Case Summary
In the field of child psychiatry, Dr. Allan Josephson was a respected figure known for his expertise and unwavering integrity. As the head of the Division of Child & Adolescent Psychiatry at the University of Louisville (a public university), his leadership propelled the division to national recognition. But in 2014, Dr. Josephson began to notice concerning trends in his field. As he and his colleagues confronted a rise in cases of gender dysphoria, practitioners were promoting rushed treatments for children struggling with gender identity issues, and bypassing thorough psychiatric evaluations, in favor of immediate transition methods. This new approach often puts vulnerable children on a path to medicalization, including the use of hormones and plastic surgeryāall with potentially serious life-long, irreversible health consequences.
In October 2017, Dr. Josephson participated in a panel discussion on gender dysphoria at the Heritage Foundation. There, he shared his professional insights, advocating for a cautious approach that prioritizes understanding, and addressing underlying psychological factors. Unfortunately, his remarks at the Heritage Foundation sparked backlash at his university. Despite his views being supported by scientific research and expressed at an off-campus event in his personal capacity, some faculty and staff members reacted with hostility. In what is unfortunately an all too familiar pattern, Dr. Josephson was targeted for ācancellationā and was ultimately ousted from his esteemed position as a medical school professor.
Undeterred by the injustices that he encountered, Dr. Josephson took a bold stand, filing a lawsuit asserting violations of his First Amendment rights with the assistance of Alliance Defending Freedom (ADF). ADF argued that government-run universities must uphold principles of free speech and academic freedom, refraining from punishing professors for expressing dissenting opinions. Although the federal district court’s ruling in March 2023 upheld Dr. Josephson’s right to trial, university officials are currently attempting to evade accountability using the doctrine of āqualified immunity.ā This legal doctrine shields government officials from being held personally liable for violating someone’s constitutional rights while performing their official duties, as long as they don’t go “too far” and do something that is “clearly established” to be illegal.
Mountain States has joined the cause, offering an amicus brief to support Dr. Josephson. Standing in solidarity with him, Mountain States opposes the application of qualified immunity in First Amendment cases.
The doctrine of qualified immunity was originally intended for law enforcement officers facing life-or-death decisions. In an emergency where lives or property are on the line, courts often want to protect officers from worrying about whether they will end up being sued for damages if they get something wrong. While this doctrine is more defensible in the law enforcement context, it makes no sense in the realm of free speech, especially where university administrators have all the time in the world to consider the constitutionality of their conduct and have access to sophisticated legal advice and many other resources. MSLF maintains that allowing immunity in such cases undermines the fundamental principles of the First Amendment.
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What’s at Stake
At its heart, this case goes beyond Dr. Josephson, shining a light on the essential rights of every American to freely express themselves without fear of retaliation. The potential application of qualified immunity poses a significant risk, as it provides government actors with an incentive to experiment with Americansā free speech rights. They know they get one āfree bite at the appleā and will not face consequences, at least the first time around.
For our clients:
MSLF has long been dedicated to defending Americans’ freedom of expression. The doctrine of qualified immunity presents a barrier to upholding these rights by incentivizing government actors to disregard them, knowing they may escape accountability.
For Americans:
Our government was established to safeguard our liberty, not test its boundaries looking for weak spots. Government actors should stay far away from constitutional lines and err on the side of freedom. However, qualified immunity turns this notion on its head, encouraging government actors to push the limits, confident that they won’t face repercussions due to unclear legal standards. In a world where qualified immunity can prevent justice for First Amendment violations, every Americansā right to free speech is at risk.
MSLF’s brief in the case emphasizes our commitment to safeguarding Americans’ freedom of expression. This case marks a critical juncture in the ongoing discourse surrounding qualified immunity in First Amendment cases. By challenging the status quo and advocating for accountability, MSLF aims to ensure that government officials cannot infringe upon constitutional rights without consequence. In a society built on principles of liberty and democracy, it’s imperative to rein in the doctrine of qualified immunity and protect the rights of all Americans to engage in robust, unrestricted speech.
