First Amendment rights are constantly misunderstood by most Americans enjoying their protection.
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rights → misunderstand → protection
Were it not so, what would I have to gripe about?1
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I → have → ?
One of the most misunderstood questions in First Amendment law is whether government employers may fire government employees for their speech.
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employers → fire → 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.
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interest → explain → interest
Since that was my first post of 2023, it seems only fitting to return to the subject for the last post.
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it → seem → post
My friend and classmate Mitch Epner, who is always worth reading, came to the rescue with a piquant story out of Wisconsin.
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who → come → Wisconsin
Joe Gow, the Chancellor of the University of Wisconsin-La Crosse, has announced that he was fired for appearing in porn videos:
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he → announce → videos
Gow told The Associated Press in a phone interview Thursday morning that regents had discovered that he and his wife, former UW-La Crosse professor Carmen Wilson, had been producing and appearing in pornographic videos.
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he → tell → videos
He maintained that he never mentioned UW-La Crosse or his role at the university in any of the videos and the firing violated his free speech rights.
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firing → maintain → rights
“My wife and I live in a country where we have a First Amendment,” he said.
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he → live → Amendment
“We’re dealing with consensual adult sexuality.
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We → deal → sexuality
The regents are overreacting.
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regents → overreact → ?
They’re certainly not adhering to their own commitment to free speech or the First Amendment.”
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They → adhere → speech
Can they do that?
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they → do → that
The university I mean.
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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.
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videos → have → obscenity
“Obscenity” for these purposes is material that meets the three-part Miller test, which may be summarized like this:
Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);
Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and
Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.
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matter → meet → value
I prefer Justice Potter Stewart’s summary “I know it when I see it,” but opinions vary.
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opinions → prefer → it
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.
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they → apply → standard
You may think it should qualify as obscene under this test, but there’s functionally no chance that it will be prosecuted.
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it → think → test
But that’s about the government wearing its “sovereign” hat — acting as Chancellor Joe Gow’s civic authority with the power to prosecute.
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government → ’ → power
What about the government wearing its “employer” hat — can it fire him from his government job?
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it → wear → job
Here’s how we answer the question.
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we → ’ → question
First, we ask if Mr. Gow was speaking as a private citizen or in his capacity as a government employee.
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Gow → ask → employee
If he was speaking on the job, the First Amendment doesn’t protect him from being fired.
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Amendment → speak → him
That allows the government to fire you for being insubordinate, bad at your job, and impolitic at representing the government.
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government → allow → 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.
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job → ’ → teaching
Here, there’s no indication that performing in pornographic videos was within the scope of Mr. Gow’s job as Chancellor.
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performing → ’ → Chancellor
It’s not UNLV after all.2
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It → ’ → ?
Second, we ask if Mr. Gow was expressing himself on a matter of public concern.
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Gow → ask → 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.
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office → keep → ass
You could certainly make an argument that the public is interested in pornography, given its vigorous consumption of it.
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public → make → it
But it appears to me that the Supreme Court has already foreclosed that argument.
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Court → appear → 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.
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Amendment → hold → 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.
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videos → include → issue
I don’t know, like, it’s a satire of Wisconsin’s redistricting crisis with the title “either way voters get screwed.”
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voters → know → title
Third, if Mr. Gow’s claim survived, we ask whether the government did something to retaliate against the protected speech.
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government → survive → speech
Here that’s easy — they fired him and apparently told him they were firing him over the porn videos.
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they → ’ → videos
That’s clear retaliation.
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That → ’ → ?
Sometimes it’s not so simple if the retaliation is some minor discipline or counseling or an investigation.
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retaliation → ’ → ?
…and 15 more, not listed.
The Aporia
