The Volokh Conspiracy
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Court Blocks Impending Firing of South Dakota Art Professor for Vulgar Tweet Calling Charlie Kirk a "Hate Spreading Nazi"
From today's decision by Judge Karen Schreier (D.S.D.) in Hook v. Rave:
Hook is a tenured Professor of Art at the University of South Dakota. He has taught at the University since 2006.
In the late afternoon on September 10, 2025, while at home and off work, Hook posted the following message concerning the recent shooting and killing of Charlie Kirk to his private Facebook account:
Okay. I don't give a flying f*** [the original reads "fuck" -EV] about this Kirk person. Apparently he was a hate spreading Nazi. I wasn't paying close enough attention to the idiotic right fringe to even know who he was. I'm sorry for his family that he was a hate spreading Nazi and got killed. I'm sure they deserved better. Maybe good people could now enter their lives. But geez, where was all this concern when the politicians in Minnesota were shot? And the school shootings? And Capitol Police? I have no thoughts or prayers for this hate spreading Nazi. A shrug, maybe.
Approximately three hours later, while still at home and off work, Hook removed the above message and made a second post. The second post stated:
Apparently my frustration with the sudden onslaught of coverage concerning a guy shot today led to a post I mow [sic] regret posting. I'm sure many folks fully understood my premise but the simple fact that some were offended, led me to remove the post. I extend this public apology to those who were offended. Om Shanti.
Around noon on September 12, 2025, South Dakota Speaker of the House Jon Hansen [and] {also a 2026 candidate for South Dakota Governor} shared a screenshot of Hook's first post and included the following message:
Yesterday, I was made aware of these hateful and vile comments made by a University of South Dakota professor regarding the death of Charlie Kirk and Charlie's family. I am disgusted by his remarks, and think they are unbecoming of someone who works for and represents our University. Yesterday, after seeing the post, I immediately reached out to USD President Sheila Gestring and called on the professor to be fired. I understand that the professor is likely to be terminated from his position. I will keep you posted on the final decision. That kind of disgusting rhetoric from an employee and representative of our university directed toward a good man's family who was recently assassinated will not be tolerated.
A few hours later, South Dakota Governor Larry Rhoden also shared a screenshot of Hook's first post and included the following message:
When I read this post, I was shaking mad. The Board of Regents intends to FIRE this University of South Dakota professor, and I'm glad.
This individual stands in front of South Dakota students to educate them. We must not send the message to our kids that this is acceptable public discourse.
We need more Charlie Kirks on campus and less hatred like this.
Around the same time, Hook received a letter from Kelley notifying Hook of Kelley's "intent to terminate [Hook's] contract as Professor with The University of South Dakota." The letter explained that the reason for Hook's termination was due to violations of SDBOR Policies 4.4.8 and 1.6.1. SDBOR Policy 4.4.8 provides:
Neglect of duty, misconduct, incompetence, abuse of power or other actions that manifest an unfitness to discharge the trust reposed in public university faculty members or to perform assigned duties.
SDBOR Policy 1.6.1 provides:
Faculty members are members of a learned profession. When they speak or write as private citizens on matters of public concern, they must be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As learned people and as educators, they should remember that the public may judge their profession and their institution by their utterances. Hence, they should at all times be accurate, show respect for the opinions of others and make every effort to indicate when they are not speaking for the institution.
The court concluded that Hook had a "fair chance" of prevailing on his First Amendment challenge to the impending firing, and therefore issued a temporary restraining order reinstating Hook from administrative leave (and blocking his firing for the next two weeks):
Because Hook spoke as a citizen and on a matter of public concern, [his speech protected unless] defendants have "produced evidence to indicate the speech had an adverse impact on the efficiency of the [University's] operations." If the court determines there is an adverse impact, then the court applies the balancing test laid out in Pickering v. Board of Education (1968). But "[w]here there is no evidence of disruption, resort to the Pickering factors is unnecessary because there are no government interests in efficiency to weigh against First Amendment interests."
At this stage, defendants have failed to put on evidence that Hook's "speech had an adverse impact on the efficiency of the [University's] operations." Defendants allege that in the days following Hook's post, "hundreds of calls and message were made to the Board of Regents and/or the University of South Dakota commenting negatively regarding the comment or calling for the removal of Professor Hook." But "[m]ere allegations the speech disrupted the workplace or affected morale, without evidentiary support, are insufficient." See also Melton v. City of Forrest City, Ark. (8th Cir. 2025) (finding insufficient evidence of disruption where defendants only alleged that "'several' police officers and city-council members were upset and 'phone lines [were] jammed' with calls from concerned citizens"). Defendants have not demonstrated that there was any disruption to on-campus activities, Hook's teaching lessons, or the University's operations. And without more, "such 'vague and conclusory' concerns … runs the risk of constitutionalizing a heckler's veto." Thus, because defendants have failed to demonstrate any evidence of disruption, the court need not consider the Pickering factors at this stage….
Defendants are required to temporarily set aside their determination to place Hook on administrative leave. Defendants shall reinstate Hook's position as a Professor of Art at the University of South Dakota, retroactive to September 12, 2025, to remain effective until the preliminary injunction hearing on Wednesday, October 8, 2025, at 9:00 a.m. in Sioux Falls Courtroom 2.
Here's a similar, though not identical, analysis from the Third Circuit two weeks ago in the Jason Jorjani case (though at a different stage of that lawsuit), which I blogged at the time:
New Jersey Institute of Technology declined to renew a lecturer's contract based on his private comments about race, politics, and immigration. But NJIT's regulation of speech outside the classroom and off the campus is subject to the restraints of the First Amendment, and the school documented no disruption to its educational mission….
NJIT hired Jason Jorjani in 2015 to teach philosophy, and twice renewed his contract in 2016 and 2017. During this time, Jorjani "formed the Alt Right Corporation," to "widen the message of his philosophy, which he describes as an affirmation of the Indo-European Tradition" and "the idea that European cultures are intimately related to those of Greater Iran and the Persianate World, Hindu India and the Buddhist East and are the sources the [sic] world's greatest scientific, artistic and spiritual developments." He spoke at conferences and published an essay titled "Against Perennial Philosophy" on "AltRight.com," a website he helped found. In the essay, he argued that "human racial equality" is a "left-wing myth" and that a great "Promethean" "mentality" rests on a "genetic basis" which "Asians, Arabs, Africans, and other non-Aryan peoples" lack.
The essay also argued that, through "genetic engineering" and eugenic "embryo selection," Iran could produce great philosophers by "restor[ing] the pre-Arab and pre-Mongol genetic character of the majority of the Iranian population within only one or two generations." Jorjani did not discuss these outside associations with his students or colleagues, nor did he disclose them as required by NJIT policy.
Then, in 2017, a person posing as a graduate student contacted Jorjani to discuss "how the Left persecutes and silences Right wing thought in academia." But he was working with a group called "Hope Not Hate," whose goal is to "deconstruct[ ]" individuals it deems "fascist" or "extremist." The two met at a pub where the undercover operative recorded their conversations, at first with Jorjani's consent. But later, apparently assuming the recording had stopped, Jorjani commented on matters concerning race, immigration, and politics.
The meeting became a piece published by the New York Times featuring a video excerpt from Jorjani's remarks at a conference characterizing "liberalism, democracy, and universal human rights" as "ill-conceived and bankrupt sociopolitical ideologies," before cutting to the secretly recorded portion of Jorjani's conversation where he predicts "[w]e will have a Europe, in 2050, where the banknotes have Adolf Hitler, Napoleon Bonaparte, Alexander the Great. And Hitler will be seen like that: like Napoleon, like Alexander, not like some weird monster, who is unique in his own category."
The day after the Times piece was published, NJIT's President emailed all faculty and staff, denouncing Jorjani's statements as "antithetical" to NJIT's "core values." NJIT's Dean of the College of Science and Liberal Arts sent a separate email echoing those sentiments. In the following days, NJIT received some unverified number of calls and, at most, fifty emails expressing concern about Jorjani's recorded comments and his membership on the faculty. Faculty chimed in too, highlighting the content of Jorjani's "Against Perennial Philosophy" essay.
Six days after the New York Times posted the article, NJIT sent a letter to Jorjani placing him on paid leave, explaining the article 1) "caused significant disruption at the university" that NJIT believed would "continue to expand," and 2) revealed "association with organizations" that Jorjani did not disclose on his outside activity form, despite prior direction to fully update the form the preceding Spring. The letter advised Jorjani that NJIT planned to investigate whether he had violated university policies or State ethics requirements.
Fallout continued with NJIT's Department of Biology penning a statement published in the student newspaper asserting "Jorjani's beliefs, as revealed by his remarks, cannot help but produce a discriminatory and intimidating educational environment for [NJIT's] diverse student body." The Faculty Senate followed suit, releasing an "Official Faculty Senate Statement," explaining that "NJIT is a university that embraces diversity and sees that diversity as a source of strength. The NJIT Faculty Senate finds racist pronouncements made by University Lecturer Jason Reza Jorjani to be morally repugnant. Hate and bigotry have no place on the NJIT campus." The Department of History also joined the fray, demanding Jorjani's termination and asserting his "published beliefs create a hostile learning environment for students of color in particular." …
Jorjani was eventually fired, and the District Court "conclude[d] that Jorjani's speech was not protected by the First Amendment because 'Defendants' interest in mitigating the disruption caused by Plaintiff's speech … outweighs Plaintiff's interest in its expression.' Seeing error in that conclusion, we will vacate and remand."
The Court of Appeals in Jorjani articulated the legal standard for when the government may discipline or fire employees based on their speech (even if it couldn't imprison or fine ordinary citizens for their speech), pretty much the same standard as the one the District Court just applied in Hook:
"[T]o state a First Amendment retaliation claim, a public employee plaintiff must allege that his activity is protected by the First Amendment, and that the protected activity was a substantial factor in the alleged retaliatory action." If those two requirements are satisfied, the burden shifts and the employer must show "the same action would have been taken even if the speech had not occurred."
A public employee's speech is protected if 1) "the employee spoke as a citizen," 2) his "statement involved a matter of public concern," and 3) "the government employer did not have 'an adequate justification for treating the employee differently from any other member of the general public' as a result of the statement he made." In assessing the third prong, we "balance … the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. of Ed. (1968). So "the more substantially an employee's speech involves matters of public concern, the higher the state's burden will then be to justify taking action, and vice versa." …
This standard leaves considerable room for a version of the "heckler's veto," under which someone's speech may be punished because it causes a hostile reaction by offended listeners. (So does the District Court's opinion in Hook, since it prevents a "heckler's veto" only if the hecklers are heckling only slightly, and thus in a way that doesn't cause "any disruption to on-campus activities, Hook's teaching lessons, or the University's operations.")
When the government is administering the criminal law or civil liability, such a "heckler's veto" is generally not allowed: The government generally can't shut down a speaker, for instance, because his listeners are getting offended or even threatening violence because they're offended. But in the employment context, the Pickering balance often allows government to fire employees because their speech sufficiently offends coworkers or members of the public. Perhaps this stems from the judgment that employees are hired to do a particular job cost-effectively for the government, and if their speech so offends others (especially clients or coworkers) that keeping the employees on means more cost for the government than benefit, the government needn't continue to pay them for what has proved to be a bad bargain.
Still, when it comes to public university professors, especially as to their off-the-job speech, courts have often applied the Pickering balance in a way that deliberately offers more speech protection (though perhaps not the same speech protection as ordinary citizens enjoy when it comes to the criminal law). That is what the Third Circuit did in Jorjani (though the District Court didn't see the need to formally consider any possible special rule for university professors, since its holding as to lack of disruption would prevent the firing of pretty much any government employee). To illustrate the Third Circuit's reasoning, I underline the passages supporting such extra protection, and italicize the passages that seem to leave open room for some sort of heckler's veto:
NJIT's actions do not pass the ordinary Pickering analysis on this record. The parties agree that Jorjani spoke as a private citizen on a matter of public concern. So we consider only whether the distractions NJIT identified as flowing from Jorjani's speech outweigh interest in his discussion. They do not….
Begin with interest in Jorjani's speech, which cannot "be considered in a vacuum" as "the manner, time, and place of the employee's expression are relevant." Jorjani's speech occurred entirely outside NJIT's academic environs. His theories, even if lacking in classical rigor, remain of public import. It matters not that his opinions do not enjoy majoritarian support, since "the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" Matal v. Tam (2017)….
Against that interest, we weigh NJIT's need "as an employer" to promote "the efficiency of the public services it performs." NJIT points only to the "disruption" that followed the publication of Jorjani's remarks consisting of certain students' disapproval of Jorjani's speech, disagreement among faculty, and administrators fielding complaints. We "typically consider whether the speech impairs discipline or employee harmony, has a detrimental impact on close working relationships requiring personal loyalty and confidence, impedes the performance of the speaker's duties, or interferes with the enterprise's regular operations." And we focus mostly on what happened, not what might have been, because although NJIT can act to prevent future harms, and need not "allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest," it must ground predictions in reason, not speculation. The minimal evidence of disruption that NJIT cites differs little from the ordinary operation of a public university and therefore cannot outweigh interest in Jorjani's speech.
First, there is no support for NJIT's contention that student disapproval of Jorjani's speech disrupted the administration of the university. Some students and alumni disagreed with Jorjani's views. But NJIT never identified the exact number of calls or complaints made in person or writing, nor any details about the students' concerns. And although Jorjani said that he perceived a "huge change in attitude toward [him] on the part of [his] students," NJIT points to no objective evidence that students questioned Jorjani's ability to teach, grade, or supervise his classes evenly, beyond one administrator recalling a student dropped Jorjani's class. Entirely absent is any evidence of specific student protests, upheaval, or unwillingness to abide by university policies. But "in the context of the college classroom," students have an "interest in hearing even contrarian views." Meriwether v. Hartop (6th Cir. 2021); see also Blum v. Schlegel (2d Cir. 1994) (explaining that "the efficient provision of services" by a university "actually depends, to a degree, on the dissemination in public fora of controversial speech"). NJIT's theory that student dissent rose to the level of disruption is simply speculative.
Second, the cited disputes among Jorjani and his colleagues are not disruption. NJIT cites the pointed letters denouncing Jorjani published by faculty in the pages of the student newspaper, but that is precisely the sort of reasoned debate that distinguishes speech from distraction. And there is no allegation these editorials, or Jorjani's belief they were defamatory and warranted suit, interfered with the ability of other faculty to fulfill their responsibilities in research, teaching, or shared governance, or otherwise thwarted the university's efforts to educate its students. So although challenges to "employee harmony" might pose disruption when disagreements disturb "close working relationships," that concern is irrelevant inside the university where professors serve the needs of their students, not fellow academics. {Bauer v. Sampson (9th Cir. 2001) ("[G]iven the nature of academic life, especially at the college level, it was not necessary that Bauer and the administration enjoy a close working relationship requiring trust and respect—indeed anyone who has spent time on college campuses knows that the vigorous exchange of ideas and resulting tension between an administration and its faculty is as much a part of college life as homecoming and final exams.").}
That leaves only NJIT's ordinary obligation to field calls and emails, routine administrative tasks that, conceivably, might become so overwhelming in number or nature as to disrupt. But not here. The record reveals that throughout this occurrence there were "[p]ossibly" fifty emails received about Jorjani. Calls were so few that NJIT's witness was "not sure what the number is," and only knew "by reading some emails that so-and-so called the mother, and so-and-so called, former student called, things of that nature." All a most minor uptick in communications, if at all, and one that required no additional staffing to support the single administrator who handled these inquiries.
While NJIT raises an "interest in providing a non-denigrating environment," and appeals to the notion that Jorjani's views could, theoretically, undermine the pedagogical relationship between a teacher and student, it has not pointed to anything in the record that indicates its determination was based on competence or qualifications. In essence, NJIT posits that because Jorjani offered views it disliked, the First Amendment should not apply, and it is entitled to summary judgment. We cannot agree, lest we permit "universities to discipline professors, students, and staff any time their speech might cause offense." {And this case does not implicate a university's "discretionary academic determinations" that entail the "review of [ ] intellectual work product" or "the qualifications of faculty members for promotion and tenure."}
Back in the South Dakota case, James D. Leach represents Hook.
