Law prof at public university suspended for Charlie Kirk comments; does that violate First Amendment?
Online comments about the death of political activist Charlie Kirk have led to the suspension of an assistant clinical education professor at the University of Arkansas Little Rock William H. Bowen School of Law.
Felicia Branch, who directs and teaches in the law school’s Low Income Taxpayer Clinic, was suspended with pay and will be investigated.
Branch wrote on Facebook that she “will not pull back from celebrating that an evil man died.” She also posted a meme showing Ku Klux Klan members at a cross burning with a caption reading “People mourning Charlie Kirk.”
Christina Drale, chancellor for the University of Arkansas at Little Rock, said in a statement that she supports the right to freedom of expression but “I oppose such violent rhetoric in the strongest of terms. As educators we should hold ourselves to a higher standard of conduct that values civil discourse, speaks clearly about the dangers of political violence, and that prioritizes a rigorous, fair-minded learning environment. The postings I read this morning do not reflect this standard.”
Publications with coverage include Reuters, KATV, the College Fix and KUAR.
Branch began working at the law school in July. She wrote several Facebook posts. One of them read, in part:
“It never fails. People have come out caping for the devil that walked among us.
“News flash Christians. The evil one isn’t one singular being. I’m going to need ya’ll to study a bit more.
“So no. I will not pull back from celebrating that an evil man died by the method he chose to embrace.
“Don’t tell people who have been targeted by someone like him how to feel, how not to post, how not to celebrate that he can no longer inflict his brand of evil. ….
“You’re so quick to chastise, thinking we’re simply celebrating a death. We. Are. Not. As I posted yesterday—evil begets evil. He is no longer able to beget evil. That’s cause celebre.”
Branch went on to refer to Kirk’s earlier statements defending gun rights. Kirk has has said he thinks the Second Amendment right is worth the cost of, unfortunately, some gun deaths every year.
Arkansas Gov. Sarah Huckabee and Arkansas Attorney General Tim Griffin have both called for Branch to be fired.
“The First Amendment protects your right to say what you want,” Griffin said in a press release. “It does not, however, guarantee you the job you want, regardless of what you say. The law school should terminate her immediately.”
Free speech experts have a different take.
“As a public university, the University of Arkansas is bound by the First Amendment, which protects speech some may find deeply unpopular or offensive,” says Zach Greenberg, faculty legal defense/student association counsel at the Foundation for Individual Rights and Expression, in a statement emailed to the ABA Journal.
“Faculty at public universities cannot be punished for merely expressing personal views outside of work, especially on matters of public concern. We’re actively investigating this situation and urge the university to uphold its constitutional obligations.
“There is no ‘hate speech’ exception to the First Amendment and there can’t be. The Supreme Court has rejected the idea time and again because ‘hate speech’ is inherently subjective. Any attempt to define it risks giving the government power to silence views it dislikes.”
Yale Law School professor Keith E. Whittington, writing at the Chronicle of Higher Education, also says public colleges are constrained by the First Amendment in how they can respond to demands to punish employees for hateful and incendiary speech.
“It is worth clarifying that in the United States, constitutional protections for speech are expansive, a fact not always reflected in the official statements from colleges,” Whittington writes. His article referred to several firings and other disciplinary measures taken against college professors before the controversy over Branch’s statements surfaced.
Mere advocacy for violence is generally protected from criminal prosecution by courts although incitement to imminent lawless actions and true threats are not, he says.
Turning to the application of the First Amendment to government employees, Whittington says professors and administrators at public colleges “enjoy some significant constitutional protections against disciplinary action by their government employer for their expressive activity.”
Professors at public universities generally have greater First Amendment protection than other government employees because academic freedom has been recognized as a special concern of the First Amendment, he says. The protections are greater when professors speak in their personal capacity than when speaking to students in the classroom.
“Given the special nature of a professor’s duties to freely discuss controversial ideas, their distasteful and inflammatory speech is constitutionally tolerated. Professors who publicly celebrated Charlie Kirk’s death should generally be immune from discipline,” he concludes.
Whittington nonetheless notes that universities are under extraordinary public pressure and public confidence in them is “in a free fall.” If professors are seen as contributing to intolerance, the balancing carried out by courts asked to protect their freedom could change, he warns.
A Journal request for comment sent to Branch’s law school email address was returned as undeliverable. She did not immediately reply to a request for comment left on her law school voicemail.
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