In Josephson v. Ganzel, a unanimous panel of the U.S. Court of Appeals for the Sixth Circuit affirmed a district court's denial of sovereign immunity and qualified immunity to public university officials who allegedly took adverse employment actions against a professor who expressed skepticism about certain treatments for youth diagnosed with gender dysphoria.
Judge Mathis wrote for the panel, joined by Senior Judge Gilman and Judge Griffith. His opinion begins:
The First Amendment protects popular and unpopular speech alike. Allan Josephson worked as a professor of psychiatry at a public university's medical school. After developing an interest in the medical treatment of childhood gender dysphoria, he began publicly discussing his views on that topic. In October 2017, he expressed his thoughts on treating childhood gender dysphoria during a panel discussion sponsored by a conservative think tank. His commentary was unpopular with his coworkers and supervisors. Josephson believes that his superiors retaliated against him for the views he expressed during the panel discussion, ultimately culminating in the nonrenewal of his contract with the university after more than fifteen years of employment. So he sued the individuals that he says violated the First Amendment by retaliating against him.
The defendants argue that they are entitled to Eleventh Amendment immunity and qualified immunity. The district court disagreed, and so do we. For the reasons explained below, we affirm.
Dr. Josephson was a psychiatrist and a member of the faculty at the University of Louisville School of Medicine in the Department of Pediatrics. He participated in a panel sponsored by the Heritage Foundation on gender dysphoria in children. During this panel, he expressed his opinion that "gender dysphoria is a socio-cultural, psychological phenomenon that cannot be fully addressed with drugs and surgery. Thus, doctors and others should explore what causes this confusion and help the child learn how to meet this developmental challenge."
After word of his participation spread within the medical school, he was demoted and, later, his contract with the school was not renewed. Dr. Josephson then sued alleging a violation of his First Amendment rights.
The panel explains that the defendants' alleged contact clearly violated Dr. Josephson's First Amendment rights. Among other things, his remarks were on a matter of public concern in his personal capacity and did not disrupt or interfere with his ability to perform his duties.
On the matter of qualified immunity, Judge Mathis wrote:
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.").
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