BY HANK REICHMAN

Given the case’s high importance, a U.S. District Court judge says he hopes to issue an order by January 24 on a suit filed by a group of University of Florida professors to invalidate the school’s conflict of interest policy as an unconstitutional infringement on freedom of speech.  “This is on the front burner and I will do my best to get an order out in the next ten days or so,” Judge Mark Walker said at the end of a 90-minute teleconference on Friday.  “I will try to do my best in light of my other commitments.  I will not sit on this case,” the Tallahassee Democrat reported.

Three political science professors — Sharon Austin, Daniel Smith and Michael McDonald — filed suit after they were denied permission to provide expert testimony in a case challenging a new state elections law that places restrictions on voting by mail, among other things.  Administrators said their testimony would be adverse to the university’s interests because they went against the executive branch of state government.  But the university allowed faculty to lend their expertise to court cases without restriction until 2020, the professors responded.  Two law professors and a medical school professor later joined the suit after they were hit with similar denials.

Judge Walker’s comments came after he blasted an attorney for the university, asking whether “you are just incompetent” or “really didn’t have a defense” (it could be both, of course) after the attorney moved to reopen discovery — the fact-finding phase that happens before a trial — so the university could introduce new evidence. Christopher Bartolomucci, a Washington, D.C. lawyer for the university administration, said he and his team had discovered just two days earlier that the professors had prepared their testimony before requesting permission to testify.  “We now know they were actively working before they submitted their request,” Bartolomucci said in the online proceeding.  “These facts are found nowhere in complaints.  They have misled counsel, the employer and this court. … They have unclean hands, and shouldn’t enjoy relief.”

Judge Walker wasn’t buying it, however.  He pointed out that he had offered an opportunity for discovery and the lawyers waived it.  Moreover, he added, “It strains credulity when you say these are newly discovered facts when they are all part of the public record.  These are the very reports and experts we knew about, but we just learned in the last two days the Earth is not round and there’s gambling in Casablanca and these professors had their reports before they submitted requests for approval.”

Of course, the fact that the professors were preparing their testimony before they formally sought permission to deliver it actually illustrates quite well the core issue at the heart of their suit — why should they require advance permission in the first place to share with the public their expertise and training and their research activities, which necessarily predate any potential request.

Bartolomucci demonstrated why the Florida policy should be struck down as an unconstitutional prior restraint, lawyer for the professors David O’Neil pointed out.  “He did an excellent job illustrating the chill,” O’Neil said.  “Instead of walking away from the denials, the defendants are doubling down on them and making clear that these plaintiffs may be punished for what they believe is an unconstitutional prior restraint.”

Judge Walker may well agree.  UF’s lawyers have argued that the request for an injunction is moot since the policy has been modified to establish a “presumption” that requests to participate in trials as expert witnesses or submit friends of the courts brief would be granted.  During a board meeting subsequent to the alleged policy modification, however, UF Board of Trustees Chairman Mori Hosseini said faculty members had “taken advantage of their positions” by using their university jobs “to improperly advocate personal political viewpoints to the exclusion of others.”  Judge Walker said such comments  “leave this court with little doubt that the University of Florida intends to enforce its conflict-of-interest policy in the manner plaintiffs fear.”  He criticized Hosseini for saying the university has to take into consideration the reaction to the proposed speech among “the legislature, the taxpayers of Florida, the people that are funding us.”

O’Neil, the professors’ attorney, argued that an injunction is needed because the university retains broad discretion to deny requests deemed to conflict with university interests.  The changes to policy merely codify what the university administration has already been doing, he said.  “UF has faculty who are leading experts who want to speak on issues existential to our nation’s fundamental issues.  The First Amendment gives them that right, and defendants want to interfere with that,” O’Neil said.

The university wants to silence those viewpoints “because they fear that the opinions will anger the State’s political leaders,” he added.  “What is perhaps most alarming, is that the University believes it is perfectly entitled to suppress faculty speech in this way.”

Judge Walker agreed that it appears the university is only going to allow such activities under limited circumstances “unless it’s a hot potato.”