1 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, one1 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 legislative and one administrative, whi ch have the effect of

prohibiting state employees from acting a s 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 interest s 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 wh o is retained as or serves as an expert

witness or consultant in litigation against the state,

unless the state employee serves in t hat 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 § 1983State 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 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 E qual 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 P ullman

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 th at may be granted only if the

plaintiff establishes four elements: (1) a substantial

likelihood of success on th e merits; (2) a substantial

threat that the movant will suffer irreparable injury if

the injunction is denied; (3) that the threatened injury4

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, 2 50 (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 prelim inary 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 no t 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 by2 The State c oncedes 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 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 “spe ech”. 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 are6

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 testi mony commercial

speech. C entral 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 speec h 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 the7 [employee], as a citizen, in commenting upon

matters of public concern and the interest of

the State, as an employer, in pro moting 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 go vernmental 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

5 68; Connick v. Myers

, 461 U.S. 138, 145-149, 103 S. Ct. 168 4

,

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

a nd his audience’s legitimate need for access to the informat ion

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; W aters

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,---,8

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 tes timony bears on the

addictive nature of cigarettes/nicotine, its health consequences

and resulting public cost s, 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 agai nst the State9

(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 P ickering, is the State’s interest “as an

employer, in promo ting 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 desig ned 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.

W hatever 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,10

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 acknowledg ed by P ickering 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

N o. 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.11

Specifically, this Court does not see how the expert testimony of

the faculty-member plaintiffs in this cas e will adversely affect

the efficient delivery of educational services by the institutions

in which these faculty memb ers 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 s peakers”, 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 ad ditional 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 litigation3 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 unne c essary to discuss the merits of plaintiffs’ Equal Protection

challenge.

12 is punished. 3

“A statute is presumptively in consistent with the First

Amendment if it imposes a financial burden on speakers because of

the content of their speech.” S imon & 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). S ee 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 addressing13

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 agai nst 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 administratio n rules limiting expert testimony

which would not violate the First Amendme nt, 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);14

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 membe rs or other state

employees which adhere to our First Amendment jurisprudence.

AFFIRMED.

ENDRECORDDeMOSS, 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 Wi tness

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 R ailroad 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 "spee ch" in this case is "commercial

speech";

c. whether the speech in this case relates to "matters

of public concern";16 g:\opin\97-50734.con

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

rig hts of the plaintiffs/appellees under U nited States v.

Nati onal 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 direct ly connected

with, and are the product of, his employment by the s tate. 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.17 g:\opin\97-50734.con 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 wi th the majority that the district

court did not abuse its discret ion, 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.