“A University of Arkansas-Little Rock professor who promised to never stop “CELEBRATING” the assassination of conservative leader Charlie Kirk has officially been fired,” reports The College Fix:
Chancellor Christina Drale upheld the firing of Felicia Branch for her comments soon after Kirk’s assassination last month while speaking at Utah Valley University. She was a non-tenure track professor who ran the school’s Low-Income Taxpayer Clinic.
In a since-deleted Facebook post, Branch wrote “It never fails. People have come out caping for the devil that walked among us […] so no. I will not pull back from CELEBRATING that an evil man died by the method he chose to embrace.”
“You’re so QUICK to chastise, thinking we’re simply celebrating a death. We. Are. Not […] evil begets evil [and Kirk] is no longer able to beget evil,” she said. “That’s cause célébre.”
Branch also posted a meme showing members of the Ku Klux Klan surrounding a burning cross with the title “PEOPLE MOURNING CHARLIE KIRK.”
The chancellor’s decision came after a faculty appeals council recommended a warning instead. Branch argued her social media post had garnered little attention and that she made her comments as private citizen. Leading state officials, including Governor Sarah Sanders, called for Branch’s termination, however.
The chancellor argued that Branch’s speech was disruptive, and thus was not protected by the First Amendment (the Supreme Court has said that public employees have a right to engage in even harsh and unpopular speech on matters of public concern, but only if it does not cause disruption in their workplace, such as interfering with their employer’s effectiveness in dealing with the public, or interfering with their ability to deal with co-workers). The chancellor said:
The effect of one’s speech is not logically confined to one channel of feedback. In this case, the feedback was overwhelmingly negative. Your social-media posts were in fact disruptive to the operation and effectiveness of the Low-Income Taxpayer Clinic, the Bowen School of Law, and UA Little Rock. Moreover, given your insistence that your messages were wholly unproblematic, I don’t believe that a warning or reprimand would convince you otherwise or prevent future occurrences.
The chancellor suggested that even if “third parties caused a disruption” by generating a hostile reaction to Branch’s speech, that disruption still could be a basis for firing Branch. That is true — public employees can be removed when their speech generates a sufficiently hostile reaction, even though private citizens can’t be punished because their speech triggered a hostile reaction. The Supreme Court has explained that public employees have more limited free speech rights against their employer than ordinary citizens have against the government (see Waters v. Churchill (1994). So inflammatory speech that creates unrest can often be punished if the speech is from a public employee, even though inflammatory speech that creates serious unrest usually can’t be punished when the speech is by a private citizen. (See Terminiello v. Chicago (1949)).
The Chancellor suggested there were angry “reactions through multiple channels” and from “multiple audiences” in response to Branch’s speech, but the Chancellor failed to explain exactly what those reactions are, or how intense or long-lasting they were. So who knows if the hostile reaction really did disrupt the university’s or the clinic’s operations or effectiveness.
The Chancellor expressed concern that “the public may judge” the university and its clinic based on Branch’s “utterances,” which she said amounted to a “serious violation of the professional standards expected by [the University’s] Bowen Law School.”
Branch had argued that the immediate “direct responses” to her social media posts were “relatively low” in intensity, and that any disruption only occurred later after “third parties” — outside conservative outlets — inflamed members of the public to the point of causing much angrier responses.
But even the latter hostile reaction could constitute a disruption under First Amendment caselaw dealing with public employees.
So it is not clear from the Chancellor’s brief letter whether Branch’s speech was unprotected and disruptive, or protected by the First Amendment because it really was not all that disruptive.
The Chancellor’s “professional standards” argument probably wouldn’t work in court, unlike her “disruption” argument, because the Supreme Court has said that the inappropriate or controversial nature of a public employee’s speech does not automatically strip it of First Amendment protection. For example, the Supreme Court voted 5-to-4 to find that the First Amendment was violated when a public employee was fired for hoping that a future assassination attempt on President Reagan would be successful, because that inappropriate speech did not offend the public employee’s immediate co-workers all that much, or otherwise cause a disruption. (See Rankin v. McPherson (1987)).
