After Kirk shooting, school employees test limits of workplace speech

About two days after Charlie Kirk’s assassination, a South Carolina school district placed an elementary school’s 2021 support staff employee of the year on administrative leave. The reason? Her personal Facebook post about Kirk.

Lauren Vaughn, a teacher assistant at River Ridge Elementary School in Spartanburg County, had posted a quote from Kirk arguing that annual gun deaths are “a prudent deal” allowing us to “have the Second Amendment to protect our other God-given rights.”

Vaughn followed the quote with her own words: “Thoughts and prayers … The WHOLE point here is that any time someone is killed [it’s] a tragedy. Even someone I may not like. Even someone I disagree with. But instead of accepting it, why don’t we do something about it?”

Now, Vaughn is one of three former educators who have filed lawsuits contending that public school officials stifled their speech by firing them over contentious social media posts about Kirk’s death. The plaintiffs, based in South Carolina, Iowa, and Indiana, claim that the districts violated their First Amendment rights. But legal experts say that the constitutional rights of employees and employers are nuanced, varying based on the workplace and speech in question.

Since Kirk’s assassination nearly two weeks ago at Utah Valley University, employers in the private and public sectors have punished employees accused of celebrating or mocking Kirk’s death. MSNBC fired analyst Matthew Dowd, the U.S. Secret Service placed an agent on leave, and the American Broadcasting Corp. suspended Jimmy Kimmel’s late night show, though it later reinstated it.

In South Carolina, Vaughn filed her lawsuit in federal court on Thursday, alleging that school officials terminated her under the district’s social media guidelines instructing employees to be respectful in posts and “always represent the district in the best light.” She argues this policy is unconstitutionally overbroad, vague, and viewpoint-discriminatory.

Also on Thursday, Matthew Kargol, an Iowa art teacher and wrestling and track coach, sued the Oskaloosa Community School District. He contends that officials unlawfully ousted him after he posted “1 Nazi down” on his personal Facebook page in reference to Kirk’s death.

Kargol argues in his suit that the government can’t stifle his opinions as a public employee. He adds that his post was protected speech because he published it outside of work hours and its content was not connected to his job.

Finally, on Monday, the American Civil Liberties Union of Indiana filed a suit against Ball State University in Muncie, Ind., after officials fired Suzanne Swierc for criticizing Kirk online. Swierc, the school’s former director of health promotion and advocacy, posted on Facebook, “If you think Charlie Kirk was a wonderful person, we can’t be friends.” Her post caught the attention of Indiana Attorney General Todd Rokita, who called her remarks “vile.”

But Stevie Pactor, an attorney at ACLU of Indiana, said in a statement that “public employees are free to speak on matters of public concern, so long as they are speaking as private citizens. … Swierc’s Facebook post clearly meets these criteria, and her termination was unconstitutional.”

While the First Amendment’s free speech protections generally don’t apply to private schools, they do apply to employees of public schools and public universities such as these, explained Brad Jacob, a constitutional law expert at Regent University School of Law. These employees, who are ultimately government employees, also have the right to speak out on issues of public interest outside of work hours.

But, even if their speech is protected, the government can still lawfully fire these employees if it has a compelling interest, Jacob said. For instance, in the Iowa case, Jacob expects the school will combat Kargol’s suit by arguing that the teacher’s post disrupted his ability to provide students with a positive classroom experience.

“This teacher’s comments were so toxic, so over the top, that he’s not going to be able to perform his teaching duties,” Jacob said. “Even if it is protected free speech, it is still possible for the government to win [this case], and it strikes me that this speech is extreme enough, that the case probably could go either way.”

University professors have even more “heightened protections” than teachers, said Aaron Terr, the director of public advocacy at the Foundation for Individual Rights and Expression. The Supreme Court has recognized that in pursuit of academic freedom, professors have the right to express ideas that the university might disagree with.

“Universities are knowledge-producing institutions, and in order to serve that mission, they have to give their faculty a wide latitude to … express even controversial views and to explore and research on a range of ideas,” Terr said. “Even those that might be politically sensitive or that might anger the public, because that’s the only way to faithfully serve the mission of advancing human knowledge.”

But speech rights look drastically different for employees at private companies. The First Amendment doesn’t restrict private employers’ ability to fire their employees, Terr said. Some states—California, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, and West Virginia—have laws that protect employees from being fired for their speech off the job, but these protections aren’t the same as a First Amendment “shield,” Terr noted.

Even though the First Amendment doesn’t protect private employees, Terr still worries that firings in the private sector may chill public speech.

“It’s one thing for a private employer to make a considered decision to part ways with an employee due to workplace destruction or an intolerable difference in values,” Terr said. “But it’s another for fleeting social media mobs to grab their pitchforks and get people fired and thereby dictate the limits of acceptable speech in the political arena.”

Kimmel’s suspension raises another constitutional concern—“jawboning,” according to Ilya Shapiro, the director of constitutional studies at the Manhattan Institute. The Cato Institute has defined jawboning as “the use of official speech to inappropriately compel private action.”

Late-night host Jimmy Kimmel’s suspension came after Brendan Carr, the Federal Communications Commission chairman, threatened ABC with the potential loss of its license due to Kimmel’s comments about Charlie Kirk. As of Monday, Disney had reinstated Kimmel, but if the company had followed through with the suspension, the host could have argued that the government used strongman tactics to indirectly punish him—a form of jawboning.

Shapiro admitted this would be a “hard case” for Kimmel to make, since ABC could have argued it suspended Kimmel for plenty of other reasons, such as low ratings.

“It would be an uphill climb to make that kind of lawsuit,” Shapiro said. “I don’t think Kimmel was fired because of Chairman Carr’s comments, but it’s not a good look. It’s not helpful to have the government making threats, whether they’re real or not.”