The panel replaced its prior opinion, filed on September

4, 2013, and published at 729 F.3d 1011, with anew opinion,

denied a petition for panel rehearing, and denied a petition for

rehearing en bane on behalf of the court, in an action brought

pursuant to 42 U.S.C. § 1983 by a tenured associate

university professor who alleged that university

administrators retaliated against him in violation of the First

Amendment for distributing a short pamphlet and drafts from

an in-progress book.

The panel held that Garcetti v. Ceballos, 547 U.S. 410

(2006), does not apply to speech related to scholarship or

teaching. Rather, such speech is governed by Pickering v.

Board of Education, 391 U.S. 563 (1968). The panel

concluded that the short pamphlet was related to scholarship

or teaching and that it addressed a matter of public concern

under Pickering. The panel concluded, further, that there was

insufficient evidence in the record to show that the inprogress

book triggered retaliation against plaintiff. Finally,

the panel concluded that defendants were entitled to qualified

immunity from damages, given the uncertain state of the law

in the wake of Garcetti.

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