Brown v. Linder

In 2021, James Brown, a professor of urology at the University of Iowa, sued Marc Linder, a law professor at the University who specializes in labor law. The lawsuit arose out of Linder’s opposition to Brown serving as an expert witness in a labor dispute over the Swift Pork Company’s employee bathroom break policies. Linder, believing Brown’s testimony would be detrimental to workers, complained to the head of Brown’s department, criticized Brown in an interview with the Cedar Rapids Gazette (arguing that Brown’s testimony “could have unleashed . . . terrible consequences for workers of Iowa”), and said in an opinion piece for the Daily Iowan that Brown was among the “hired guns” serving “private profit-making defendants.” During Brown’s deposition, Linder stood outside wearing a shirt reading “People Over Profits.”

Brown sued Linder, arguing that because Linder was a professor at a public university, his criticism of Brown was state action amounting to retaliation for Brown’s exercise of First Amendment rights. A federal district court rejected that argument and Brown appealed.

On July 19, 2022, FIRE filed an amicus brief in support of Linder in the United States Court of Appeals for the Eighth Circuit. FIRE argued that Linder, although an employee of a public institution, was not acting under color of law and that courts should be reluctant to attribute the speech of faculty to the institutions that employ them. Even if Linder were acting under color of law, his criticism of Brown would not amount to retaliation: Faculty members in particular must recognize that criticism and public disagreement come with the job. FIRE’s brief was principally authored by Eugene Volokh and Michael Quinan, a UCLA law student, as part of the First Amendment Amicus Clinic at the UCLA School of Law.