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Saturday, November 06, 2021

Standing problems in UF prof lawsuit

Despite UF backing down, the three professors filed suit Friday, seeking to enjoin as violative of the First Amendment "any policy or practice that provides the Univerity discretion to limit Plaintiffs' ability to undertake outside activities, on a paid or unpaid basis, on the ground that the proposed activity is not aligned with the “interests” of the State of Florida or any of its entities or instrumentalities."

Standing is a problem here. The plaintiffs got the relief they are suing for--permission to testify in the case and be paid for it--so they are not suffering an ongoing injury traceable to university policy or practices (or, in my preferred framing, their rights are not presently being violated). They try to get standing through Susan B. Anthony List, where the Court held a plaintiff can establish standing for a future injury where she intends to engage in arguably constitutionally protected activity that is proscribed by the challenged law and there is a credible threat of future enforcement. Consider ¶ 43 of the complaint:

Unless and until it is rescinded or declared unconstitutional to the extent it equates the University’s “interest” with that of the State, the University’s Policy will continue to impede Plaintiffs from serving as expert witnesses or otherwise lending their analysis or expertise to litigation challenging State policies, in violation of the First Amendment.

As pleaded, that does not work. It is framed as if the existence of the policy without a declaration of its invalidity is a unique ongoing or future injury, which it is not. A declaratory judgment requires standing beyond "this policy is in place and will impede us." They need more, but I am not sure if or how they show a likely future injury. They can allege that they regularly testify as experts, including against the state; they will need to request permission; and they risk being denied in a future case because of the anti-state positions they wish to take and the university's discretion. And courts are forgiving of standing in First Amendment cases.

The problem for the plaintiffs is that this is not the typical First Amendment case. In the typical free-speech case, standing is based on the plaintiff's unilateral intended actions ("I want to handbill;" "I want to make possibly false statements about a political candidate") and the obvious presumption that the government will enforce its laws against violators (arresting the handbiller or charging the false statements). Here, standing depends on actions of others. Five things must happen--the state must future rights-infringing laws; those laws must touch on subjects on which the plaintiffs possess expertise; someone must challenge those laws in court; those plaintiffs must need expert witnesses; and plaintiffs must seek to hire these profs as experts. Each is necessary before the plaintiffs would suffer a future injury traceable to the policy--seeking and being denied permission to testify because they are acting contrary to university interests. Until each happens, these plaintiffs need not request permission for these activities and will not be subject to the policy. The court must overlook how speculative and beyond the plaintiffs' control these facts are. Perhaps the court will decide that past history makes each likely to occur and perhaps it will not that this is a First Amendment case and be more forgiving. But a court is unlikely to abide such speculation in an environmental case.

The complaint is inconsistent in identifying the First Amendment problem with the policies, which might affect the standing analysis (showing, again, how intertwined merits and standing are). It identifies four defects. 1) The problem is making profs request permission before testifying, which it calls a prior restraint. 2) The problem is the discretion the policy vests in the university, a position the Eleventh Circuit rejected last year in a challenge to conflict policies at a different SUS institution. 3) The problem is the university denying permission to engage in positions contrary to Florida's "interests," which creates viewpoint discrimination (because a professor could testify in favor of Florida in the same action). 4) The problem is the university equating its interests with those of the state, which is problematic but not necessarily violative of the First Amendment.* These are distinct First Amendment theories with varying likelihoods of success. The likelihood of future injury varies depending on the theory of the case. For example, if the constitutional problem is making profs ask permission for any outside expert activity or testimony, that injury is more likely (since it is obvious they may testify in the future), although the constitutional merits argument is weaker.

[*] If the university and the state are the same, UF's position that the university is the state may prove too much, affecting the eligibility of federal judges to hear these cases. Many judges on the Eleventh Circuit and the Florida district courts serve as adjunct professors, whether teaching full classes or as part of a group of trial-advocacy instructors. They recuse in cases involving the university. But if the university and Florida are the same, then must they recuse in any case to which Florida is a party? That would have dramatic consequences.

The X-factor is the task force that the UF President convened to recommend a new policy for professors who want to testify in cases in which Florida is a party, which was charged to submit a preliminary recommendation by November 29. That new policy could end this dispute, depending on what it says and which of the distinct alleged constitutional defects it resolves. A court may not want to do anything with this complaint for a month, knowing that the situation will in three weeks and the complaint will go away or be materially changed. Perhaps the court will let the case sit until those further developments, especially since the plaintiffs do not need preliminary relief.

Finally, not to (again) beat a dead horse: But how much simpler would it be for a court to say "your First Amendment rights are not being violated in this situation, so you lose your claim"?

Posted by Howard Wasserman on November 6, 2021 at 11:33 AM in Civil Procedure, Constitutional thoughts, First Amendment | Permalink

Comments

On the other hand, the likelihood that Florida will be sued over its redistricting and that at least one of these serial plaintiff-side voting rights expert witnesses will be specifically selected to testify because of this controversy, as well as their local expertise, seems quite high to me. I'd bet it happens before the district court gets to rule on a standing-based motion to dismiss.

Posted by: Asher | Nov 6, 2021 7:02:11 PM

Howard, thank you for a clear and concise explanation of the standing issues, without hyperbole or histrionics.

Posted by: Paul | Nov 6, 2021 3:10:48 PM

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