State government employees are taking to the courts after being fired over social media posts criticizing conservative activist Charlie Kirk upon his assassination.
More than a dozen employees, from a Tennessee high school science teacher to a landscape supervisor at Auburn University, have sued over allegations their punishments violate the First Amendment.
The challenges raise questions of the line between official and private speech and states’ ability to police employees’ social media while off the clock.
Kirk, 31, a prominent conservative activist who founded Turning Point USA, was fatally shot last month while speaking at Utah Valley University. His alleged killer is in custody and faces criminal charges.
As the assassination reinvigorated a national reckoning over political violence, prominent influencers and Republicans pressured employers to fire people who responded to Kirk’s assassination by criticizing him. Even Vice President Vance joined in, telling people to “call them out, and hell, call their employer.”
Many of the terminations involve media companies, airlines and other private companies not subject to the First Amendment. But state governments are, and their firings are now inundating the courts.
In one of the most recent lawsuits, Auburn University landscape supervisor Kevin Courtwright is seeking reinstatement after being fired over a post and comments he made on Facebook.
“One fascist down; a whole socio-political movement go. FAFO nazi trash,” Courtwright wrote the night of Kirk’s killing.
Courtwright says he took down the comments after an Auburn official encouraged him to do so. The school later fired him.
“However ill-considered Defendant perceived Plaintiff’s comments to be, his comments did not render him unfit for his job as a Landscape Supervisor,” the lawsuit reads.
Explaining why he took aim at Kirk’s pro-gun rights stance, Courtwright’s lawyers emphasized a student in 2014 intended to shoot up his son’s high school. Police chased him to a nearby parking lot where Courtwright was working as a landscaper, the student shot himself in the head, and Courtwright was tasked with cleaning up his splattered human remains.
It left an “unshakable horrific impression on him,” said Courtwright’s lawyers, who emphasized Kirk’s previous comment that “it’s worth to have a cost of, unfortunately, some gun deaths every single year so that we can have the Second Amendment.”
Courtwright wasn’t the only employee punished as Auburn President Christopher Roberts vowed to take action in response to growing pressure.
“It has come to our attention that there are Auburn employees who made social media posts that were hurtful, insensitive and completely at odds with Auburn’s values of respect, integrity and responsibility in violation of our Code of Conduct. We are terminating the employment of those individuals,” Roberts wrote in a Sept. 17 announcement.
Sen. Tommy Tuberville (R-Ala.), who is also Auburn’s former football coach, commended the school for firing “sick people who mocked” Kirk’s assassination.
Courtwright was terminated five days later. Auburn also faces a lawsuit from lecturer Candice Hale, who was placed on leave.
The day after Kirk’s death, Hale had written on Facebook, “I do not mourn oppressors. I do not show them empathy. I don’t give a damn about evil racist, fascist, misogynist, homophobic, transphobic, xenophobic, mediocre white men who claim to be Christian individuals and then do everything Christ would not do on Earth.”
“I’ve said worse things,” Hale said in an interview. “And for them to pick that for me, I think they were only doing that at the request of Sen. Tommy Tuberville.”
Hale is separately suing Auburn and the University of Alabama, where she was terminated as an instructor in the school’s gender and race studies department. The schools did not return requests for comment.
Hale started a GoFundMe that has raised more than $2,500. She said she has received a barrage of profane messages online since filing the lawsuit.
“I feel sad for them, that they are so ingrained with ignorance that they think this highly of a man,” Hale said.
The Supreme Court has long held that public school teachers do not surrender all their free speech rights, and in some circumstances the First Amendment protects teachers speaking as a citizen addressing “a matter of public concern.”
“Of course, none of this means the speech rights of public school employees are so boundless that they may deliver any message to anyone anytime they wish,” Justice Neil Gorsuch wrote in a 2022 opinion favoring a high school football coach fired for praying on the 50-yard line after games.
“In addition to being private citizens, teachers and coaches are also government employees paid in part to speak on the government’s behalf and convey its intended messages,” Gorsuch wrote.
Judges use a balancing test that asks whether the state had an adequate justification for treating the employee differently from any other member of the general public.
Joy Gray, chief of the Arkansas Department of Health’s tobacco prevention program, sued after being fired over Facebook comments, including one that read, “Oh no, what if he’s ok?” Gray also raises due process arguments and claims she was entitled to a hearing to clear her name.
“The Complaint only alleges that Ms. Gray’s speech consisted of ‘political commentary on matters of public concern,’ without providing sufficient facts to allege a constitutional violation,” the state responded in court filings last week.
In Florida, biologist Brittney Brown is contesting her termination from the state’s Fish and Wildlife Conservation Commission. Brown monitored imperiled shorebirds in a wildlife area near Panama City, Fla.
She shared on her Instagram story a whale-themed satire account’s post that read, “the whales are deeply saddened to learn of the shooting of charlie kirk, haha just kidding, they care exactly as much as charlie kirk cared about children being shot in their classrooms, which is to say, not at all.”
The repost gained attention after it was amplified by the Libs of TikTok social media account, which called for her to be terminated.
Brown claims she was fired “after consultations with senior officials in the DeSantis administration.” DeSantis’s office did not return a request for comment.
In another case, a judge has grappled with issues of parental rights. Emily Orbinson was suspended as a high school science teacher in Franklin, Tenn., after posting “don’t mourn his death.” Sen. Marsha Blackburn (R-Tenn.) had called for her termination.
Orbinson’s suspension prohibited her from contacting any school system employees or students, but she has an enrolled 5-year-old daughter. A federal judge granted Orbinson’s request to contact her daughter’s school and participate in volunteer opportunities as the lawsuit proceeds.
Orbinson and many of the other lawsuits remain in early stages. But one has already been resolved.
The University of South Dakota dropped its bid to terminate art professor Michael Hook for writing on Facebook, “I don’t give a flying f— about this Kirk person,” after a judge temporarily reinstated him.
Unlike some of the other cases, Hook had removed his post within hours and apologized before the school punished him.
“I hope the State now understands that the First Amendment prohibits it from punishing anyone for speech about public issues — no matter how much State or national leaders or others disagree with it,” Hook said in a statement.
