UI law professor wins free speech case after criticizing university doctor in media

A University of Iowa professor did not violate another university employee's rights by criticizing him in the press, multiple federal courts have ruled.

Dr. James Brown, a urologist for University of Iowa Hospitals and Clinics, sued Marc Linder, a University of Iowa law professor, in 2021, alleging defamation and unlawful retaliation against protected speech.

The dispute stems from a 2016 case in which Brown testified as a medical expert for Swift Pork Co. in a labor case concerning whether the company was unlawfully restricting employee's bathroom breaks. Although Swift won its case, Brown's lawsuit depicts an escalating campaign of criticism and, he alleged, retaliation by Linder.

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According to court filings, Linder made verbal and written complaints to Brown's department head, accusing him of providing "money-driven" testimony to an employer "trying to invalidate OSHA’s enforcement of employees’ right to use the toilet at work." Linder also stood in the hallway outside a room where Brown was being deposed, and later attended a court hearing where he testified, wearing a "People over Profits" T-shirt. And he was quoted in Cedar Rapids and Waterloo newspapers, and wrote his own article in the UI student newspaper, harshly criticizing Brown.

The doctor sued, alleging that many of the statements Linder made in the media were false and defamatory. He also accused Linder of First Amendment retaliation, under the theory that Linder, who was cited in each article as a UI law professor, was acting on behalf of the state. Brown wrote that Linder's "vendetta" had so unnerved him and his colleagues that he'd acquired a gun for protection.

A federal judge dismissed the retaliation claim and sent the defamation case to state court, where it remains pending. Brown appealed the dismissal to the 8th U.S. Circuit Court of Appeals.

Appeals court says criticism not state action

In its opinion, issued Jan. 4, the 8th Circuit affirmed that Linder was not acting as an agent of the state in criticizing Brown to the press.

"Our case law is clear that a state employee, merely by publicly identifying himself as such, does not act under color of state law," Judge Raymond Gruender wrote. "... Even assuming that a public-university professor acts in his official capacity or within the scope of his employment when he comments on public affairs, it would not necessarily follow that he acts under color of state law."

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Gruender pointed to a prior case involving a state prison chaplain who, although employed by the government, had a constitutional right to worship without government interference, and thus could not be said to speak on behalf of the government when engaged in his religious duties. Linder likewise has the right to speak on issues of public concern, and even identify himself as a state employee, so long as he isn't "exercis(ing) power possessed by virtue of state law," the judge wrote.

"At the end of the day, we do not doubt that the public might regard a law professor’s views on expert testimony as particularly authoritative," Gruender wrote. "... Nonetheless, that Linder happens to work for a public university rather than a private one does not, by itself, mean that his conduct was under color of state law."

UI doctor's defamation claims still pending

The Iowa Attorney General's Office, which represented Linder, declined to comment on the decision. Attorney Scott Wadding, representing Brown, said his client respects the court's decision and is considering his options.

"In Dr. Brown’s case pending in the Iowa District Court for Johnson County, the district court denied the state’s motion to dismiss Dr. Brown’s state law claims," Wadding said in an email. "So, as we evaluate our next steps with respect to the federal appeal, we will continue to litigate Dr. Brown’s claims arising under Iowa law."

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A national civil liberties group, the Foundation for Individual Rights and Expression, filed a brief with the appellate court supporting Linder. After the ruling, FIRE attorney Adam Steinbaugh said the court rightly found that faculty members rarely, if ever, are speaking on behalf of the state.

"So if one faculty member criticizes the other, they're not doing so as a state actor," he told the Des Moines Register. "They can't violate the First Amendment rights of another colleague by criticizing them."

Any other outcome would have had serious implications for academic freedom, Steinbaugh said.

"(Universities hire professors) because they have expertise in a particular field, and they want them to speak from that expertise," he said. "Academic freedom is the recognition that we don't want the state to have control over what they're saying, because we want to know that the ideas and views that they're offering are, what they believe to be the truth. And if the state is able to dictate what the state thinks is the truth, then that just undermines the whole enterprise."

Brown's defamation claims against Linder, including for Linder's statements that Brown had violated an "unambiguous" state ethics law, are scheduled to go to trial in July 2024.

William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com, 715-573-8166 or on Twitter at @DMRMorris.

This article originally appeared on Des Moines Register: University of Iowa professor wins free speech lawsuit in court