From Josephson v. Ganzel, decided yesterday by Sixth Circuit Judge Andre Mathis, joined by Judges Ronald Lee Gilman and Richard Allen Griffin:
The First Amendment protects popular and unpopular speech alike. Allan Josephson worked as a professor of psychiatry at a public university's [University of Louisville's] medical school. After developing an interest in the medical treatment of childhood gender dysphoria, he began publicly discussing his views on that topic.
In October 2017, he expressed his thoughts on treating childhood gender dysphoria during a panel discussion sponsored by a conservative think tank [the Heritage Foundation]. His commentary was unpopular with his coworkers and supervisors. Josephson believes that his superiors retaliated against him for the views he expressed during the panel discussion, ultimately culminating in the nonrenewal of his contract with the university after more than fifteen years of employment….
Josephson sued, and the Court of Appeals allowed the case to go forward:
Josephson argues that Defendants violated his First Amendment rights when they retaliated against him based on his remarks at the Heritage Foundation event….
Public employers can permissibly limit the speech of their employees in certain circumstances. That is so because when a public employee speaks, "such speech pits the employee's interests in speaking freely against the employer's interests in running an efficient workplace." Generally, the First Amendment protects a public employee's speech if: (1) the speech was on a matter of public concern; (2) the speech was not made pursuant to the employee's official duties; and, assuming the employee can satisfy the first two elements, (3) the employee's interest in speaking on a matter of public concern outweighs the employer's interest "in promoting the efficiency of the public services it performs through its employees," Pickering v. Bd. of Educ. (1968).
Josephson spoke on a matter of public concern when he participated in the Heritage Foundation panel. Specifically, he spoke about the treatment of children with gender dysphoria. "[C]ontroversial subjects" like "sexual orientation and gender identity" are "sensitive political topics" that "undoubtedly" involve "matters of profound value and concern to the public."
Josephson did not participate in the Heritage Foundation panel as part of his official duties with the Medical School. The Heritage Foundation invited Josephson to speak off campus and paid for his travel expenses to participate. And the moderator advised the audience that Josephson spoke in his individual capacity and not on behalf of an organization. Although Josephson's Division chief duties included giving academic presentations at other universities and before various professional groups, he always did so to "spread the good news" about the Medical School; his panel remarks were therefore unlike his other invited presentations. His panel remarks did not involve meeting with other university leaders or discussing the Medical School. He was not lecturing about his work at another university, nor did he submit his work to the Heritage Foundation for evaluation before receiving an invitation to speak. Simply put, the evidence suggests that the impetus or motivation behind Josephson's panel remarks was the Heritage Foundation's desire for Josephson to share his own opinions on gender dysphoria and not those of the Medical School.
The Pickering balancing inquiry favors Josephson as well. Start with Josephson's interests. He presented his ideas and opinions on gender dysphoria, an issue of substantial public concern. The Supreme Court has "often recognized that such speech occupies the highest rung of the hierarchy of First Amendment values and merits special protection." Josephson was a professor at the Medical School. His panel remarks on gender dysphoria related to his teaching and scholarship as a child psychiatrist.
What about the Medical School's interest in punishing Josephson for interfering with its efficient performance of public services? To answer this question, we consider several factors, including "whether an employee's comments [1] meaningfully interfere[d] with the performance of [his] duties, [2] undermine[d] a legitimate goal or mission of the employer, [3] create[d] disharmony among co-workers, [4] impair[ed] discipline by superiors, or [5] destroy[ed] the relationship of loyalty and trust required of confidential employees." "[A] stronger showing [of government interests] may be necessary if the employee's speech more substantially involve[s] matters of public concern."
Limited evidence suggests Josephson's panel remarks interfered with the Medical School's operation. As chief, Josephson had to, among other things, manage the Division's clinical activities, recruit faculty, assist in training directors, serve on boards and task forces, and mentor faculty. The evidence shows Josephson's remarks inhibited his ability to mentor and lead his Division colleagues. For example, he led and eventually stormed out of a contentious faculty meeting after some attendees voiced their concerns about Josephson's recent remarks. And there is no doubt that Josephson's remarks caused disharmony between him and his colleagues. But outside of this, the evidence does not suggest that Josephson's panel remarks hampered the Medical School's effective operation.
The other factors tip the balance in Josephson's favor. Outside of his ability to mentor and lead Division faculty, there is nothing to suggest that Josephson's remarks interfered with his remaining chief duties or his duties as a psychiatry professor. No doubt, his colleagues voiced their concerns that Josephson's remarks would affect patient care, faculty recruitment and retention, accreditation, and the Medical School's reputation in general. But Defendants could point to no evidence that their concerns were realized or likely to occur. For example, they could not identify any actual impact Josephson's remarks had on patient care. Nor could they identify any person who left the Medical School or turned down an offer to join the faculty based on Josephson's activities. Defendants also conceded that one professor's remarks rarely affected the Medical School's accreditation, and they did not provide any evidence that the Medical School's accreditation was, in fact, affected by Josephson's activities. So Defendants only had concerns, and "[t]he mere 'fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.'" [Details omitted. -EV] …
Considering this, Defendants have provided insufficient evidence that Josephson's remarks had a significant disruptive effect on the Medical School's operations. And any disruptions that followed Josephson's panel remarks were eliminated once Josephson resigned as chief. Given that Josephson spoke on an academic matter of substantial public concern, the Medical School's burden in justifying his February 2019 discharge is heavy. Accordingly, "the Pickering balance strongly favors" Josephson.
Defendants do not meaningfully challenge that Josephson spoke on a matter of public concern during the Heritage Foundation panel or that the Pickering balance favors him. Instead, they contend that Josephson's participation at the event was "pursuant to" his official duties with the Medical School and was thus unprotected speech. Even if Josephson's participation in the Heritage Foundation panel were part of his official duties, that would not alter our conclusion that he engaged in protected speech at that event.
In Garcetti, the Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Still, Garcetti left open the possibility of an exception to this rule, as the Court declined to address if its analysis "would apply in the same manner to a case involving speech related to scholarship or teaching."
In Meriwether v. Hartop, we answered the question that Garcetti left open. We held that "professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship."
Defendants argue that Josephson's Heritage Foundation presentation was made pursuant to his official duties because he discussed his work at the Medical School and the patients he treated there. Although he was not teaching a class, Josephson's panel remarks were on a topic he taught and wrote about as a child-psychiatry expert. Put differently, Josephson's speech stemmed from his scholarship and thus related to scholarship or teaching. As such, Josephson engaged in protected speech because it related to core academic functions….
A reasonable jury could also find that each Defendant was motivated to act, at least in part, by Josephson's panel remarks….
And the court also concluded that, if Josephson's factual account is correct, Josephson's rights were clearly established; the court therefore denied qualified immunity to defendants.
Travis C. Barham, Tyson C. Langhofer & P. Logan Spena (Alliance Defending Freedom) represent Josephson.
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