What Did You Say?

Sixth Circuit Hands Down Major Free Speech Win for Professor Against the University of Louisville

By: Jonathan Turley | September 13, 2024

Read more at https://jonathanturley.org/2024/09/13/sixth-circuit-hands-down-major-free-speech-win-for-professor-against-the-university-of-louisville/

The United States Court of Appeals for the Sixth Circuit handed down a major victory for free speech this week in favor of a professor challenging his treatment by the University of Louisville. In Josephson v. Ganzel, a unanimous panel ruled for Dr. Allan Josephson who was subject to adverse actions after he publicly expressed skepticism over some treatments for youth diagnosed with gender dysphoria. The decision is important because it deals with qualified immunity and reaffirms liability for the denial of free speech protections.

Writing for the panel (including Senior Judge Ronald Lee Gilman and Judge Allen Griffin), Judge Andre Mathis found that university officials could not claim immunity in the denial of free speech protections for faculty.

We previously discussed this case. Josephson was a professor of psychiatry at the medical school and had success at the school after serving as the Division Chief of the Division of Child and Adolescent Psychiatry and Psychology at the University of Louisville for nearly 15 years. He has 35 years of experience in the field. His apparent good standing at the school changed dramatically when he participated in a discussion of the treatment of childhood gender dysphoria at an event in October 2017 sponsored by a conservative think tank, the Heritage Foundation.  He expressed his reservations with some treatments and his public comments were reported back to his colleagues.

Dr. Josephson argued that children are not mature enough to make such major, permanent decisions and that 80-95 percent of children claiming gender dysphoria eventually accept their biological sex over time without such treatment. Those views are widely shared by others and have been cited as the basis for states adopting bans on conversion treatments for young children.

His commentary triggered a backlash at the school, which led to a decision not to renew his contract. When sued, the school invoked the Eleventh Amendment and claimed qualified immunity. The district court correctly rejected that claim, and the Sixth Circuit just affirmed that denial.

The university was seeking protection that would have insulated anti-free speech practices from liability, a dangerous prospect that could have dramatically accelerated the growing intolerance on campuses. The University of Louisville was arguing that they could punish faculty for public statements without fear of liability as state officers.

Judge Mathis and his colleagues made fast work of this insidious and dangerous claim:

Defendants argue that they are entitled to qualified immunity for two main reasons. First, they argue it was not clearly established that each Defendant’s conduct, in isolation, was an adverse action sufficient to show retaliation against a professor because of his protected speech. Second, they argue it was not clearly established that the First Amendment protected statements like those Josephson made in October 2017.

Resolving Defendants’ first argument is not complicated. Defendants argue that Josephson’s rights were not clearly established because no court had specifically addressed whether isolated actions against a professor because of his speech were adverse actions. In other words, Defendants believe they can act as they choose until there is a case on all fours. We disagree. As we have explained, “we do not require an earlier decision that is ‘directly on point.’” McElhaney v. Williams, 81 F.4th 550, 556–57 (6th Cir. 2023) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)). At the same time, “‘existing precedent’ must place the contours of the right ‘beyond debate.’” Id. (quoting Mullenix, 577 U.S. at 12).

During the relevant period, it was beyond debate that “the First Amendment bar[red] retaliation for protected speech.” Crawford-El v. Britton, 523 U.S. 574, 592 (1998). By the fall of 2017, both the Supreme Court and this court had held that, absent a disruption of government operations, a public university may not retaliate against a professor for speaking on issues of social or political concern. Pickering, 391 U.S. at 574; Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 682 (6th Cir. 2001). And we had established that a retaliatory “adverse action” is one that “would deter a person of ordinary firmness from continuing to engage in that conduct.” Thaddeus-X, 175 F.3d at 394. We had further established that campaigns of harassment, when considered as a whole, may amount to adverse actions. See Fritz, 592 F.3d at 724; Thaddeus-X, 175 F.3d at 398; Bloch, 156 F.3d at 678. It was also established that legitimate threats “to the nature and existence of one’s ongoing employment is of a similar character to the other recognized forms of adverse action—termination, refusal to hire, etc.—even if perpetrated by a third party who is not the employer.” Fritz, 592 F.3d at 728. We have, moreover, “repeatedly held that ‘[a]n act taken in retaliation for the exercise of a constitutionally protected right is actionable under § 1983 even if the act, when taken for a different reason, would have been proper.’” Wenk v. O’Reilly, 783 F.3d 585, 595 (6th Cir. 2015) (alteration in original) (emphasis omitted) (quoting Bloch, 156 F.3d at 681–82). Thus, a reasonable university official during the relevant period would have understood that he could not lawfully terminate or threaten the economic livelihood of a professor because of his protected speech.

Defendants’ second argument does not fare much better. That is because the protected nature of Josephson’s speech was also clearly established. “To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent.” District of Columbia v. Wesby, 583 U.S. 48, 63 (2018). The principle “must be settled law.” Id. (internal quotation marks omitted). Settled law “means it is dictated by controlling authority or a robust consensus of cases of persuasive authority.” Id. (internal quotation marks omitted).

In the First Amendment retaliation context, “we ask whether any reasonable official would have understood that [Josephson’s] speech was protected, and thus that the official could not retaliate against him.” McElhaney, 81 F.4th at 557. The answer: It is, and has been, clearly established that public employees have a right to speak “on a matter of public concern regarding issues outside of one’s day-to-day job responsibilities, absent a showing that Pickering balancing favors the government’s particular interest in promoting efficiency or public safety.” Ashford, 89 F.4th at 975 (first citing Buddenberg v. Weisdack, 939 F.3d 732, 739–40 (6th Cir. 2019); then citing Westmoreland v. Sutherland, 662 F.3d 714, 718–19 (6th Cir. 2011)).

It can no doubt be difficult to determine if speech is public or private. See DeCrane, 12 F.4th at 599 (“[W]e have recognized that it can be ‘challenging’ to distinguish public from private speech.” (citation omitted)). Even so, by 2012, “[w]e had held that employees speak as private citizens (not public employees) at least when they speak on their own initiative to those outside their chains of command and when their speech was not part of their official or de facto duties.” Id. at 599–600 (citing Handy-Clay v. City of Memphis, 695 F.3d 531, 542–43 (6th Cir. 2012)). “Would this ‘firmly established’ rule have ‘immediately’ alerted a reasonable person No. 23-5293 Josephson v. Ganzel, et al. Page 22 that” Josephson spoke in his private capacity? See id. at 600 (quoting Wesby, 583 U.S. at 64). We think so.

Defendants also argue that Josephson’s Heritage Foundation panel remarks were a part of his official duties. Even if that were the case, it was clearly established that such speech is protected. See Meriwether, 992 F.3d at 505; Hardy, 260 F.3d at 680; Bonnell v. Lorenzo, 241 F.3d 800, 823 (6th Cir. 2001) (“[A] professor’s rights to academic freedom and freedom of expression are paramount in the academic setting.”).

After a recent blow to academic freedom and free speech by the United States Court of Appeals for the Fourth Circuit, this is a heartening opinion. It is particularly important because, as I have previously written in columns and my new book, public universities will be key to any effort to restore free speech values to higher education.

Higher education has already plunged in trust among citizens under the current administrators and faculty at our colleges and universities. They are destroying the very institutions that sustain them. Public universities can be a strong line of defense for free speech, offering students not just free speech environments but the direct protection of the First Amendment. Not surprisingly, the annual survey of free speech on campuses tends to have public universities at the top of the list of the most protective institutions with a few private standouts.

As shown by the University of Louisville’s medical faculty, administrators and faculty are not necessarily any more inclined to protect diversity of thought at public universities. However, the applicability of the First Amendment subjects them to greater accountability in the courts. In this case, the University of Louisville was seeking to reduce that accountability.

I have written about how taxpayers and legislators can exercise their own power to demand more diversified and tolerant environments at these schools. In the meantime, faculty and students can turn to state schools for greater protections for speech and more diverse environments. This case will help in that effort.

Here is the opinion: Josephson v. Ganzel

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster).