After several school districts and universities across the nation fired or suspended faculty for their controversial social media posts about the murder of Turning Point USA co-founder Charlie Kirk, some of these educators are now taking legal action, claiming their free speech rights were violated.
On Wednesday, a federal judge ordered the University of South Dakota to temporarily reinstate professor Michael Hook, after the board of regents recommended his termination over his social media post responding to Kirk’s killing.
Hook, a tenured fine arts professor, wrote on his personal Facebook account that he didn’t give a "flying f---" about Kirk, calling him a "hate-spreading Nazi." He deleted the post three hours later, but according to his lawsuit, the board of regents moved swiftly to fire him after prominent state officials called for his removal. Hook’s complaint alleges that the university retaliated against him for exercising his First Amendment rights by commenting, in his private capacity, on a matter of national discourse.
Matthew Kargol, a longtime art teacher at Oskaloosa High School in Iowa, brought a similar case, after he was fired after posting, "1 Nazi down" on his personal Facebook page. Kargol’s lawsuit stresses that his remark was "rhetorical hyperbole" about a widely covered political event and his termination was rooted in disapproval of his viewpoint, not related to any classroom disruption or job performance.
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Kirk was assassinated during a campus event in Utah on Sept.10, sparking widespread attention and polarized commentary. Conservative lawmakers and advocacy groups quickly spotlighted social media posts from professors and teachers appearing to celebrate Kirk's killing and demanded their firings.
Legal experts debated whether these posts were protected by the First Amendment, in comments to Fox News Digital.
Jessie Appleby, an attorney with the Foundation for Individual Rights and Expression (FIRE), said the courts make sharp distinctions between speech tied to an employee’s job duties and speech by educators in their private capacity.
"Professors and any government employees have a First Amendment protected right to speak as citizens on matters of public concern," Appleby said. "When professors post on social media about something like Charlie Kirk’s assassination, that speech is protected by the First Amendment."
"Political speech is considered the zenith of First Amendment protections," she added. Regarding calls for violence, "true threats and incitement to violence" are not protected, but "rhetorical hyperbole" or endorsing violence in "general" terms are protected speech, she explained.
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Not all experts see these cases as straightforward.
Brent Skorup, a Cato Institute legal fellow, said the law is complicated because of how courts balance free speech rights with schools’ operational needs.
"Celebrating a death may be constitutionally protected, but if it disrupts a school’s operations it can still be a fireable offense. Courts tend to give university professors more leeway than K–12 teachers, who are expected to model behavior for younger students," he said.
Skorup said employees have stronger cases when their speech clearly involves a matter of public concern and is expressed in their private time.
"Universities, on the other hand, have a stronger case if the speech was purely personal, unrelated to public issues, or made in a way that disrupted teaching and administration. Most disputes fall somewhere in between," he said.
He pointed to the Supreme Court’s 1987 Rankin v. McPherson case, where a clerical worker was reinstated after privately saying she hoped another assassination attempt on President Reagan’s life would succeed. He also cited Damiano v. Grants Pass School District, a Ninth Circuit case last June involving two Oregon educators, who were fired, then later reinstated, after opposing their district’s transgender policies. The court held that First Amendment issues remained unresolved and remanded the case for trial.
"Universities and schools will have a difficult time firing an employee for offensive speech," Skorup concluded. "However, if they can show it disrupts the classroom or campus, courts usually back the school."
Danny Karon, who teaches law at the University of Michigan and Ohio State, said codes of conduct and at-will employment give universities broad discretion.
"Colleges, universities, and plenty of other entities have codes of conduct by which their faculty members and employees must abide," he said. "If a professor violates these terms, a university is within its rights to fire them. This is even more true where an employee is at-will, meaning they may be fired for pretty much anything except for protected reasons, such as race, religion, age, sex, or disability."
If a university is private, professors and students have even fewer protections, he added.
"This is no different from a restaurant owner posting a sign that says, ‘No shoes, no shirt, no service.' As a private entity, so long as the restaurant owner isn’t illegally discriminating against would-be customers, the owner is free to impose what rules they’d like. The same analysis applies to the professors and universities at issue here."
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Seth Berenzweig, a Virginia-based employment and compliance attorney, stressed that social media activity can legitimately cost public employees their jobs if it crosses certain lines. "Public school teachers and university professors can be terminated if they engage in social media activity their employers reasonably deem very offensive and unprofessional," he said. "This doesn’t mean people can’t have freedom of expression, but they also don’t have freedom from consequences."
Berenzweig predicted lawsuits like Hook's would fail.
"Although the Supreme Court in the early 1980s issued precedent supporting freedom of speech in an employment termination context, the Court has significantly changed over recent years, and has backed up employers’ authority to fire employees absent a clear statutory directive to the contrary… In sum, terminations due to very offensive social media postings celebrating the Kirk assassination are supported by law," he added.
But civil rights attorney Laura L. Dunn said the firings represent an unconstitutional crackdown.
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"When someone speaks in their personal capacity, rather than in a professional one, especially in protest of the federal government’s unwarranted elevation of a controversial figure (especially when children are being gunned down without nearly as much concern), they are protected by the First Amendment," she said. "We are losing our democracy, and no tragic event, not even an assassination, should be an excuse to limit our American freedoms."
Last week, the Oskaloosa Community School District released a statement responding to Kargol’s lawsuit that read, "This matter was handled in accordance with applicable federal and state law and Board policy. Because this is both a personnel matter and pending litigation, Oskaloosa Schools cannot provide further comment at this time. Our focus remains on creating safe, healthy, and kind schools that engage all students to embrace the power of learning."
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Kargol's attorneys did not respond to a request for comment. The University of South Dakota Board of Regents did not immediately return a request for comment.
Hook's attorney, Jim Leach, told Fox News Digital that Hook's free speech rights were violated, and he hopes this case and others will "educate government officials that they cannot punish people for their speech."