Southern Maine Professor Wins Critical Victory in Free Speech Case

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.


114 thoughts on “Southern Maine Professor Wins Critical Victory in Free Speech Case”

    1. Nice Estovir. 🙂 Thks.

      The epidemic this election season seems to be people going blue screen on us, like a bunch of these politicians & Mitch McConnell last week.

      But in life inevitability will catch us all & having Jesus help steer us through the smoke

  1. Jonathan:

    I may very well post this in every single column for a few days. I hope you will oblige. But I fear your readership deserves to know.

    I have been coming on this blog for some time now, and consitently copying and pasting the copyrighted intellectual property of others, pretty much word for word, without giving any credit to the source. I have presented these thoughts as if they were my own, including quotes from third parties who did not speak to me directly. Since I am a paid troll, obviously I am infringing on copyright law, aside from the immorality of it.

    Furthermore, I stole most of these writings from sources that most here would consider, well lets just say unreliable. To use the correct word would violate the terms of service that I love to crow about. I wouldn’t want to disrupt the intellectual discourse that I claim to want to preserve, but never engage in. Instead, I just drop in, call some people racists without basis or explanation, and waltz out like I am not in violation of the civility rules myself.

    The self righteous virtue signaling I do is the only original thought I have posted here in months. EVERYTHING else is someone else’s.

    I offer my sincere apologies for my keyboard diarrhea, lifted from Vox, Salon, Media-ite, Huff Post, and Teen Vogue. But, you can probably count on more of the same in the future. I will just have to change a few more words, so that pain-in-the-a$$ Tom guy can’t find it in 30 seconds.

    PS….I could adopt the posture of Joe Biden, and have my poor press secratary (yes, I have one, who do you thinks finds all this stuuf for me?) or Gigi, come out and lie for me in the face of insurmountable evidence, but it seems Tom has me dead to rights.

    Thanks for your time and now for the important stuff:

    There’s a red under my bed
    And there’s a little ORANGE man in my head
    And he said, “You’re not going crazy, you’re just a bit sad
    ‘Cause there’s a man in ya, gnawing ya, tearing ya into two”

  2. Apparently this comment got vacuumed up during Darren’s cleanup.

    The pooled results of RCTs did not show a clear reduction in respiratory viral infection with the use of medical/surgical masks. There were no clear differences between the use of medical/surgical masks compared with N95/P2 respirators in healthcare workers when used in routine care to reduce respiratory viral infection. Hand hygiene is likely to modestly reduce the burden of respiratory illness, and although this effect was also present when ILI and laboratory‐confirmed influenza were analysed separately, it was not found to be a significant difference for the latter two outcomes. Harms associated with physical interventions were under‐investigated.

  3. The most basic rules to be: (plumbers) solids flow downhill, (electricians) AC/DC are electrical terms not life choices, (carpenters) studs go in walls not a characterization of manhood, (physicists) atoms are particles not the first man, quarks are fermions not cheese, and staying with physics, the Pauli Principle [no pair of identical particles can occupy the same quantum] proves that the democrats are dolts for believing their truths and actual fact can dwell in the same spectrum. These leftist morons have been subjected to an [autokinetic effect], instead of a spot of light they are enamored with the illusion of a grand utopia where wizards of superior intellect and character cast their benevolence.

    Tomorrow, and tomorrow, and tomorrow, Creep in this petty pace from day to day…

    1. …to the last syllable of recorded time. Amazing how memorization works. Been 50 years since I learned that.

  4. MASKerbaters seem to think masks are good because htey keep out some of the virus. That’s like saying screen doors on a submarine are ok because they keep out SOME of the water.

    1. As a former submariner, well said.
      As a former nuclear engineer as well, i can tell you, some defects are not much better a lot of defects.

  5. A few mask facts for the University of Maine to ponder:

    -There is nothing as critical to our health as oxygen metabolism. Especially for a GROWING CHILD or for someone with health issues.Oxygen runs every single metabolic process. We need it for growing, for thinking, for every single process in the body… digestion, respiration et al. Children breathe more air per kilogram of body weight than adults at rest.

    -Masks force wearers to rebreathe their own expelled CO2 plus bacteria, like a noxious gas – bad for the respiratory tract, bad for facial skin, bad for dental health, bad for blood oxygen. Bacterial pneumonia is one risk.

    -All mammals, including humans, experience heightened fear when they are suffocated by as little as 5%. Mice for example, will avoid open spaces in a 95% oxygen environment.

    -Unless changed frequently throughout the day, masks can harbour 80-plus different bacteria and at least 4 different types of fungal colonies . Your washing machine will not be able to sanitise the cloth ones entirely. Only hospital-grade washing machines can do that.

    -MASKS DO NOT WORK. They do not protect you from the particulate matter in smoke let alone the China or any other virus which passes through any pad of cloth or plasticised paper like a gnat through an open door. Only properly fitted hospital- grade biohazard masks can filter a virus.

    -A major Danish study and many other studies from around the world show that masks do not reduce the covid infection rate. There are no studies whatsoever showing that they DO work.

    -Tiny fibres of plasticised paper disintegrating from a sodden mask risk being inhaled to lodge in lung tissue. Health Canada has issued a warning about blue and gray disposable face masks, which contain an asbestos-like substance associated with “early pulmonary toxicity”. The SNN200642 masks, which are made in China are sold and distributed by a Quebec-based company called Métallifer.

    -Masked schoolchildren (and older students) are unable to see, respond to and learn from the facial expressions of masked others, a major blow to the development of social and communication skills like empathy for example which opens the door to anxiety and a host of other negative effects.

    – The mask mandates are designed to asphyxiate us psychologically as well as physically.
    They force us to gas and gaslight ourselves.

    -And they make us all look a bit like goats.

    1. One more thing, and this is just my personal feeling. These so called vaccines are nothing more than a gift from the taxpayers to big pharma.

      1. David Van Pelt,
        We still have some around here wearing masks, in their cars, by themselves.

    2. AR: It’s nice to see a comment from one who knows what she’s talking about.

      Tragically, none of those facts budge the mask tyrants. Their motivation is to wipe out individual identity, and to exert control via baseless fear.

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