Appeals court delivers major victory for free speech in America with liability finding

A federal appeals court has released an opinion that gives free-speech advocates across America a major victory, according to a report from constitutional scholar Jonathan Turley.

He’s testified before Congress on fine points of the Constitution, and even has represented members in court. His expertise on the topic is well recognized.

His description of the ruling against the University of Louisville being a “major victory for free speech” came following a decision from the 6th U.S. Circuit Court of Appeals for Allan Josephson, who “was subject to adverse actions after he publicly expressed skepticism over some treatments for youth diagnosed with gender dysphoria.”

The ruling, Turley pointed out, “deals with qualified immunity and reaffirms liability for denial of free speech protections.”

The opinion essentially found that the school was not allowed to claim immunity for having denied Josephson free speech protections.

“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,” the report said.

His “good standing,” however, suddenly vanished when he expressed his opinion on transgenderism 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,” the report said.

Those are commonly accepted facts supported by studies and surveys.

But the school decided not to renew his contract because his beliefs differed from the politically correct line of thought.

And officials claimed qualified immunity when they were sued.

“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,” the report said.

The appeals court ruling went another direction.

“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.”

The ruling continued, “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.”

“During the relevant period, it was beyond debate that ‘the First Amendment bar[red] retaliation for protected speech.'”

And the ruling said the school’s second claim wasn’t any 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.’ … The principle ‘must be settled law,'” the opinion said.

“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,'” the ruling said.

Turley said the decision is particularly important because he thinks “public universities will be key to any effort to restore free speech values to higher education.”

The decision returns the fight to the lower court.