LA CROSSE, Wis. – When he learned he’d been fired from his position as Chancellor at the University of Wisconsin-La Crosse, Joe Gow suggested that in so doing, the university had violated his First Amendment rights.
“My wife and I live in a country where we have a First Amendment,” Gow said, per the Associated Press. “We’re dealing with consensual adult sexuality. The regents are overreacting. They’re certainly not adhering to their own commitment to free speech or the First Amendment.”
While reasonable people can disagree on whether Gow’s firing as Chancellor was an overreaction (his tenure as a professor will be reviewed, as well, according to the university), whether his sacking violates the First Amendment is a more complicated question than one might think.
“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,” wrote attorney Ken White (AKA “Popehat”) in a recent edition of his newsletter, The Popehat Report, adding that as the Miller Test is currently applied in the U.S., “there’s functionally no chance that (the videos Gow and his wife produced) will be prosecuted.”
The analysis doesn’t end there, however. As White noted in his newsletter, that question pertains to “the government wearing its ‘sovereign’ hat — acting as Chancellor Joe Gow’s civic authority with the power to prosecute.”
As Gow’s employer, rather than his prosecutor, does the government have the right to fire Gow from his government job in these circumstances? Again, the question is more complicated than it might seem, hinging on factors that go deeper than the headlines about a college chancellor making porn on the side.
“First, we ask if Mr. Gow was speaking as a private citizen or in his capacity as a government employee,” White observed. “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.”
White also noted that 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,” White wrote. “It’s not UNLV after all. So far so good for Mr. Gow.”
The second question in the analysis is whether Gow was “expressing himself on a matter of public concern.”
“Matters of purely private concern and grievance… are not protected,” White wrote. “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.”
White added that 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.”
The third point of White’s analysis asks if Gow’s claim against UW-La Crosse were to survive, “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,” White noted. “That’s clear retaliation.”
White added that while 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 simply “indication that defense applies here.”
To this point, other than the second question, whether Gow’s speech was a matter of public concern, the balancing of factors doesn’t look too bad for Gow. But, if his claim against his employer did make it this far in a court’s analysis, it would likely run into trouble in the next step.
Next up for the court would be to conduct a balancing test “weighing the employee’s interest in their free speech against the government employer’s interest in workplace harmony and effective operation,” as White put it.
“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,” White wrote. “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,” White added. “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.”
White also reminded his readers that the balancing test he described “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,” White explained. “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,” White concluded, “if Mr. Gow sues over his termination, he will probably lose.”
None of this is to say that UW-La Crosse was compelled to fire Gow, or had no other choice than to do so, but if the question is whether the university violated Gow’s First Amendment rights in terminating his employment, the most likely answer appears to be no.
Gavel image by Ekaterina Bolovtsova from Pexels
