Yesterday Fresno State Professor Randa Jarrar effusively celebrated the death of former First Lady Barbara Bush on Twitter.
Lots of people are clamoring for her to be fired.
Can she be, legally, consistent with the First Amendment?
Maybe.
I've written plenty of times before about the relevant legal analysis. I also discussed the lead case on the issue, and interviewed its plaintiff, in Episode Three of the "Make No Law" podcast. Here it is again, in shorter form:
Generally, the First Amendment prevents only the government, not your employer, from punishing you for your speech. But what if the government is your employer? Well, then the First Amendment offers you some protection from being punished by your employer for your speech. That protection is governed by a multi-stage analysis.
The first stage of the analysis is a question: was the public employee speaking on a matter of public interest? The quality or decency of the speech does not factor into this question. Here, Jarrar was making political comment on the death of a public figure. It's a matter of "public interest," as that is defined in the relevant cases. Had she tweeted about some purely internal matter — for instance, about how terrible her teaching assistant is — it would not have been.
The second stage of the analysis is another question: was the government employee acting as a private citizen, or as part of their job duties? If they were speaking as part of their job duties, the First Amendment doesn't protect them. There's a relevant emerging area of law here: that rule probably doesn't apply to public university professors. So, most likely, the First Amendment protects a state university professor even if they are speaking as part of their duties — with respect to the content of their classes, for instance.
Here, it seems clear that Professor Jarrar was not tweeting in the course of her duties as a professor. She was apparently on leave at the time and the scope of her duties do not include Twitter. Fresno State proclaimed in a tweet that she was speaking in her private capacity. (That was a clear reference to this analytical structure.) Therefore, we get to the next step of the analysis without having to address the emerging area of law about state college professors.
The third stage of the analysis involves a balancing test: the interest of the public employee against the interest of the public employer in promoting the efficient delivery of public services. This is by far the most touchy-feely part of the analysis. Can the government employer show that the speech in question so disrupted the workplace that it interfered with orderly business in a way that outweighs the employee's speech rights? A court is likely to give more weight to the employee's speech right if freedom of expression is an inherent part of the job, as it is (or ought to be) for a college professor. For instance, the Supreme Court has said:
Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.
So, to justify firing someone like Professor Jarrar, a state school would need to demonstrate that her speech caused rather substantial disruption of education. Of course, Professor Jarrar may have made it easy for them:
She also provided a telephone number as if it was her contact number. But the listed number ended up going to a suicide/crisis line.
Causing your school's suicide hotline to be flooded with troll phone calls presents a very arguable case for substantial disruption, depending on the evidence.
(If you think that this structure creates an incentive to react disruptively to speech, in order to supply a basis for a professor to be fired, you'd be right. If you think that schools might lie about the amount of disruption, you'd be right.)
My assessment: Professor Jarrar was speaking as a private individual on a matter of public interest. It would be difficult for Fresno State to establish that the tweets about Barbara Bush themselves caused the sort of disruption of the school's business that so outweighs her free speech interests so that it would justify her termination. However, her tweet directing people to the school's suicide hotline presents a substantially stronger case for disciplinary action by the school.
Note that this analysis does not address other limits on discipline against her, such as California state law and the union contract between Fresno State and its professors.
Also beyond the scope of this post: effusive condemnations of her behavior, discussions of which "side" is hypocritical about free speech, discussions of foreign policy circa 1988-1992, etc.
Copyright 2017 by the named Popehat author. https://www.popehat.com/2018/04/18/lawsplainer-can-a-state-university-fire-a-professor-for-being-an-ass-on-twitter/
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