BY HANK REICHMAN
The state of Florida has gotten something of a reputation for zaniness. The “Florida Man” meme has been the source of both laughter and horror, as tales of outlandish behavior in the news repeatedly go viral. To read some of the most outrageous (and entertaining), go here.
But these days “Florida Man” has become political as, led by the state’s cynically reactionary governor, Ron DeSantis, authorities in the state have gone whole hog in their holy war against the supposed evils of disease prevention, educating about racism, and, well, voting. Indeed, the governor’s blatant mismanagement of the state’s COVID crisis has even earned him the nickname “Governor DeathSantis.”
And, guess what, the administration of the University of Florida, exemplifying the craven cowardice now so sadly gaining ground in academia, has gone right along with the program.
The latest outrage was reported today by New York Times reporter Michael Wines:
Three University of Florida professors have been barred from assisting plaintiffs in a lawsuit to overturn the state’s new law restricting voting rights, lawyers said in a federal court filing on Friday. The ban is an extraordinary limit on speech that raises questions of academic freedom and First Amendment rights.
University officials told the three that because the school was a state institution, participating in a lawsuit against the state “is adverse to U.F.’s interests” and could not be permitted. . . .
The university’s refusal to allow the professors to testify was a marked turnabout for the University of Florida. Like schools nationwide, the university has routinely allowed academic experts to offer expert testimony in lawsuits, even when they oppose the interests of the political party in power.
Leading experts on academic freedom said they knew of no similar restrictions on professors’ speech and testimony and said the action was probably unconstitutional.
I’m one of those “leading experts” quoted in the piece. Wines contacted me some days ago to inquire about the case, but fearing that word would get out and he might lose his scoop (or so it seemed) he kept all details from me, offering for comment only the abstract question: should/could a public university prevent a faculty member from providing expert testimony in a case against the state. He didn’t tell me the state, the topic of the legal case, or any names. I might have guessed Florida, but it could have been several other states, say, Texas or North Carolina. Anyway, what I told him still stands:
An author of two books on academic freedom, Henry Reichman, called the state’s new restrictions “crazy.”
“The whole purpose of a university and academic freedom is to allow scholars free rein to conduct research,” said Mr. Reichman, a professor emeritus of history at California State University, East Bay. “The ultimate logic of this is that you can be an expert in the United States, except in the state where you’re actually working and being paid by the state.”
I could, of course, have said — and surely did say — more. But the principle that faculty research is conducted not for private or institutional benefit but for the public good and that the results of such research cannot be kept from the public, including in the courtroom, is so fundamental that it almost needs no further explication. The principle can be said to have been established as early as 1918, when the chancellor of the University of Montana and the state’s governor sought to bar an economics professor from publishing work about the state’s tax policies that were overly beneficial to mining interests. That attempt failed.
As Yale Law professor and former AAUP general counsel and committee A member Robert Post told the Times,
The university does not exist to protect the governor. It exists to serve the public. It is an independent institution to serve the public good, and nothing could be more to the public good than a professor telling the truth to the public under oath.”
Here, by the way, is how the University of Florida responded today to the Times report:
Recent news reports have indicated the University of Florida denied requests of some faculty members to participate in a lawsuit over the state of Florida’s new election laws.
The University of Florida has a long track record of supporting free speech and our faculty’s academic freedom, and we will continue to do so. 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.
It’s hard to imagine a more transparently phony excuse. Apparently, that “long track record” of supporting free speech and academic freedom doesn’t include supporting speech that Is “adverse to the university’s interests.” And, yeah, sure, the problem here was just that the testimony would be remunerated. Had the professors offered to testify for free (perhaps they have!) would there have been no problem? What does it matter whether the work is paid or unpaid? And, of course, who decides and on what basis what the “university’s interests” might be? Ron DeathSantis, the quintessential “Florida Man”?
Contributing editor Hank Reichman is professor emeritus of history at California State University, East Bay; former AAUP vice-president and president of the AAUP Foundation; and from 2012-2021 Chair of AAUP’s Committee A on Academic Freedom and Tenure. His book, The Future of Academic Freedom, based in part on posts to this blog, was published in 2019. His Understanding Academic Freedom has recently been published.
What if they said the same things in a book, receiving royalties, or in a NYTimes oped, for which they were paid?
I guess their position is that free speech is free only if you give it away.
The article in the Washington Post quoted “university officials”:
“As UF is a state actor, litigation against the state is adverse to UF’s interests,” school officials said, according to documents reviewed by The Washington Post.
No mention of the rather different issue of payment for testifying.
The statement about pay was issued today in response to press reports. Clearly a pathetic and stupid effort to claim they weren’t stifling speech, which of course they knew they were.
Well faculty members don’t need university permission to speak or write/publish. But I suspect that at some universities they do need permission to engage in outside paid employment as that could interfere with their doing their jobs. I seem to remember a case where someone was discovered to be holding two full time jobs at two different universities and neither had a formal policy prohibiting that. So this rule could be a reaction to that case. The UF has no other hook for censoring the faculty members so they are twisting a legitimate measure into an instrument of censorship.
And they have regularly approved requests to do such work by numerous faculty members, including the three whose requests they now denied on these spurious grounds.
On this question of payment, raised spuriously by the university and in the above comments, the US Supreme Court in 1988 weighed in in the case of Riley v. National Federation of the Blind of North Carolina, Inc.: ““It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.” Applying that standard, the 5th Circuit in 1998 opined in Hoover v. Morales: “If all it takes to make speech commercial is that the speaker is paid to say it, then every writer with a book deal, every radio D.J., and every newspaper and television reporter is engaged in commercial speech. . . . Likewise, the fact that one is paid to be an expert witness, does not make his testimony commercial speech.”
I concur wholeheartedly with Hank Reichman’s discussion of this extremely troubling case.
To make matters even worse (though that’s hard to imagine), take a look at the disgraceful reply that a university spokesperson made to a columnist for the Washington Post who questioned the denial to the three professors of their right to testify in the case:
“To your question, the university views the professors’ request as a request to be paid to testify against the state, and the university, as a public institution, is part of the state — therefore, that would be adverse to the university’s interests. However, to be clear, if the professors wish to do so pro bono on their own time without using university resources, they would be free to do so.” See https://www.washingtonpost.com/opinions/2021/11/01/university-of-florida-desantis-voting-law/
B. Robert Kreiser