In letter to University of Florida, FIRE demands university rescind controversial decision banning professors’ voting rights testimony 

Following the University of Florida’s decision to prohibit three professors from serving as experts in voting rights litigation — because, the university claims, their testimony will be “adverse” to the state of Florida’s interests — FIRE has written a letter calling on UF to change course.

The New York Times first reported on UF’s controversial decision late Friday, identifying the unusual and illiberal restriction as “an extraordinary limit on speech that raises questions of academic freedom and First Amendment rights.” After FIRE warned UF on Saturday morning that its decision is squarely at odds with the First Amendment, UF released a statement claiming the academic freedom and free speech rights of the three faculty members had not been violated.

Despite the university’s spin, that is simply not true. As FIRE explains in our letter, UF’s decision to block the professors’ testimony is not only unconstitutional, but also flies in the face of the university’s own promises to uphold the First Amendment rights of its faculty. The university must reverse this decision immediately.

Professors’ testimony called ‘conflict of interest’

UF’s decision to block the three professors from testifying is so outrageous that the administration can’t keep its story straight.

It is unconstitutional for UF to interfere with or otherwise prohibit these professors from providing expert testimony in a trial involving a state law.

The three professors — political scientists Sharon Austin, Michael McDonald, and Daniel Smith — were informed the week of Oct. 10 that UF had denied their requests to testify in a lawsuit against Senate Bill 90. According to the dean of the College of Liberal Arts and Sciences, UF refused to permit Smith to testify because doing so “may pose a conflict of interest to the executive branch of the State of Florida.” In another email sent to McDonald by UF’s assistant vice president for conflicts of interest, the administrator explained that “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.”

Lawyers representing the professors vowed to file a lawsuit if the decision was not reversed, and FIRE released a statement on Saturday morning calling on UF to respect the constitutional rights of faculty. A few hours later, UF released a statement of its own, claiming that “the university did not deny the First Amendment rights or academic freedom of professors Dan Smith, Michael McDonald and Sharon Austin,” but instead  “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.”

On Twitter, McDonald was apparently surprised by the university’s statement, writing: “Our compensation was not given as a reason in the original disapproval from UF. That is new language the university added in its PR statement.”

To cap off a busy weekend juggling self-inflicted problems, in remarks published yesterday in The Gainesville Sun, UF’s director of issues management and crisis communications shifted the university’s official position yet again. She reiterated that participation in the lawsuit would be harmful to the university’s interests, but added, “if the professors wish to do so pro bono on their own time without using university resources, they would be free to do so.”

As FIRE stated in a letter today, there seems to be some confusion among UF administrators regarding the constitutional rights of faculty: 

Restricting faculty members from participating in a judicial proceeding as expert witnesses is a profound violation of their First Amendment rights and academic freedom . . . Faculty members at public universities do not “relinquish First Amendment rights to comment on matters of public interest by virtue of government employment.” This includes the right to testify in court.

In its 2014 ruling in Lane v. Franks, the Supreme Court held: “Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment.” Based on the Supreme Court’s holding in Lane, it is clear that UF may not attempt to intervene with the professors’ clearly established right to provide truthful testimony. As FIRE further explained in our letter:

While their testimony would draw on their academic expertise, Professors Smith, Austin, and McDonald would serve as expert witnesses in Florida Rising Together v. Lee in their personal capacities, not as employees speaking on behalf of UF . . . Providing testimony in court is not within these professors’ ordinary job duties, and UF’s disclosure requirements acknowledge that their legal consulting falls under “outside activities.”

The professors’ testimony “can be fairly considered as relating to any matter of political, social, or other concern to the community,” as required to be a matter of public concern . . . The enactment of S.B. 90 has generated extensive national media coverage, and the professors’ expert opinions on its validity or potential impact on voting in state and national elections, indisputably constitute speech on issues of substantial public interest.

In other words, it is unconstitutional for UF to interfere with or otherwise prohibit these professors from providing expert testimony in a trial involving a state law. It doesn’t matter if the professors are paid for their labor, or if the labor is provided pro bono. They have a right to testify. Period.

UF’s blatant disregard for the free speech rights of its faculty is especially disconcerting because of the school’s laudable commitments to protect those rights. As stated in our letter:

UF claims a commitment to upholding its First Amendment obligations that “runs deeper than simply a legal requirement.” UF promises not to “stifle the dissemination of any idea, even if some members of our community find it wrong-headed, offensive, or hateful.” University policy recognizes that “academic freedom and responsibility are essential to the full development of a true university”  and “integral to the conception of the University as a community of scholars engaged in the pursuit of truth and the communication of knowledge in an atmosphere of tolerance and freedom.”  To that end, a “faculty member must fulfill his/her responsibility to society and to his/her profession by manifesting academic competence, scholarly discretion, and good citizenship.”

UF’s actions this past week fly in the face of those commitments and its First Amendment obligations.

UF must change course immediately. Not only is it the right thing to do, but it will very likely also save the university lots of time and taxpayers lots of money. Plymouth State University’s ill-considered decision to punish faculty who had testified in a trial ultimately resulted in a $350,000 settlement against the university.

FIRE warned Plymouth State then, and we’re warning UF now: If you pick a fight with the First Amendment, you will lose.