We recently discussed a troubling decision from the United States Court of Appeals for the Fourth Circuit in Porter v. Board of Trustees of North Carolina State University. The Fourth Circuit negated the free speech rights of a professor who was fired after raising objections to school policies.  The case is addressed in a forthcoming law review article, Jonathan Turley, The Unfinished Masterpiece: Compulsion and the Evolving Jurisprudence Over Free Speech, 82 Maryland Law Rev. (forthcoming 2023). We now have a positive ruling for free speech out of the District of Maine where Chief Judge Jon Levy has ruled in favor of a professor terminated by the University of Southern Maine for questioning mask and vaccination policies.

Judge Levy’s decision in Griffin v. University of Maine System is balanced and fair. He does not offer a full-throated endorsement of the claim by Professor Patricia Griffin, but rules that she has a right to a trial on the free speech claim.

Here are the basic facts.

On August 18, 2021, the Chancellor of the University of Maine System announced a mandatory mask policy.  On August 24, University President Glenn Cummings held a a luncheon meeting via Zoom. Notably, Cummings was not wearing a mask. After the meeting, Griffin sent an email to the Dean of the College of Management and Human Service that read in part:

“I first want to say how much I love teaching at [the University of Southern Maine] as well as working with such a great faculty. It really has been the highlight of my career and I owe a lot to you for sticking with me. The reason for this email is because I have been following the science, data, and evidence regarding SARS-CoV-2 and searching for anything that will support wearing a mask while indoors as well as vaccinating an entire school population as the optimal method for stopping the transmission of the virus. The reality is that my research has found no evidence to support these measures. I wanted to share the information I gathered and relied upon when making my decision regarding these mandates before the start of classes next Monday to see that my decisions are science, evidence, and data based. However, I do not want to cause any issues, especially for you, if I come to campus on Monday morning to teach my one face to face class so I wanted to give you enough time.”

Griffin attached a letter addressed to the Dean on her own research and objections to the policies. She concluded:

“In conclusion, I have followed the science, data, and evidence and cannot find any overwhelming support for the wearing of masks nor the mandating of vaccines, especially since the overall survival rate is 99.7% if infected with Covid. And finally, from a legal perspective, asking for my vaccination status is a violation of HIPAA.

My expectation is the University of Southern Maine will appreciate a faculty member who embraces critical thinking and applies both inductive and deductive reasoning rather than emotions when making decisions. I am teaching three courses this fall, two online and one face to face. I welcome any evidence you can provide to the contrary of what I have found which will convince me that my conclusions about the efficacy of wearing a mask and vaccinating an entire population are wrong.”

What followed quickly went from bad to worse for Griffin, who met with the Dean and again asked for the data supporting the University’s Policy and vaccination requirement.  While universities attacked academics who questioned these policies as opposed to “the science,” they largely refused to share the basis for the policies.

Despite the firing or sanctioning of academics who questioned pandemic policies, many have recently admitted that the efficacy of masks (particularly the common surgical masks) were radically overstated and unsupported. Moreover, studies have shown that critics were right in claiming that natural immunities from prior bouts with Covid offered as good or better protection than the vaccine. Nevertheless, the media participated in the demonization of these experts who were disciplined at universities and denied key positions in their fields.

In this case, Griffin alleged that immediately following the Zoom meeting, her fall semester courses were removed from the fall class list. She still did not back down and continued to ask for the data. She alleged that school officials then told her that she would not be allowed to teach courses 100% online unless she resigned and accepted a part-time position. On September 8, 2021, Cummings sent a letter to Griffin suspending her and informing her that the University would be moving to terminate her employment. Griffin alleges that the letter falsely asserted that she had refused to comply with the policies and included other false assertions.

The issue for the court was whether Griffin was speaking as a public employee or as a citizen.

“The “threshold inquiry” to determine whether a public employee engaged in protected speech is “whether [the employee] spoke as a citizen on a matter of public concern.” O’Connell v. Marrero-Recio, 724 F.3d 117, 123 (1st Cir. 2013). If the answer is no, the employee has no First Amendment retaliation claim. If the answer is yes, then the possibility of a First Amendment claim arises. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). “In order to survive a motion to dismiss, a plaintiff need not conclusively establish that her speech was made as a citizen; ‘it is sufficient that the complaint alleges facts that plausibly set forth citizen speech.’” Cannell v. Corizon, LLC, No. 1:14-cv-405-NT, 2015 WL 8664209, at *8 (D. Me. Dec. 11, 2015) (quoting Decotiis v. Whittemore, 635 F.3d 22, 34-35 (1st Cir. 2011)).”

The court found that there were factors under the relevant tests that cut both ways on whether Griffin was speaking as an employee or a citizen. However, given the governing standard for review, JudgeLevy read this evidence in her favor and the right to a trial on free speech claims (though he curtailed other aspects of her complaint):

Here, Griffin has pleaded sufficient facts to make it more than merely possible that once fully developed, the facts will support the conclusion that although Griffin’s speech related to her official duties as a public employee, the subject matter of her speech pertained to a matter of great public concern and was outside the scope of her duties as a professor of marketing. Whether the same conclusion may be true after the parties have completed discovery is another matter for another day. “[I]t is entirely possible that additional facts might show” that Griffin is not entitled to the relief that she seeks, but “absent factual development, dismissal is unwarranted” at this stage….

Putting aside the merits for trial, what should be clear is that, if the underlying facts are proven, the university acted in an abusive and capricious manner. Faced with a dissenting faculty member, the school opted to seek her termination rather than defend its policies or allow a dialogue on these measures.

As a public university, the Maine legislature should take note of this case and the need to reinforce free speech protections in the system. The level of intolerance for opposing views alleged in this complaint is chilling. If these facts are proven, there were grounds for termination but it was not the termination of Professor Griffin.