University of Florida Bars Professors From Testifying Against New State Voting Rules

There is a troubling report in The New York Times of another free speech fight on one of our campuses. Three University of Florida political science professors have told a federal court that the university barred them from assisting plaintiffs in a challenge to the state’s new voting laws. As state employees, they were told that litigating against a state law would be “adverse to U.F.’s interests.” That is a departure from long-standing practices at state universities. It constitutes an obvious attack on the free speech and associational rights of these faculty members as well as academic freedom. The plaintiffs in the challenge wanted to retain Daniel Smith (the chair of the university’s political science department), Michael McDonald, and Sharon Wright Austin.They asked for permission from the dean of the university’s college of arts and sciences, David E. Richardson, who rejected the requests on the grounds that “outside activities that may pose a conflict of interest to the executive branch of the state of Florida create a conflict for the University of Florida.”

The faculty members, however, noted that approval was granted in 2018 in litigation against the state.

The university spokesperson, Hessy Fernandez, insisted

“The university did not deny the First Amendment rights or academic freedom . . .  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.”

I disagree.  Professors in state schools routinely assist in research and litigation against state agencies or policies. Law professors often write amicus briefs on constitutional or statutory challenges. Indeed, such work has a long tradition in public interest projects, including death penalty challenges, environmental advocacy, and litigation for equal rights. Universities are not arms of the executive branch like the office of the Florida Attorney General or the department of corrections. They do not bind the government or create waivers on behalf of the state in litigation.

The bar on such expert testimony would also put the state on the slippery slope of censorship. For example, professors write books, research papers, and opinion pieces that are critical of state policies and are often cited in litigation. There is, of course, a distinction between directly participating in a legal challenge and indirectly supporting such a challenge through scholarship. However, if employees cannot assume an “adverse” position to the state, the same logic could be used to bar other forms of academic expression like preparing a “white paper” on possible challenges or directly refuting the data used to support a policy.

Finally, these professors are not basing their research on data or resources that are not available to the public at large. These are not correctional guards using their access to state facilities to help challenge state correctional policies.

There is no compelling reason to bar such work. The state could argue that a jury might view a University of Florida professor as a representative of the state. However, a court can make it clear that the professor is appearing in his own capacity and not as a representative of the state.

Florida’s voting rights changes must rise or fall on their merits. It is in the interest of the public for the best available experts on both sides to be heard.  Some of those experts will come from state schools.

Not only is this rule barring valuable experts from important litigation, but it invites arbitrary or opportunistic decisions. A university could bar faculty based on the content of their views. So three professors supporting the voting rights changes might not be “adverse” and therefore allowed to testify in such a case.

Ironically, the case smacks of an academic version of the recent court martial of Lt. Col. Stuart Scheller Jr. for criticizing the withdrawal from Afghanistan. Unlike the military, however, there is not a tradition of “good order and discipline” in academia that bars criticism of one’s superiors in public. To the contrary, academic positions allow scholars to challenge orthodoxy and authority, including the state itself.

In other words, it is a nightmare for free speech as well as good government values. The decision on the three professors should be rescinded and a new policy promulgated to allow state faculty members the same freedom as faculty members at private universities.

 

62 thoughts on “University of Florida Bars Professors From Testifying Against New State Voting Rules”

  1. I am trying to create a situation where my employer would allow me to be hired to argue against the interests of my employer, under oath, using my company credentials as bona fides. I can’t come up with that scenario. These professors are nothing without their credentials. The reason the prosecutor wants these specific names rests entirely on there ability to argue against their own interests. Three different Profs from a different States would not provide the optics the lawyers are looking for.
    From that perspective, this has nothing to do with free speech. The Profs could speak their mind in any venue, except under oath.

    1. An exactly….the question is are they experts or using credentials. I don’t know and can’t state either way. But can’t employers ban ” moonlighting”? Military officers for example can’t moonlight as waitresses etc. Or use their rank/position off duty. Those teachers in New York are prohibited other jobs for working because the wouldn’t take the jab. Seems like employers have a lot of say nowadays. If they can tell you to get a jab they sure he’ll can tell you to shut up. If these are govt workers well……they could quit to exercise their rights. Seems to be the current flavor of coercion today.

  2. While I may not agree with the professors philosophicly. They do have a right to promote their viewpoint.

  3. They are state employees. Working against their employer would constitute a conflict of interest. The plaintiffs, who are no doubt Democrats, can find somebody else to testify, somebody not part of the Florida state university system.

    1. Semcgowanjr, I started my comment before noon, and just finished up my thought and posted now, after coming in from cleaning the garage.

      I find your logic impeccable sir.

  4. Jonathan: Finally. You have come down on the side of real academic freedom, i.e., the right of three University of Florida (UF) professors to act as expert witnesses in a case challenging Gov. DeSantis’ new racist voting laws. Among other things the new laws make it more difficult to vote by mail. Democrats, particularly Black voters, more frequently vote by mails then do Republicans. The chair of UF’s board of trustees is a close ally of DeSantis. The idea that a university must be be aligned with the political interests of a governor or any other office holder violates the bedrock of academic freedom. Unfortunately, the UF case is not a one off. In North Carolina the state university system’s Board of Governors recently barred the UNC Chapel Hill School of Law’s Center of Civil Rights from engaging in litigation defending voting rights. One conservative member of the Board complained a lawsuit by the Center was a “waste of taxpayer money”.

    You have wasted a lot of column space discussing alleged censorship and the “free speech” rights of conservative university professors and students. But it’s nice to see you have finally “woke” to the more serious threats to academic freedom all around you. Keep it up!

          1. Bob says:

            “The biggest problem this country has is white liberals.”

            Let me help you out here:

            “White liberals are this country’s biggest problem.”

            See the difference? Now you try it.

  5. University spokesperson, Hessy Fernandez, provided the explanation that “The university did not deny the First Amendment rights or academic freedom . . . 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.” That is certainly a valid reason for excluding Daniel Smith, Michael McDonald, and Sharon Wright Austin, especially since Daniel Smith is employed by the University. If they want to present some leftist viewpoint that internal controls and anti-fraud measures over voting are a bad thing, then they should agree to do so without getting paid by some third party. This Univeristy decision has absolutely nothing to do with free speech or the First Amendment. While it’s certainly understandable that people who favor allowing fraudulent voting practices would also favor having individuals speak on this subject to agree with their desire for fraudulent voting practices to continue unabated, paying them to do so is highly inapprorpriate, to say the least. Why don’t they agree to make their pro-fraudulent voting presentations for free? Just because Daniel Smith, Michael McDonald, and Sharon Wright Austin may be professional presstitutes does not give them the automatic right to get a platform to promote their leftist agenda.

    1. There is no rationale for the denial by a public institution of rights, freedoms, privileges and immunities provided to individuals by the Constitution and Bill of Rights.

      The constitutional rights and freedoms of individuals are superior to the rights of any public organization.

      A private institution retains sole power to “claim and exercise” dominion over its property.

      Americans enjoy the freedoms of speech, thought, religion, belief, assembly, segregation, etc.
      __________________________________________________________________________

      1st Amendment

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
      _______________________________________________________

      “[Private property is] that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

      – James Madison

  6. “The university did not deny the First Amendment rights or academic freedom . . . 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.”

    – University of Florida
    _________________

    This statement constitutes actionable convoluted prevarication and perjury. There is no rationale for the denial by a public institution of rights, freedoms, privileges and immunities provided to individuals by the Constitution and Bill of Rights. This false statement admits the criminal act of denying constitutional rights to employees or contractors by a public institution, whereas a private university constitutes private property, the owners of which retain the sole power to “claim and exercise” dominion.
    ___________________________________________________________________

    “[Private property is] that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

    – James Madison

  7. Yeah, we really don’t want those pesky experts in constitutional law pointing out how the law is unconstitutional. After, all, Tucker and Hannity aren’t there to counter what they say with ies and the disciples might just start believing the truth.

    1. It is messes like this that we create when the state enters into domains that are not its business.

      This is trivial – there should be no “public” universities.

      Then there is no conflict.

      That said I have zero problems with the professors speaking,
      Lets let everyone speak freely – whether on the right or the left,
      Whether you like what they say or you do not.

      Whether you are a university professor or a media talking head, or just a guy on the street
      You should be free to speak.

      If your words have the power to prove as lies those made by others – let that be tested.

      Let us all judge for ourselves – hearing every voice that we as individuals choose to listen to – not those someone else chooses for us.

      1. but all voices are not heard and so the fact that their voices got cancelled is no different than all the other voices that are being cancelled every day. People are being fired from jobs for merely saying they don’t agree with someone’s point of view. Or from some stupid point of view/ or something they said 15 or 18 years ago. Maybe by happening to law professors they will object not only to their own denial of rights but for others too.

    2. And you talk about right wing conspiracy theories ?

      So what are Hannity and Carlson doing – sending zombie encoded dog whistles via sub-audible channels in the stream ?

      You are demanding free speech for some college professors – but you want to silence Hannity and Carlson ?

  8. Is the apology to restrict testimony or advocacy, diverse or uniform, “=” or equal, disparate or the same, affirmative discrimination or affirmative action?

  9. They can be called as witnesses to explain or “defend” their research and related writings that they have already completed….no problem with that.

    They cannot be paid collaborators with the actual presentation of the plaintiffs challenge to the Voting Law….as they are full time employees of the State of Florida….no matter who they wish to spin their paid gig at the University.

    I side with the the State on this one.

    To me the issue is the payment for testimony and the direct involvement in preparing the case for which they are being paid to do….and the fact they are State Employees and the case targets the State Government they are employed by.

    Were they not in a paid capacity by the Plaintiff I would support the Professor’s position as he states.

    In business for sure….you take a part time job working for a competitor and you will be confronted with losing your full time job unless your employer grants you permission to work for that competitor.

    1. You missed the part where JT pointed out that university professors testifying against the state is common. What makes this case different?

      1. At issue is the constitutionality of the law.

        To the extent there are subject matter experts on that – those would be lawyers and judges – not political science professors.

    2. There is no research or related writings issue here.

      The constitutionality of the law is being challenged.

      That is a question of the clear meaning of the text of the law and the constitution.

      It is not the domain of subject matter experts.

      Ultimately the law is what the people decide it is.

      56% of americans beleive the election was likely stolen.

      Whether that is true or not, that is about 5 times the numbers necescary to require government to improve trust in elections.

  10. Let the Professors speak. I should note that the NYT and people such as JH fail to show outrage when conservative or Republican speakers are muzzled, either by the mob or by a university administration

  11. Censors exist in both parties.

    We are all fighting for the 1stA; unfortunately some posters like Justice Holmes see this as a chance to zing DeSantis, the Republican party, and Turley.

    It is partisan hacks like JH who prefer to score political points that dissipate our efforts.

    We see the same attitude from other Lefty posters who will abandon principles to play politics.

    The politicians love these partisan hacks.

    1. Monument, it seems as though I agree with you every single time! Keep up the good work and don’t let contrarians like JH bother you. JH will disagree with whatever Turley says as he comes to the site to comment 25 times a day. Someonbe told me yesterday to ignore JH and Anonymous and that is what I am trying to do going forward. Why argue with someone who is just here to argue?

    2. What part of this article is an abandonment of principles? It is a non-partisan statement of academic freedom and a commentary on the departure from norms.

  12. Dear Professor Turley, Sadly, the party of DiSantis, the one you usually support an defend on this thread, is the one demanding this rule and control. Of course whether it’s DiSantis defunding schools who dare to protect kids or professors it’s the same role story. I note that you don’t even mention the Republican Party in your essay but of course you wouldn’t.

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