Eugene Volokh:

From today’s Eighth Circuit decision in Brown v. Linder, written by Judge Raymond Gruender and joined by Judges James Loken and Steven Grasz:

James Brown and Marc Linder both work for the State of Iowa. Brown is a urologist at the University of Iowa Hospitals and Clinics; Linder is a professor at the University of Iowa College of Law. After Linder criticized Brown’s expert testimony in a case unrelated to this one, Brown sued Linder under 42 U.S.C. § 1983, alleging that Linder retaliated against him for engaging in constitutionally protected speech….

According to the complaint, Brown provided expert testimony for a meat-processing company in litigation about the company’s compliance with labor regulations. As a board-certified urologist, Brown was asked to opine on the health consequences of the company’s bathroom-use policy for its employees. Before, during, and after Brown’s testimony, Linder made it known that he disapproved of Brown’s support for the company’s policy.

First, in the days before Brown’s testimony, Linder “registered a verbal complaint” to Karl Kreder, the head of UI’s urology department, about Brown. Along with the complaint, Linder sent a series of emails to Kreder in which he referred to Brown’s “self-confessed money-driven report, deposition, and hearing testimony.” Then, during Brown’s testimony, Linder appeared in the gallery wearing a t-shirt that said “People Over Profits.” Following the testimony, Linder continued to condemn Brown by making comments in local newspaper articles. In one article, published in both the Waterloo-Cedar Falls Courier and the Cedar Rapids Gazette, Linder stated that Brown’s testimony “could have unleashed … terrible consequences for workers of Iowa.” In another, published in UI’s student newspaper, The Daily Iowan, Linder called Brown a “hired gun” who “had never even published a single scholarly article on urinary incontinence frequency/urgency.” These articles attributed Linder’s comments to “Marc Linder, a UI law professor whose focus is on labor law” and “Marc Linder, UI Professor of Law,” respectively.