“Barbara Bush was a generous and smart and amazing racist who, along with her husband, raised a war criminal. F--- outta here with your nice words.”
She then tweeted:
“Either you are against these pieces of s--- and their genocidal ways or you're part of the problem.”
“I'm happy the witch is dead. can't wait for the rest of her family to fall to their demise the way 1.5 million iraqis have. byyyeeeeeeee."
In response to heavy criticism for these tweets, the professor tweeted, “I will never be fired.” She also reportedly stated that she is a tenured professor and makes $100,000 a year.
So, is this professor correct? Can she not be fired from her job for her nasty tweets? If she is indeed tenured, then she is probably right. One of the purposes of the tenure system is to allow professors to make controversial statements. These statements are supposed to relate to their fields of academic research, and not just be nasty statements that make the university look bad, so it is possible that her statements would not be protected by her tenure agreement. Without knowing what her tenure agreement says, I cannot say for sure whether her statements are protected by tenure, although I imagine they likely would be.
If she was not tenured, could the university fire her for her statements? Probably not. Fresno State is a public university, so the First Amendment applies to it. In order to determine whether an employee’s speech is protected by the First Amendment, courts look at three things:
- Whether the employee is speaking as a private citizen;
- Whether the employee’s speech was about a matter of public concern; and
- Whether the government employer’s interest in efficiently fulfilling its public serves is greater than the employee’s interest in speaking freely.
I think a court would probably find that all three of these elements are satisfied here, although that is not completely clear. First, it seems as though the professor was speaking as a private citizen. Nothing in her tweets made it appear as though she was speaking on behalf of the university, or making her statement in the course of her duties as a professor.
Second, courts have generally defined what constitutes a matter of public concern pretty broadly. Barbara Bush’s death, and whether she was a racist and her son a war criminal, is a matter of public concern. I cannot see how such a statement would relate to the professor’s job functions.
The third factor is the most questionable. Courts analyze the public employer’s interest in creating an efficient workplace by looking at whether the speech would interfere with the employee’s work responsibilities, what the nature of the relationship is between the speaker and the person at whom the criticism was directed, and whether this speech would create problems in the workplace. Again, I do not think that this speech would interfere with the professor’s job duties to such an extent that a court would find it to not be protected by the First Amendment. She is not criticizing any of her colleagues or superiors, and it does not seem as though it would undermine the discipline of her workplace.
Ultimately, I think the professor is right. Based on her tenure and the fact that she teaches at a public university, I do not think she can be fired for her tweet, despite its crass and ill-timed nature. It will be interesting to see whether she is fired regardless. It does not appear as though her superiors were too happy with her conduct, as the Fresno State President stated, “I condemn the tone, substance and timing of [the professor’s] comments on Twitter last night. I want that to be unambiguous. And how do I feel? I was shocked, upset, appalled just like everybody else.”
Feel free to contact me if you have any questions about public sector employee free speech.
