) but this seems to be hinge upon how soundly the University worded the employment contract with the professor. If the contract states that they should not take on such a role (as an expert witness) or that they should seek permission from the University before doing so (and they didn't), then it seems obvious that the University is well within its rights to enact administrative sanctions against the professor for contravening his or her contract.
    – Deepak
    Oct 31 '21 at 4:31
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    @Deepak but not if being an expert witness Is protected speech under the first amendment- an unlawful contract term is unenforceable.
    – Dale M
    Oct 31 '21 at 4:35
  • @DaleM I assume by "on a hiding to nothing" you mean even if this move is legally sound (maybe IANAL) it is not the case that the university holds a monopoly on legal expertise and there are plenty of experts outside the university system of Florida who can testify against the state.
    – emory
    Nov 1 '21 at 18:41
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    "...is on a hiding to nothing" - I assume this is some kind of legal phrase. In general, what does this mean? Is there a reference?
    – ouflak
    Nov 2 '21 at 9:54
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The legal basis for the restriction is, according to UF that the "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". The conflict of interest policy explicitly lists as a potential conflict of interest

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.

Given that the potential conflict was apparently reported, §6 says that

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.

The policy mandates that

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.

They define

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.

And furthermore

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

There is, under UF policy, no room for arguing as to whether there is an actual conflict of interest.

In general, a conflict of interest policy would only be subject to rational basis analysis, except when it involves a constitutional right. The university is implicitly taking the position that the policy only applies to paid testimony, so one might conclude that the professors are free to testify for free. But, "free to challenge the government, as long as it's for free" isn't a tenable card trumping the First Amendment: the government is also not allowed to prohibit criticism made for compensation.

Garcetti v. Ceballos, 547 U.S. 410 is possibly relevant, where the court held that

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.

The court found that

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

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).

One would have to inspect the intended testimony to determine whether their testimony was indeed "pursuant to official responsibilities". 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.

It also turns out that UF has a document 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

activities are generally approved, absent unusual circumstances

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.

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet
    Nov 1 '21 at 1:26

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