The University of Florida Can Prevent Professors from Taking Paid Work Suing the State
And once again, Florida is not a one-man authoritarian dictatorship.
And once again, Florida is not a one-man authoritarian dictatorship.
I n their Ahab-like effort to sink Florida governor Ron DeSantis, congressional Democrats and progressive pundits have jumped aboard the story, reported by Michael Wines of the New York Times on Friday, that the University of Florida has denied permission to three of its professors to take paid outside work as expert witnesses in a case suing the state of Florida over its latest voting and elections law. Bill Kristol has been one of the most hysterical critics, comparing DeSantis to an “authoritarian”:
The Orban model. DeSantis following Orban’s lead in trying to curb free speech at state-funded universities.
— Bill Kristol (@BillKristol) October 30, 2021
To the conservative commentators going on–wishfully or disingenuously–about how GOP governors like Abbot and DeSantis are the future and there's NOTHING authoritarian about them: You guys good with the TX vigilante law? You fine with FL professors being denied academic freedom?
— Bill Kristol (@BillKristol) November 1, 2021
Glenn Youngkin has repeatedly expressed admiration for Florida governor Ron DeSantis:
“He’s pretty special."
“I deeply respect him."Does he admire Florida’s new assault on academic freedom? Would Glenn Youngkin’s Virginia follow in Ron DeSantis’ authoritarian footsteps?
— Bill Kristol (@BillKristol) October 31, 2021
The critics are missing some important points. To start with, the DeSantis angle is a stretch. Neither the Times report, nor follow-ups by Andrew Jeong and Greg Sargent of the Washington Post, has thus far unearthed a shred of evidence connecting the governor or his office to the decision. DeSantis’s office has said in a statement that it was not involved in the decision: “The governor’s office did not create UF’s policy on conflicts of interest, nor did the governor tell the university — directly or indirectly — how to enforce their own policy.” Sargent notes that the absence of evidence is, itself, being cited by Democrats as grounds for national hearings targeting a single decision by a single state university:
Democratic members of Congress from Florida are set to come out sharply against the decision, I’m told, and depending on how things go, this could result in congressional hearings. . . . The DeSantis angle here is potentially very troubling. DeSantis, it turns out, has top allies at the university, such as Morteza Hosseini, who is both head of the university’s board of trustees and a big GOP donor and close DeSantis adviser. It’s not clear whether those allies — or DeSantis himself — are behind this decision. But the lawyers for the plaintiffs are seeking to question DeSantis about his potential involvement as part of their litigation, and the Times reports that DeSantis has “resisted questioning.”
As has happened in prior efforts to take down DeSantis, Democrats have simply assumed that every government decision in Florida must have been personally micromanaged by the governor. Which, if it was true, would be quite an endorsement of DeSantis’s superhuman managerial powers, given that there are more than 1.1 million people working for state and local government in Florida.
Leaving aside DeSantis to focus on the university’s decision, let’s make clear what this controversy is, and is not, about — a point on which even thoughtful commentators such as David French and Robert P. George seem confused.
Completely agree. The University of Florida is prohibiting professors from testifying against Florida’s new voting regulations. Profoundly unconstitutional. Illiberalism is breaking out all over. https://t.co/xqBumNPgFh
— David French (@DavidAFrench) October 30, 2021
First of all, contrary to what Daniel Drezner argues, this is not about “cancel culture,” and is not comparable to it. The professors were not fired, disciplined, or even subjected to public criticism, unlike the case that FIRE cited in its press release criticizing UF. Nothing was done to harm their jobs or their reputations. They were simply told what sort of outside employment was not permitted.
Second, this is also not about illiberalism. If the professors were restricted from producing academic papers on the Florida elections law, or were told they could not write op-eds on the subject, that would amount to a restriction on their academic freedom. If they were told that they could not volunteer for a political campaign, or even that they could not donate money to groups suing the state, that would be a restriction on their civil liberties as private citizens outside their employment. Yet none of those happened things happened; nor did the university object to the professors working as experts in lawsuits against other states. But if you step back and ask, as a matter of first principles, whether professors at state universities should always and everywhere be free of restraints on taking paid work assisting lawsuits against the very state that pays their salaries, it’s not clear why that should be considered a classical-liberal value.
Expert testimony takes the form of speech, of course, but its function is not that of speech; it is a verbal act, with distinct legal consequences. Expert witnesses are not there to compete in the public marketplace of ideas in order to bring citizens closer to an understanding of truth. Indeed, it is often the case in litigation that expert reports and expert deposition testimony are sealed from public view. Expert testimony matters because it counts as evidence that advances one side of a lawsuit. Whether it is even allowed in a court case depends upon the rules of evidence, but nobody thinks it is a violation of free speech for judges to bar testimony that violates the rules of evidence. Prohibitions on serving as a paid expert witness should really be analyzed as limits on conduct moreso than as limits on speech.
Sargent seems baffled by the concept that public employees fighting the very state that pays their salary in court are in any way acting adverse to the state:
The university’s rationale is strange and opaque. It’s not immediately clear why testifying in this lawsuit would be contrary to the university’s “interests.” . . . In what sense would the university’s role as part of the state mean the professors’ participation in the lawsuit is contrary to their interests?
The concept, however, is a familiar one to lawyers. In any number of contexts, we recognize that employees are not entirely free to take actions against their own employer. A lawyer for the University of Florida would likely be fired, and face discipline from the state bar, for appearing as an expert witness against the university, and perhaps for appearing against the state without the university’s permission. While academics are not bound by a code of ethics or a duty of loyalty to their employers, they are still employees of the state, paid by the state. It is not at all an unreasonable rule, as a matter of principle, to say that people filing lawsuits against the state cannot pay hired-gun experts on the state’s own payroll to advance their cause — experts who then use the imprimatur of their status as state-university professors to make the case against the state before a judge or jury.
This is certainly the federal government’s view. Multiple federal agencies have regulations in place limiting the circumstances in which their employees may appear as expert witnesses in cases adverse to the United States government, and nobody seriously thinks that the First Amendment prohibits the federal government from enforcing any such rules. For example, the Department of Justice’s website states:
An employee may not receive compensation for the representation of anyone before an agency or court of the Federal Government on a matter in which the United States is a party or has a substantial interest. This prohibition applies whether the employee renders the representation himself or shares in compensation from someone else’s representation. An employee also may not represent anyone before an agency or court of the Federal Government, with or without compensation, on a matter in which the United States is a party or has a substantial interest . . .
An employee may not serve as an expert witness in her private capacity in any proceeding before the United States in which the United States is a party or has an interest, unless specifically authorized.
This is not limited to DOJ lawyers; the policy applies to all personnel. These prohibitions derive from two federal statutes (18 U.S.C. §§ 203, 205) and a federal regulation (5 C.F.R § 2635.805). The regulation applies to the entire executive branch, and in some cases, even to people who serve temporarily on government commissions:
An employee shall not serve, other than on behalf of the United States, as an expert witness, with or without compensation, in any proceeding before a court or agency of the United States in which the United States is a party or has a direct and substantial interest, unless the employee’s participation is authorized by the agency [if] the designated agency ethics official determines that the employee’s service as an expert witness is in the interest of the Government; or The designated agency ethics official determines that the subject matter of the testimony does not relate to the employee’s official duties.
The Department of Homeland Security further specifically restricts, by regulation, its current employees from giving expert testimony based upon “information which they acquired in the scope and performance of their official Department duties, except on behalf of the United States or a party represented by the Department of Justice.” Similar regulations apply to employees of the State Department, the Bureau of Consumer Financial Protection, and even the Corporation for National and Community Service. Senate ethics rules and state laws have a variety of rules of their own.
One can debate how broadly these ought to sweep. One can even debate how far public employers can go in restricting outside employment that is adverse to the government in a legal proceeding. But what the professors are asking for here is to be treated different from most other government employees in being wholly unrestricted in seeking paid work opposing their own state government in court.
The fairer complaint here is that the university may not have applied its policy in an evenhanded way, and even if it did, it may have failed to properly communicate its policy to the professors. On Saturday, UF issued a press statement suggesting (as it clarified later) that the professors were free to testify, but not to be paid:
It is important to note that the university did not deny the First Amendment rights or academic freedom of professors Dan Smith, Michael McDonald and Sharon Austin. Rather, 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 professors claim that they were never told this. If true, then this reeks of backtracking on a decision that was not properly thought through. The university policy is apparently of fairly recent vintage, not having been in place when at least one of the professors served as an expert witness in a 2018 lawsuit against other Florida voting laws. The university promised in a further statement by the university’s president and provost on Monday to review its conflicts policy, which suggests again that insufficient thought was put into the policy in the first place to ensure that it applies consistently and does not sweep too broadly:
We are immediately appointing a task force to review the university’s conflict of interest policy and examine it for consistency and fidelity. While the existing policy was revised just last year, it is critical to ensure the policy advances the university’s interests while protecting academic freedom. . . . As has already been reported by some news organizations, if the professors wish to testify pro bono on their own time without using university resources, they are free to do so.
Florida is not, after all, some sort of one-man authoritarian dictatorship.