James Brown, a urologist at the University of Iowa Hospital recently failed in his attempt to hold Marc Linder, a University of Iowa law professor, accountable for statements Linder made criticizing Brown’s service as an expert witness.  The United States Court of Appeals for the Eighth Circuit upheld the trial court’s dismissal of the claim. Brown provided expert testimony for a meat processing company in litigation about the company’s compliance with labor regulations. As a board-certified urologist, Brown was asked to opine on the health consequences of the company’s bathroom-use policy for its employees. Before, during, and after Brown’s testimony, Linder made it known that he disapproved of Brown’s support for the company’s policy.In the days before Brown’s testimony, Linder “registered a verbal complaint” to Karl Kreder, the head of UI’s urology department, about Brown.  Then, during Brown’s testimony, Linder appeared in the gallery wearing a t-shirt that said “People Over Profits.” Following the testimony, Linder continued to condemn Brown by making comments in local newspaper articles. In one article, published in both the Waterloo-Cedar Falls Courier and the Cedar Rapids Gazette, Linder stated that Brown’s testimony “could have unleashed . . . terrible consequences for workers of Iowa.” In another, published in UI’s student newspaper, The Daily Iowan, Linder called Brown a “hired gun” who “had never even published a single scholarly article on urinary incontinence frequency/urgency.” These articles attributed Linder’s comments to “Marc Linder, a UI law professor whose focus is on labor law” and “Marc Linder, UI Professor of Law,” respectively.Brown filed a suit against Linder under a federal statute that prohibits a state government from retaliating against a person for exercising their constitutional rights.  Brown contended that Linder was acting under “color of state law” in his actions, thereby triggering the federal statute.   Linder filed a motion to dismiss.In granting the motion to dismiss, the trial court concluded that Brown failed to adequately plead that Linder’s actions were under color of state law.  The appellate court agreed.The appellate court noted that “to act under color of state law, a state employee must ‘exercise power possessed by virtue of state law and made possible only because [he] is clothed with the authority of state law.’”  Brown argued that Linder made his comments in the scope of his state employment when he made his comments.The appellate court, however, ruled that “[e]ven assuming that a public-university professor acts in his official capacity or within the scope of his employment when he comments in public it would not necessarily follow that he acts under color of state law . . . . The bare assertion that Linder identified himself as a UI law professor and acted within the scope of that employment when he criticized Brown is not enough to allege plausibly that Linder’s conduct was state action.”Linder was able to utter his criticisms whether he was employed by the University or not.  For this reason, he didn’t exercise power “made possible only because [he] is clothed with the authority of state law.”  Because Linder couldn’t prove otherwise, his complaint was doomed to fail.

Jack Greiner is a partner at the Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues

This article originally appeared on Cincinnati Enquirer: Strictly Legal: Iowa professor not acting under color of state law