Public employers can dismiss their employees for “disruptive” speech. What is “disruptive” depends partly on how many people react negatively to the speech, and how severe their reaction is.
On most college campuses, saying something negative about Charlie Kirk — the assassinated conservative activist — doesn’t enrage that many people. Not even celebrating his death does. So there isn’t a significant enough potential “disruption” to justify firing employees who disparage Charlie Kirk.
But the University of Mississippi is in a conservative state. If someone there expresses approval of the killing of Charlie Kirk, that could enrage many people who like Charlie Kirk. So many people might become enraged that a disruption could result. If that happens, the employee could be fired, and then lose a First Amendment lawsuit challenging the termination.
Campus Reform describes a lawsuit by a former University of Mississippi employee fired for remarks about Charlie Kirk:
A University of Mississippi official has requested the dismissal of a lawsuit alleging he violated a staff member’s First Amendment rights.
The university fired the staff member after she reposted social media comments calling Charlie Kirk a white supremacist and “reimagined Klan member.”
Lauren Stokes, the former executive assistant to the vice chancellor, reposted a commentary to her private Instagram account in early September, labeling Charlie Kirk a “yt supremacist” and “reimagined Klan member” the day after his assassination.
“I have no prayers to offer Kirk or respectable statements against violence,” the post concludes.
Chancellor Glenn Boyce fired Stokes on Sept. 14, saying she had “re-shared hurtful, insensitive comments on social media regarding the tragic murder of Charlie Kirk.”
“These comments run completely counter to our institutional values of civility, fairness, and respecting the dignity of each person,” he said.
Stokes subsequently sued Boyce and the university for violating her First Amendment right to free speech. The University of Mississippi is a public institution.
On Dec. 10, Boyce requested that the lawsuit be dismissed on the basis that Stokes’s own complaint acknowledges the workplace disruption her repost caused.
“Immediately after her social media post went viral, the Plaintiff and the University realized that Plaintiff could not perform her job responsibilities, and the University concluded that her continued employment would inevitably disrupt the University’s operations,” Boyce’s motion says.
The motion further notes that Stokes says she “received harassing phone calls and emails, including death threats, nonstop for days.”
“In fact, Plaintiff so feared for her safety that she left town and closed her restaurant for two weeks,” it says. “The University, however, could not close and escape like Plaintiff did when the disruption spilled over to the University. Thus, the University made the best decision under these dire circumstances: terminate Plaintiff’s employment and prevent the disruption faced by Plaintiff from further manifesting on campus.”
It is probably too early to dismiss Stokes’ First Amendment lawsuit, because she only recently filed the lawsuit, and hasn’t even had a chance to conduct discovery to find out whether there really was a “disruption” or serious risk of a disruption at the university due to her speech. At this point, a court has to draw all available inferences in her favor, because her lawsuit is at a very early stage. As the Magnolia Tribune notes, “Boyce is seeking dismissal of the case at the ‘pleading stage,’ a remedy available when a lawsuit, taken with every inference available in the plaintiff’s favor, still fails to state a claim upon which relief can be granted.”
But the motion to dismiss her lawsuit is plausible in arguing that the angry response to Stokes’ speech could lead to disruption or safety risks, noting that Stokes “‘sought guidance’ on her safety from both the University’s HR and Police Department first thing the next morning, prior to her dismissal. It further recounts Stokes’ own allegations about threats to her, her family and her restaurant — threats that required her to leave town, to hire security, and to close the restaurant for two weeks. The University is correct that the law does not require it to wait until the same disruption is unleashed on its operation. The law permits reasonable predictions by a government employer.”
Sometimes, though, courts don’t allow public anger to override the free speech rights of public employees, as in the case at this link, Berger v. Battaglia (1985).
