319 F.3d 878

FAIRCHILD, Circuit Judge,
concurring.
Plaintiffs complaint contained twelve counts. A magistrate judge considered pre-trial motions to dismiss and recommended dismissal without prejudice of Counts II and IX through XII, but denial as to other counts. The district judge granted the motions to dismiss the counts recommended, but with prejudice. The parties consented that the case proceed before the magistrate judge. Certain counts were withdrawn. Later the magistrate judge granted defendants’ motion for summary judgment on the remaining counts, III (denial of procedural due process), IV (violation of substantive due process rights) and V (Section 1985(3)). I have no trouble affirming as to those counts. The undisputed facts shown on summary judgment disclose that defendants had acquired, without any violation of due process, knowledge of a pattern of conduct by plaintiff which they reasonably found unacceptable in a faculty member.
Count II is founded on the First Amendment to the federal constitution and Count IX on the constitution of Illinois. Viewed on its face Count II should not, in my opinion, have been dismissed. Separate analysis of Count IX is unnecessary now.
The gist of Count II is that plaintiff was an assistant professor of psychology; that he and a number of faculty, post-doctoral and graduate students who were attending a professional conference met at a bar in their hotel after the close of the day’s scheduled activities; that they “engaged in a conversation precipitated by a public television broadcast dealing with the sexual behavior of non-human primates and the implications of that research for human sexual behavior”, that plaintiff “opined, based upon said television broadcast and research, that there is a relationship between pregnancy, orgasms, and extramarital affairs”; that the discussion was protected by the First Amendment; and that plaintiffs speech was a substantial and motivating factor in the defendants’ decision not to reappoint him.
The magistrate judge, in recommending dismissal of Count II, concluded that “the social discussion to which plaintiff contributed in the hotel bar does not constitute a matter of public concern.” He characterized the discussion as “casual” and compared it to the conversation considered in Swank v. Smart, 898 F.2d 1247, 1251 (7th Cir.1990), finding it too remote from the marketplace of ideas. The district judge agreed that “the social discussion at the hotel bar did not involve a matter of public concern.”
I do not agree. Plaintiffs theory may be bizarre, but as described in Count II it purported to be a theory in the field of psychology, offered by a person trained in that field to a group of others with similar training. It was far closer to the marketplace of ideas than the “employee grievance concerning internal office policy” considered in Connick v. Myers, 461 U.S. 138, 154, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) or the “conversation idle or flirtatious in character” considered in Swank. I do not think the fact that the statement was made in a bar or that the gathering was unplanned should make a difference.
Evidence of gestures and innuendos in plaintiffs conversation, later coming before the court in support of the motion for summary judgment, but not alleged in Count II, may well justify considering the bar episode in full context as part of plaintiffs pattern of conduct properly leading to non-reappointment, and defendants’ answer would doubtless have so claimed if Count II had not been dismissed. I write separately to make the point that as a matter of pleading Count II should not have been dismissed.

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