May A Public University Fire Its Chancellor For Appearing In Porn Videos On His Own Time?

First Amendment rights are constantly misunderstood by most Americans enjoying their protection. Were it not so, what would I have to gripe about?1 One of the most misunderstood questions in First Amendment law is whether government employers may fire government employees for their speech. As I explained at the beginning of this year, answering that question requires a complicated analysis of whether the speech is part of the employee's job, whether it's on a matter of public interest, and whether the government employer's interest in preventing disruption outweighs the employee's interest in speaking. Since that was my first post of 2023, it seems only fitting to return to the subject for the last post. But where to find a good example of the dilemma for analysis?

My friend and classmate Mitch Epner, who is always worth reading, came to the rescue with a piquant story out of Wisconsin. Joe Gow, the Chancellor of the University of Wisconsin-La Crosse, has announced that he was fired for appearing in porn videos:

So. Can they do that? The university I mean. Clearly Mr. Gow and his wife have a First Amendment right to produce, appear in, and distribute pornographic videos, so long as the videos do not stray into the very narrow and very rarely prosecuted First Amendment exception for obscenity. “Obscenity” for these purposes is material that meets the three-part Miller test, which may be summarized like this:

I prefer Justice Potter Stewart’s summary “I know it when I see it,” but opinions vary.

Anyway in modern America, as the obscenity test is applied, it’s not plausible that a video of two people having sex is going to meet this standard unless they are really very inventively filthy. You may think it should qualify as obscene under this test, but there’s functionally no chance that it will be prosecuted.

But that’s about the government wearing its “sovereign” hat — acting as Chancellor Joe Gow’s civic authority with the power to prosecute. What about the government wearing its “employer” hat — can it fire him from his government job?

Here’s how we answer the question.

First, we ask if Mr. Gow was speaking as a private citizen or in his capacity as a government employee. If he was speaking on the job, the First Amendment doesn’t protect him from being fired. That allows the government to fire you for being insubordinate, bad at your job, and impolitic at representing the government. There’s an exception to this rule for public university professors engaged in teaching, who are still protected even though their job is to teach. Here, there’s no indication that performing in pornographic videos was within the scope of Mr. Gow’s job as Chancellor. It’s not UNLV after all.2 So far so good for Mr. Gow.

Second, we ask if Mr. Gow was expressing himself on a matter of public concern. Matters of purely private concern and grievance (like, say, whether the Inspector General’s secretary keeps microwaving fish during her lunch break and the whole office smells like ass) are not protected. Matters of public concern are traditionally issues that are of legitimate news interest. You could certainly make an argument that the public is interested in pornography, given its vigorous consumption of it. But it appears to me that the Supreme Court has already foreclosed that argument. In 2004 they held that a City of San Diego police officer was not expressing himself on a matter of public concern by selling pornographic videos of himself, and that therefore the First Amendment did not protect him from termination. So this part of the test is fatal to Mr. Gow’s First Amendment claim unless his videos include some sort of commentary or exploration of a newsworthy issue. I don’t know, like, it’s a satire of Wisconsin’s redistricting crisis with the title “either way voters get screwed.”

Third, if Mr. Gow’s claim survived, we ask whether the government did something to retaliate against the protected speech. Here that’s easy — they fired him and apparently told him they were firing him over the porn videos. That’s clear retaliation. Sometimes it’s not so simple if the retaliation is some minor discipline or counseling or an investigation. The test is whether . . . oh dear . . . the test is whether a person of ordinary firmness would be chilled from speaking by the employer’s actions.

Fourth, the government can defend itself by proving that it would inevitably have fired Mr. Gow for reasons unrelated to his speech even if he hadn’t spoken. There’s no indication that defense applies here.

Fifth, if Mr. Gow’s claim still survives the analysis, then a court must engage in a balancing test, weighing the employee’s interest in their free speech against the government employer’s interest in workplace harmony and effective operation. Here, the fact that Mr. Gow’s job of Chancellor requires him to represent the university as its public face, and interact with alumni, donors, and the state legislature, probably plays a determinative role. Even if a court found that Mr. Gow’s pornographic videos represented speech on a matter of public concern, it would likely find that the university could fire him on the grounds that appearing in the videos was detrimental to his public role and therefore to the university. That’s how several courts have ruled — for instance, finding that sheriff’s deputies’ appearance in pornographic videos undermined their fitness and the reputation of the department. You could say that this analysis reflects a prudish and outdated attitude towards sex and/or pornography, but the point is that it’s a very practical and plausible concern about the reaction of the people Mr. Gow has to deal with on the job. (In recent years this balancing test often comes into play when public employees post racist garbage on social media and get fired, especially if they are in public-facing jobs where the public is supposed to rely on their professionalism and even-handedness.)

Remember that this test has nothing to do with whether Mr. Gow’s pornographic videos are protected from prosecution or lawsuits. Those represent Mr. Gow in his capacity as private citizen and the government in its capacity as sovereign. We’re talking about whether the government can discipline or fire him while wearing its employer hat. As you can see, the government has substantially more leeway to fire employees for speech than it would have to prosecute them for it. That’s a feature, not a bug.

In short, if Mr. Gow sues over his termination, he will probably lose.