IU law professor warns free speech advocates 'may be taking a risk with their job'

INDIANAPOLIS -- The First Amendment to the U.S. Constitution may be the most important because it prohibits the government from abridging a person's right to free speech.




But, in an "At-Will" state, what if the government is your boss?




In the wake of the assassination of conservative activist Charlie Kirk at least two public employees have been dismissed because of social media posts their respective bosses found objectionable.




Ball State University fired Suzanna Swierc, its director of health promotion and advocacy, after she posted on her personal Facebook page that while Kirk's killing was a tragedy, "his death is a reflection of the violence, fear and hatred he sowed."




BSU dismissed Swierc, claiming her post did "not reflect the culture of our campus nor the enduring values of the university."




Indiana Attorney General Todd Rokita applauded Swier's firing as "one of the first submissions posted to our portal. BSU made the right decision in firing her. Hope her vile comments were worth it."




Rokita has advised Hoosiers to report objectionable content by educators to his "Eyes on Education" portal.




Ball State also investigated a second employee who wrote that Kirk's killing "feels like karma paid a visit."




At the Indiana Department of Child Services, an employee was fired for her post after Kirk's death saying, "today was a real pain in the neck." Kirk died of a gunshot wound to the neck.




Lieutenant Governor Micah Beckwith supported the decision of DCS management to fire the employee, stating that "they took bold, immediate action and did what was right."




IU Maurer Law School Professor Steve Sanders, a constitutional law expert, told FOX59/CBS4 that typically objectionable speech is tolerated unless it can be proven injurious to the employer.




"If a government employee speaks on a matter of public concern, and the Charlie Kirk assassination clearly is that, then their employer must show that that speech has a disruptive or burdensome impact on their workplace. But what's important to know is that it can't be just speculative, 'Well, some people here in the workplace are gonna be upset about it.'




"It can't just be that people will be upset," said Sanders. "An employer can fire or discipline a public employee if they can demonstrate to a court that the employee's speech is unduly damaging, burdensome or disruptive to the employer's workplace and interest."




Sanders said the employer can be challenged in court to prove the damage the speech caused to the company, government or university.




"If you're a public employee like the people from Ball State who have been fired or disciplined, once again, if they go to court and choose to sue, there's a burden on Ball State to prove why tolerating their speech was too disruptive to Ball State."




Sanders said the right to free speech is not absolute in an "At-Will" state where employers have the upper hand.




"Unless you have a contract that says otherwise and unless you have some sort of tenure guarantee that says you can only be fired for specific causes, yes, your boss can fire you because of your political expression, because he doesn't like the color of your eyes, or anything else.




"I think it's important for people to understand that when they exercise their free speech rights, they may be taking a risk with their job."




Sanders said the conservative tilt toward punishing objectionable speech may be a natural pendulum swing that resulted from the cancel culture movement on college campuses during the last decade.




"Big picture, I think I see a lot of opportunism," he said. "Liberals are often in favor of free speech and decrying what's happened now, but liberals have arguably been responsible for some censorship on campus and a sense that you have to watch what you say. Now it's conservatives."




During the 1950s, Wisconsin U.S. Senator Joseph McCarthy led a purge of federal government employees that spilled out into the media and other facets of American life based on allegations, often unproven, of communist allegiances.




"McCarthyism was another time when people were intentionally put in fear of their rights of association and freedom of expression and speech by high-ranking government officials," said Sanders. "Even when the government is your employer, there is a certain level of tolerance that your employer has to have for your speech."




Indiana Gov. Mike Braun issued a statement that read, "In the aftermath of Charlie Kirk's assassination, there have been some terrible things shared, particularly across social media. While we must protect the First Amendment, calls for political violence are not freedom of speech and should not be tolerated.




"The Secretary of Education has the authority to suspend or revoke a license for misconduct, and the office will review reported statements of K-12 teachers and administrators who have made statements to celebrate or incite political violence."





via: https://fox59.com/indiana-news/iu-law-professor-warns-free-speech-advocates-may-be-taking-a-risk-with-their-job/