Legal Question in Business Law in California

Are my 1st and 14th Amendments rights being violated by the university?

Can a senior official employed by a public university in California say the following (below) to a prospective vendor (that sent a proposal to do business with the university) without violating her 1st and 14th Amendments rights�the right to express information, ideas, and opinions free of government restrictions based on content. Or her rights pursuant to the restraints of trade law as set forth in the California Business and Professions Code � 16600 wherein it concludes�California�s stated public policy that its citizens shall retain the right to pursue any lawful employment and enterprise of their choice:

The following e-mail of the highly ranked official of the university is attached below. It was addressed to me, the prospective vendor and copied to 2 prospective donors (publicly traded companies) as well to highly ranked university officials and the regents, including the dean of the department and the chancellor of the university

I have just returned from an late summer holiday to find another of your messages below. I will reiterate that there seems to be a serious misunderstanding in our communications here. The University has not signaled any interest in pursuing your proposal . We respectfully ask that you refrain from contacting third parties about your proposal, until such time, if ever, there is any campus interest in engaging further.

I am confident that it was not your intent to interfere with our relationships with existing sponsors or partners, however your communications have created confusion and concern. I therefore must ask that you cease such unsolicited contacts now and in the future.

1) Contrary to the implication in the phrase �I will reiterate that there seems to be a serious misunderstanding in our communications here� there was never a pervious e-mail sent to the prospective vendor from the university.

2) The university official had the proposal for 55 days before writing a letter setting out the parameter, the potential timeframe, and the portal for establishing a new academic department to confer degrees. Further in the letter he stated that he had taken the liberty of sharing the proposal with the dean of the likely department so that he (the dean) could assess its feasibility, especially in light of the recently passed state budget that would likely place an even greater financial burden on the university in the coming months

I thanked him for sharing the proposal with the dean and suggested a possible path for a successful outcome for the proposal based on his kind actions of passing the proposal on for further consideration.

Moreover, I stated that I had shared the proposal with a prospective donor to support the proposal by sending the university $2 million to start the program in the likely department at the university.

After three weeks of sending our reply letter to the official at the university, and no reply, we began to send solicitations letters (including our proposal) to companies that the university was doing business with; asking that they support our proposal by sending letters of support and to help fund the proposal under consideration by the university.

In the letters it was made clear that all funds were to be sent to the university and not us, the prospective vendor. The letters were copied to the chancellor of the university and to others officials of the university and the regents. We were very transparent in all our communications with everyone, at all times.

There was no interference whatsoever with any existing contracts or agreements between the university and their sponsors or partners by merely sending our unsolicited request to them. Our request was only that the sponsors and partners (publicly traded companies) send funds to the university to support our proposal.


Asked on 9/21/11, 12:37 pm

2 Answers from Attorneys

No, your constitutional rights are not being violated. In commercial matters the government is entitled to the same protections from harmful speech and communications that any business entity is entitled to. Free speech is not an absolute right, and speech in pursuit of business matters has much less protection than political and other "pure" speech, as over two hundred years of First Amendment jurisprudence elaborates. As for section 16600, it protects the right to pursue any lawful trade or business, but not by any and all means without regard for the rest of California law and the rights of others. There is no way to evaluate over the internet whether you have acted within your rights or not, but there is certainly no absolute right under the First Amendment or section 16600 to do and say anything and everything you want in pursuit of your venture, without regard for the rights of the University or the law, just because you are dealing with a government entity.

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Answered on 9/21/11, 1:16 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Indeed, intentional interference with an existing commercial relationship can be a tort. You may be closer to overstepping proper legal bounds than is the university.

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Answered on 9/22/11, 9:44 am


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