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IOWA CITY — Though a University of Iowa urology professor’s lawsuit against a UI law professor is continuing, it’s doing so absent a federal First Amendment complaint.
That ruling came this week after the U.S. Court of Appeals upheld a lower court’s ruling that law professor Marc Linder didn’t act as the state when slamming expert testimony from urologist James Brown.
“The bare assertion that Linder identified himself as a UI law professor and acted within the scope of that employment when he criticized Brown is not enough to allege plausibly that Linder’s conduct was state action,” according to the appellate decision filed Wednesday.
Brown is a board-certified urologist with UI Health Care, having practiced for more than two decades. Linder is a UI law professor, specializing in labor law, and has been with the university for 32 years.
Brown over his career has been hired to testify as an expert witness in dozens of court cases, including for Swift Pork Co. when the labor commissioner in 2016 accused it of violating worker safety laws by not letting employees at its Ottumwa processing plant use the restroom when needed.
Brown limited his testimony in that case to medical evidence about normal adult urination and how often people typically need to go, according to his 2021 lawsuit against Linder. He didn’t opine whether Swift broke the law.
But the day before the hearing, Linder made a verbal complaint against Brown with the head of the UIHC Department of Urology and sent a series of emails accusing Brown of having a conflict of interest due to Brown’s “self-confessed, money-driven report, deposition, and hearing testimony.”
During Brown’s testimony, Linder showed up in a T-shirt that read, “People Over Profits.” And he later condemned Brown in The Gazette and other newspapers, accusing him of testifying about a standard that affects 100 million workers, potentially unleashing “terrible consequences for workers in Iowa.”
Brown sued Linder, asserting in the lawsuit that Linder’s “continuous, prolonged, repeated, outrageous, multifaceted and defamatory vendetta” caused him and his family such emotional and psychological distress that they bought a gun and a dog.
Brown’s initial June 2021 lawsuit against Linder accused him of several counts of defamation, invasion of privacy and First Amendment retaliation — which moved it to federal court.
A U.S. District Court judge in January 2022 sided with Linder and dismissed the First Amendment count — finding Brown failed to show Linder acted on behalf of the UI or the state and failed to show Linder’s behavior would “chill a person of ordinary firmness from engaging in protected speech.”
Linder’s conduct was “markedly less severe” than other instances where the 8th Circuit U.S. Court of Appeals found ”conduct insufficient to chill a person of ordinary firmness,” according to federal District Court Judge Stephanie Rose’s ruling.
She declined to get involved in the other alleged counts and sent them back to the state level — where the case remains on track for a 2024 trial.
Brown appealed the federal decision to the U.S. Court of Appeals, arguing Linder acted in his official state capacity by identifying himself as a UI employee in newspaper articles; relying on “the prestige of his official position with (UI) to gain credibility with his audience’” and using state resources “to facilitate his retaliatory conduct.”
The U.S. Court of Appeals disagreed, affirming the dismissal.
“Contrary to Brown’s insistence, our case law is clear that a state employee, merely by publicly identifying himself as such, does not act under color of state law,” the appellate court found.
Whether a state employee’s behavior can be attributed to the state depends on the “degree of control” it has over the employee’s conduct.
“Nothing in Brown’s complaint indicates that Linder’s criticisms involved an exercise of ‘power possessed by virtue of state law’ or were ‘made possible only because (Linder) was clothed with the authority of state law,’ ” according to the ruling. “Without facts like these, Brown fails to allege that Linder’s condemnation was anything other than ‘purely private.’”
That, to Brown’s point, gives Linder the freedom to voice his thoughts.
“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,” according to the Court of Appeals. “Indeed, it is certainly possible that Linder’s occupation brought attention to, or elevated the credibility of, his criticism of Brown.
“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.”
Vanessa Miller covers higher education for The Gazette.
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