A Note on the Florida University Ban

November 1, 2021 8:14 a.m.

Most discussions of Florida’s decision to forbid professors at state universities from serving as expert witnesses in cases challenging its voter suppression laws have focused on it as a question of free speech versus the state. And it is certainly that. In every legal sense it is that. It’s an almost comical abuse of power. But I want to highlight a distinction which may seem semantic but I think is more than that.

The danger is less the state than a certain type of political party, the Trumpite GOP.

In the order to the professors the school officials wrote, “As UF (University of Florida) is a state actor, litigation against the state is adverse to UF’s interests.” Needless to say this tosses out whole canons of custom and perhaps law of freedom of speech and academic freedom in the US. But again, this is really a political party and Ron DeSantis as its in-state leader.

One of the features of American democracy is a fairly sharp line between political activity, the electoral activity of parties and the functions of the state. A state governor has budgets and powers to run the state. But he or she can’t use them to run for reelection. Ignoring these distinctions was one of the most defining features of Trump’s presidency. I am the state, as it were.

We can see now that that approach increasingly suffuses the whole GOP. It would certainly be a conflict of interest for people in the state’s solicitor general’s office to be serving as expert witnesses against the state law. It’s a state law and the solicitor general is the lawyer whose job it is to defend the state’s laws before the courts. But public universities have no comparable role. Again, it’s personalization and party-ification of the powers of the state.

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