In this case, the State has not identified how the State's interest in promoting efficiency of the public services it performs through its employees will be adversely affected by allowing state employees to serve as or be retained as expert witnesses or consultants. We may safely assume that there will be occasions when the State's interest in efficient delivery of public services will be hindered by a state employee acting as an expert witness or consultant, and therefore, the expert witness rider or TAMUS policy No. 31.05 would legitimately curtail that employee's speech. However, the problem with the rider and policy No. 31.05 is the quantity and quality of speech they will curtail, which would not adversely affect the interest of the State in efficient delivery of public services. That is, by their operation, the expert witness rider and TAMUS policy No. 31.05 would likely serve to silence those whose speech would not adversely affect the efficiency of the public services performed by the State through its employees. Specifically, this Court does not see how the expert testimony of the faculty-member plaintiffs in this case will adversely affect the efficient delivery of educational services by the institutions in which these faculty members serve. Even if such an adverse impact might occur, the State has not identified it. The State bears the burden of justifying these restrictions, and when it enacts a “wholesale deterrent to a broad category of expression by a massive number of potential speakers”, the burden of justification is indeed heavy.
National Treasury Employees Union, 513 U.S. at 466–67, 115 S.Ct. at 1013. In this case, the State's burden proved too heavy, and having identified the flaws in the expert witness rider and TAMUS policy No. 31.05, the district court properly enjoined their enforcement.