Hoover v. Morales

Revised January 29, 1999
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 97-50734
ROBERT HOOVER, Doctor;
TEXAS FACULTY ASSOCIATION,
Plaintiffs-Appellees
VERSUS
DAN MORALES, individually and in his official
capacity as Attorney General of the State of Texas;
BARRY THOMPSON, Doctor in his official capacity as
Chancellor of the Texas A&M University System,
Defendants-Appellants,
Appeal from the United States District Court
For the Western District of Texas
December 31, 1998
Before REAVLEY, DeMOSS and PARKER, Circuit Judges.
PARKER, Circuit Judge:
We sua sponte withdraw our prior opinion, Hoover v. Morales,
146 F.3d 304 (5th Cir. 1998), and substitute the following:
I.
FACTS & PROCEDURAL HISTORY
At issue in this case are two Texas state policies, one
1
legislative and one administrative, which have the effect of
prohibiting state employees from acting as consultants or expert
witnesses on behalf of parties opposing the State in litigation.
The first such policy is Texas A & M University System (“TAMUS”)
policy No. 31.05, which prohibits university professors from taking
employment as consultants or expert witnesses when doing so would
create a conflict with the interests of the State. The second
policy is in the form of an “expert witness rider” attached to the
Texas Legislature’s 1997 appropriations bill. The rider provides:
Because of an inherent conflict of interest, none of the
funds appropriated by this Act shall be expended in
payment of salary, benefits, or expenses of any state
employee who is retained as or serves as an expert
witness or consultant in litigation against the state,
unless the state employee serves in that capacity on
behalf of a state agency on a case in which the state
agency is in litigation against another state agency.
Appropriations Act 1997-99, art. IX, § 2(5); Tex. Sess. Law Serv.
at 6352.
Certain professors, who have been retained or have volunteered
on a pro bono basis to testify in various litigation against the
State,1 and the Texas Faculty Association filed suit under § 1983
1
E.g.: Prof. Robert Hoover, Dr. Finis Welch and Dr. Cecil Reynolds of
Texas A & M have been retained as expert witnesses for the defense in the
2
against the Texas Attorney General and the TAMUS Chancellor,
seeking to enjoin enforcement of the “expert witness rider” and
TAMUS policy No. 31.05, on the grounds that these policies offend
the First Amendment and the Equal Protection clause of the
Fourteenth Amendment. The district court granted the plaintiffs’
requested preliminary injunction and the State appeals. The State
argues that the district court should have abstained from deciding
the merits of the constitutional challenge under the Pullman
doctrine. Alternatively, the State argues that the district court
abused its discretion by granting the preliminary injunction on the
merits.
II.
LAW & ANALYSIS
A.
Standard of Review
A preliminary injunction is an extraordinary
equitable remedy that may be granted only if the
plaintiff establishes four elements: (1) a substantial
likelihood of success on the merits; (2) a substantial
threat that the movant will suffer irreparable injury if
the injunction is denied; (3) that the threatened injury
State of Texas law suit against various tobacco companies; Prof. Frank
Skillern of the Texas Tech University School of Law has volunteered his
services on a pro bono basis to members of a Lubbock, Texas, neighborhood
association opposing state permitting of a nearby incinerator.
3
outweighs any damage that the injunction might cause the
defendant; and (4) that the injunction will not disserve
the public interest. These four elements are mixed
questions of law and fact. Accordingly, we review the
factual findings of the district court only for clear
error, but we review its legal conclusions de novo.
Likewise, although the ultimate decision whether to grant
or deny a preliminary injunction is reviewed only for
abuse of discretion, a decision based on erroneous legal
principles is reviewed de novo.
Sunbeam Products, Inc. v. West Bend Co., 123 F.3d 246, 250 (5th
Cir. 1997), citing Blue Bell Bio-Medical v. Cin-Bad, Inc., 864 F.2d
1253, 1256 (5th Cir. 1989). All the arguments on this appeal
concerning the merits of the preliminary injunction focus on the
first element--likelihood of success on the merits of the
constitutional challenge.
B.
Abstention
Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 61 S.
Ct. 643, 85 L. Ed. 971 (1941), established that federal courts
should not determine the federal constitutional implications of
state law when that law has not yet been authoritatively construed
by the state courts, and the law could be given a construction by
4
the state courts which would avoid the constitutional dilemma. See
Word of Faith World Outreach Center Church, Inc. v. Morales, 986
F.2d 962, 967 (5th Cir. 1993). The State argues that there are two
such open questions under the “expert witness rider” which are in
need of authoritative state court interpretation before a federal
court can address its constitutional implications, i.e., whether
the rider applies to pro bono expert testimony, and whether the
rider applies to expert testimony against political subdivisions of
the State, as opposed to the State directly.2
Abstention is inappropriate in this case, because the
constitutional overbreadth problem posed by the expert witness
rider cannot be avoided by any interpretation which its language
will bear.
C.
Is Speech Still Free If You Get Paid For It?
There is a side-debate in this case about whether testimony by
a state employee acting as a paid expert witness is “commercial
speech” or just “speech”. The difference is critical, as
commercial speech is generally less protected. Central Hudson Gas
& Elec. Corp. v. Public Service Commission, 447 U.S. 557, 563, 100
S. Ct. 2343, 2350, 65 L. Ed. 2d 341 (1980). In this case, we are
2
The State concedes that the district court properly reached the
merits of TAMUS policy No. 31.05 and of the “expert witness rider” to the
extent that the rider prohibits state employees from acting as paid expert
witnesses in litigation against the state directly. Appellant’s Brief, pp.
24-26.
5
dealing with just “speech”. If all it takes to make speech
commercial is that the speaker is paid to say it, then every writer
with a book deal, every radio D.J., and every newspaper and
television reporter is engaged in commercial speech. “It is well
settled that a speaker’s rights are not lost merely because
compensation is received; a speaker is no less a speaker because he
or she is paid to speak.” Riley v. National Federation of the Blind
of North Carolina, Inc., 487 U.S. 781, 801, 108 S. Ct. 2667, 2680,
101 L. Ed. 2d 669 (1988). Likewise, the fact that one is paid to
be an expert witness, does not make his testimony commercial
speech. Central Hudson, 447 U.S. at 561, 100 S. Ct. at 2349
(defining commercial speech as “expression related solely to the
economic interests of the speaker and its audience”)(citing cases).
Therefore, the defining element of commercial speech is not that
the speaker is paid to speak, but rather that the speech concerns
the “economic interests of the speaker and its audience.” See,
e.g., 44 Liquor Mart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.
Ct. 1495, 134 L. Ed. 2d 711 (1996)(product advertisement), Florida
Bar v. Went For It, Inc., 515 U.S. 618, 115 S. Ct. 2371, 132 L. Ed.
2d 541 (1995)(solicitation of legal services).
D.
Pickering & Its Progeny
“The problem in any case is to arrive at a
balance between the interests of the
6
[employee], as a citizen, in commenting upon
matters of public concern and the interest of
the State, as an employer, in promoting the
efficiency of the public services it performs
through its employees.” Pickering v. Board of
Education, 391 U.S. 563, 568, 88 S. Ct. 1731,
1734-35, 20 L. Ed. 2d 811 (1968).
Thirty years ago in Pickering, the Supreme Court distilled a
test for governmental restriction of its employees’ speech. The
test is essentially in two parts. First, the district court must
determine whether the State’s action or policy restricts the speech
of its employees on matters of public concern. Pickering, supra at
568; Connick v. Myers, 461 U.S. 138, 145-149, 103 S. Ct. 1684,
1689-1691, 75 L. Ed. 2d 708 (1983). If so, then the district court
must weigh the interest of the employee in freedom of expression
and his audience’s legitimate need for access to the information
against the government’s interest, “as an employer, in promoting
the efficiency of the public services it performs through its
employees.” Pickering, supra at 568; Connick, supra at 142; Waters
v. Churchill, 511 U.S. 661, 668, 114 S. Ct. 1878, 1884, 128 L. Ed.
2d 686 (1994); United States v. National Treasury Employees Union,
513 U.S. 454, 465-466, 115 S. Ct. 1003, 1012, 130 L. Ed. 2d 964
(1995); Board of County Commissioners v. Umbehr, 518 U.S. 668,---,
7
116 S. Ct. 2342, 2347-48, 135 L. Ed. 2d 843 (1996).
I.
Matters of Public Concern
TAMUS policy No. 31.05 and the expert witness rider both have
the effect of curtailing speech on matters of public concern in
this case. For example, some of the parties in this case have been
retained as expert witnesses in the State of Texas suit against the
tobacco companies. Although the specific testimony to be offered
by the faculty-member plaintiffs may be highly esoteric and of
little interest to the public, that testimony bears on the
addictive nature of cigarettes/nicotine, its health consequences
and resulting public costs, which are matters of public concern.
Ultimately, a ban on testimony by state employees in litigation
against the State, such as TAMUS Policy No. 31.05, or a refusal to
fund the salary and benefits of state employees who testify in
litigation against the State, such as the expert witness rider, can
be expected to curtail speech on a wide variety of matters of
public concern.
ii.
The Competing Interests
The plaintiffs’ right is generally identified as the right to
speak freely on matters of public concern. More specifically, it
is the right to serve as (pro bono) or be retained as (for hire) an
expert witness or consultant in litigation against the State
8
(expert witness rider) or when doing so would create a “conflict of
interest” with the State (TAMUS policy No. 31.05). Balanced
against that, under Pickering, is the State’s interest “as an
employer, in promoting the efficiency of the public services it
performs through its employees.”
The justification offered by the State is the State’s right to
prevent its employees from acting contrary to the State’s
interests. The State argues that an inherent conflict of interest
is created by state employees acting as or being retained as
consultants or expert witnesses for the opposition in litigation
against the State. Since the State has an interest in preventing
such conflicts of interest, the expert witness rider and TAMUS
policy No. 31.05 are designed to prevent state employees from
speaking against the State when doing so would create a conflict
with the interests of the State. Boiled down to its core, the
State is simply arguing that the State’s interest is in preventing
state employees from speaking in a manner contrary to the State’s
interests.
Whatever else we might say about that “justification”, the
State’s amorphous interest in protecting its interests is not the
sort which may outweigh the free speech rights of state employees
under Pickering. The notion that the State may silence the
testimony of state employees simply because that testimony is
contrary to the interests of the State in litigation or otherwise,
9
is antithetical to the protection extended by the First Amendment.
The scope of state interests which may outweigh the free speech
rights of state employees is much narrower than that. Indeed, the
only state interest acknowledged by Pickering and its progeny,
which may outweigh the right of state employees to speak on matters
of public concern, is the State’s interest, “as an employer, in
promoting the efficiency of the public services it performs through
its employees.”
In this case, the State has not identified how the State’s
interest in promoting efficiency of the public services it performs
through its employees will be adversely affected by allowing state
employees to serve as or be retained as expert witnesses or
consultants. We may safely assume that there will be occasions
when the State’s interest in efficient delivery of public services
will be hindered by a state employee acting as an expert witness or
consultant, and therefore, the expert witness rider or TAMUS policy
No. 31.05 would legitimately curtail that employee’s speech.
However, the problem with the rider and policy No. 31.05 is the
quantity and quality of speech they will curtail, which would not
adversely affect the interest of the State in efficient delivery of
public services. That is, by their operation, the expert witness
rider and TAMUS policy No. 31.05 would likely serve to silence
those whose speech would not adversely affect the efficiency of the
public services performed by the State through its employees.
10
Specifically, this Court does not see how the expert testimony of
the faculty-member plaintiffs in this case will adversely affect
the efficient delivery of educational services by the institutions
in which these faculty members serve. Even if such an adverse
impact might occur, the State has not identified it. The State
bears the burden of justifying these restrictions, and when it
enacts a “wholesale deterrent to a broad category of expression by
a massive number of potential speakers”, the burden of
justification is indeed heavy. National Treasury Employees Union,
513 U.S. at 466-67, 115 S. Ct. at 1013. In this case, the State’s
burden proved too heavy, and having identified the flaws in the
expert witness rider and TAMUS policy No. 31.05, the district court
properly enjoined their enforcement.
E.
Content-Based Restriction
An additional basis for enjoining enforcement of the expert
witness rider and TAMUS policy No. 31.05 is that they draw a
distinction between state employee speakers based on the content of
the employees’ relative speech. The one who testifies as an expert
witness or acts as a consultant on behalf of the State is
protected. The one who testifies as an expert witness or acts as
a consultant on behalf of those who oppose the state in litigation
11
is punished.3
“A statute is presumptively inconsistent with the First
Amendment if it imposes a financial burden on speakers because of
the content of their speech.” Simon & Schuster, Inc. v. New York
State Crime Victims Board, 502 U.S. 105, 115, 112 S. Ct. 501, 508,
116 L. Ed. 2d 476 (1991), citing Leathers v. Medlock, 499 U.S. 439,
447, 111 S. Ct. 1438, 1443-44, 113 L. Ed. 2d 494 (1991). See also
R.A.V. v. City of St. Paul, 505 U.S. 377, 383, 112 S. Ct. 2538,
2542, 120 L. Ed. 2d 305 (1992)(holding that government restriction
of otherwise unprotected speech (“fighting words”) on the basis of
ideas expressed thereby, is unconstitutional content-based
regulation). “Regulations which permit the Government to
discriminate on the basis of the content of the message cannot be
tolerated under the First Amendment.” Id., quoting Regan v. Time,
Inc., 468 U.S. 641, 648-49, 104 S. Ct. 3262, 3266-67, 82 L. Ed. 2d
487 (1984). Therefore, the district court’s decision to enjoin
enforcement of the expert witness rider and TAMUS policy No. 31.05
may be justified on this alternative basis as well.
IV.
CONCLUSION
The district court properly refused to abstain from addressing
3
It is this discriminatory treatment of state employees based on the
content of their speech which prompted the plaintiffs’ Equal Protection
challenge. Our resolution of the plaintiff’s First Amendment claim makes
it unnecessary to discuss the merits of plaintiffs’ Equal Protection
challenge.
12
the constitutionality of the expert witness rider, because no
matter how it is construed by the Texas courts, the constitutional
problem cannot be avoided. The district court properly granted the
preliminary injunction against enforcement of TAMUS policy No.
31.05 and the expert witness rider, because they both will cause
the censorship of more speech by state employees than may be
justified in order to protect the efficient delivery of public
services. Furthermore, the expert witness rider and TAMUS policy
No. 31.05 are presumptively impermissible content-based regulations
of otherwise protected speech. Therefore, we affirm the district
court’s decision to enjoin the enforcement of these policies.
As we previously have stated, there may be occasions when the
State’s interest in efficient delivery of public services will be
hindered by a state employee acting as an expert witness or
consultant. Certainly the State’s interests heighten when the
employee happens to be a policy maker. We can hypothesize examples
of legislative or administration rules limiting expert testimony
which would not violate the First Amendment, including rules
regulating outside employment that do not turn on the content of
any speech related activity that may be part of the outside
employment. Moreover, the opinion should not be taken to decide or
draw into question other kinds of rules regulating arguably
expressive conduct by public sector employees. See, e.g., Weaver
v. United States Info. Agency, 87 F.3d 1429 (D.C. Cir. 1996);
13
Vicksburg Firefighters Assoc., Local 1686 v. City of Vicksburg, 761
F.2d 1036, 1040 (5th Cir. 1985); Zook v. Brown, 865 F.2d 887 (7th
Cir. 1989); Arceneauz v. Treen, 671 F.2d 128 (5th Cir. 1982). But
our task in this case requires us to apply a Pickering case-by-case
analysis, and in doing so we conclude that the expert witness rider
and TAMUS policy No. 3105 are impermissibly overbroad. Our opinion
does not foreclose consideration of rules and regulations aimed at
limiting expert testimony of faculty members or other state
employees which adhere to our First Amendment jurisprudence.
AFFIRMED.
ENDRECORD
14
DeMOSS, Circuit Judge, specially concurring:
I concur only in the result.
The only issue before this Court is whether the district court
abused its discretion by granting a temporary injunction enjoining
the enforcement of Texas A & M University System Policy 31.05 and
Regulation 31.0501 (the "TAMUS Policy") and the "Expert Witness
Rider" attached to the Appropriations Act 1997-99, art. IX, § 2(5)
(the "Rider"). The Order of the district court granting that
injunction does not address and does not constitute any final
determination concerning:
a. whether the district court would apply the
abstention doctrine of Railroad Comm’n of Texas v. Pullman
Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941) and
Word of Faith World Outreach Center Church, Inc. v. Morales,
986 F.2d 962 (5th Cir. 1993);
b. whether the "speech" in this case is "commercial
speech";
c. whether the speech in this case relates to "matters
of public concern";
d. whether a balancing of interest between the rights
of the employee and the rights of the state as employer under
Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731,
20 L. Ed. 2d 811 (1968) would require a result in favor of
plaintiff/appellees;
e. whether the TAMUS policy or the Rider constitute an
unconstitutional content based restriction on the free speech
rights of the plaintiffs/appellees under United States v.
National Treasury Employees Union, 513 U.S. 454, 115 S. Ct.
1003 (1995).
Likewise, the district court did not file any findings of fact and
conclusions of law on these issues for us to review.
In my view this case raises a serious and fundamental issue
not previously decided by the United States Supreme Court or this
Court. That is, whether the State of Texas or one of its state
universities can prohibit a state employee or a full-time professor
at the university from serving as a compensated expert witness
against the state when the subject matter of his testimony and the
basis of his qualifications as an expert are directly connected
with, and are the product of, his employment by the state. That
issue was expressly left undecided by the Supreme Court in National
Treasury Employees and needs far more factual development and legal
analysis by the parties and the Court than it has received on the
hearing for preliminary injunction.
g:\opin\97-50734.con 16
Our task on this appeal is much narrower than the decision
penned by the majority. We are simply to decide whether, based
upon the limited evidence presented at this early stage of the
litigation, we believe that the district court’s decision is so
wanting for support that it constitutes an abuse of discretion. I
can imagine several reasons why the district court might have found
it appropriate to grant an injunction. For example, the expert
testimony relationships which are the subject of this case appear
to have been entered into prior to the effective date of the Rider;
and raise an issue concerning whether the Rider should be
retroactively applied against the plaintiffs during the pendency of
this suit. Where I differ from the majority is that I would have
neither assumed to know the reasoning of the district court nor
presumed to include that reasoning in an opinion disposing of the
more narrow preliminary injunction question.
Consequently, I concur with the majority that the district
court did not abuse its discretion, but I decline to join in the
discussion and commentary by the majority relating to matters
which, in my view, are not raised by this appeal.
g:\opin\97-50734.con 17