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Philosophy Prof, Discussion of Adult-Child Sex Bans, and the First Amendment
SUNY Fredonia philosophy professor had been barred from campus over podcast questioning illegality and immorality of adult-child sexual contact; a federal court has just allowed his First Amendment claim to go forward.
From Kershnar v. Kolison, decided Friday by Judge Lawrence Vilardo (W.D.N.Y.):
Among the many topics he studies, [SUNY Fredonia philosophy professor Stephen] Kershnar is especially interested in the "moral and legal issues implicated by sexual conduct [between] adolescents and children." His scholarship questions "whether, as a moral matter, adult-child sex is always wrong, and why we should criminalize it" even though he believes that "as a legal matter, [it] should always be criminalized." "Kershnar argues that it is important that the arguments favoring criminalization of [adult-child sex] be scrutinized so that they are defensible, [because] 'if incorrect reasons are given recognition in support of morally legitimate laws,' like those against [adult-child sex], 'then th[o]se reasons may … be used to support morally illegitimate' laws."
Kershnar elaborated on these views during two podcast appearances. In December 2020, he appeared on an episode of Unregistered—a podcast hosted by an Occidental College professor—to discuss "the traditional philosophical justifications of age[-]of[-]consent laws in the United States." During that episode, he said that "it[ i]s not obvious to [him] why" adult-child sex is always "unlawful because … humans are designed by evolution to begin reproduction below the age of 18."
A little more than a year later, on January 30, 2022, Kershnar appeared on Brain in a Vat, a podcast described as "thought experiments and conversations with philosophers." During that appearance, Kershnar said:
Imagine that an adult male wants to have sex with a 12-year-old girl. Imagine that she's a willing participant. A very standard, very widely held view is that there's something deeply wrong about this, and it's wrong independent of being criminalized. It's not obvious to me that it is in fact wrong.
Similarly, in response to a question about "whether… [,] in an attempt to find a threshold of consent," a one-year-old could ever consent to sexual activity with an adult, Kershnar said:
The notion that it's wrong even with a [one]-year-old is not quite obvious to me. There are reports in some cultures of grandmas fellating the baby boys[] to calm them down when they're colicky. Now, I don't know if this is true, but this is sort of widely reported as occurring in at least one culture[,] and … the grandmas believe that this actually works. If it were to be true … [,] it's hard to see what would be wrong with it. So … , I don't think there is a blanket period beyond which this is permissible.
After Kershnar's appearance on that podcast, the hosts said:
Kershnar believes that one of the tasks of an ethicist is to scrutinize the moral justifications for societal taboos. It is insufficient to merely assert that a kind of behavior is wrong––we ought to try to understand why it is wrong.
These "appearances went viral on Twitter," which led to SUNY ordering Kershnar not to come to campus or communicate with colleagues or students (though he continued to draw his salary, at least until the entire philosophy department was closed in 2025). The court concluded that Kershner is presumptively protected by the First Amendment from being disciplined by a public university employer for his speech:
[T]he debate about the moral and philosophical justifications for criminalizing adult-child sex is a matter of public concern…. Indeed, the defendants concede that "[d]iscuss[ing] … what the law should be" is a matter of public concern. But they say that Kershnar's statements—such as asking the podcast audience to imagine that an adult wants to have sex with a 12-year-old—went "beyond" the topic of age-of-consent laws and morality. The defendants also say that Kershnar's mention of "grandmothers fellating the baby boys" was "graphic[]" and therefore "not of value and concern to the public at the time of publication." …
[But] while Kershnar's specific examples—such as "grandmothers fellating … baby boys"—were graphic, they were made not gratuitously but precisely in the context of a broader discussion of age-of-consent laws. In fact, at least one of Kershnar's "graphic" statements was made in response to a question about finding a threshold age of consent for sexual activity between adults and children, which "is certainly a matter of public concern."
And while the government acting as employer may rebut this presumption of protection under the so-called Pickering test—which "requires the court to balance the government's interest in preventing disruption and promoting efficiency against the employee's freedom of speech"—the court concluded that there were factual disputes about the actual threat of disruption:
The defendants argue that they have met their burden of showing that they banned Kershnar from entering the SUNY Fredonia campus or communicating with the SUNY Fredonia community because they reasonably predicted that those activities would cause danger and disruption. In making that prediction, the defendants say, they reasonably relied on Chief Isaacson's four assessments issued between February 2, 2022—three days after Kershnar's comments went viral—and October 31, 2022. Those assessments, which "remained unchanged" until Chief Isaacson's retirement, were based primarily on threats circling the dark web, threatening social media comments, emails "expressing disgust and revulsion at Kershnar's messages," the subject matter of the allegations against Kershnar, and the typical behavior of attackers. Based on all that, the defendants say, their decision to ban Kershnar from campus and issue a no-contact order was "eminently reasonable."
But as Kershnar observes, the defendants have repeatedly failed to identify credible threats against Kershnar or to provide any evidence that the risk of danger continued after February 2022. According to Kershnar, law enforcement—namely the Fredonia Village Police Department, the New York State Police, and the Chautauqua County Sheriff's Office—"had no records concerning Kershnar or communications with SUNY Fredonia" from January 2022 until either January or April 2023.
Moreover, Chief Isaacson's assessments cited violent comments directed at Kershnar, but his conclusions were based on nothing more than a theory: that because SUNY Fredonia cannot monitor the "aggrieved" off-campus population's pre-attack behaviors, eliminating the reasons for the violent comments is the "first step" toward stopping "the pathway of violence." And Charles Holder, the Interim Chief of Police after Isaacson retired, did not make his own findings about whether the threat of violence continued after he began his service but instead based his opinion on Isaacson's prior findings and Holder's "experience in law enforcement."
{The defendants also argue that "[i]n addition to the threats of violence[,] … the SUNY Fredonia campus was predictably disrupted in other ways by [Kershnar]'s speech[: a]lumni threatened to pull and withhold financial support, students threatened to disenroll, and parents threatened to disallow their children from attending SUNY Fredonia."
But the letters Kershnar received about the decision to ban him from campus and from contact with the SUNY Fredonia community mention preventing danger as their only justification.. Moreover, Chief Isaacson based his recommendations only "on preserving the physical safety of the SUNY Fredonia campus and Kershnar himself."
So even though "efficiency" and the "disruption of operations" may in some instances justify a public employer's interference with its employee's First Amendment rights, the Court need not entertain those justifications here. There is little—if any—evidence in the record that the defendants were concerned with disruptions unrelated to "physical safety" when they banned Kershnar from entering campus or communicating with members of the SUNY Fredonia community. And even if there were such evidence, the Court would not consider it on a motion to dismiss.}
Finally, and most important, the defendants' argument is based on facts and evidence, not on the sufficiency of Kershnar's pleading. While those facts and that evidence might ultimately support a motion for summary judgment, they are of little value on a motion to dismiss, which requires a defendant to show that the plaintiff's claims are not facially plausible. Kershnar has sufficiently alleged that the defendants did not adequately justify the adverse actions that they took against him, and the defendants' motion to dismiss therefore lacks merit.
And the court concluded that Kershnar's case can go forward even though he wasn't fired:
[E]ven though he is still being paid, the inability to communicate with students and faculty and to teach in-person classes undoubtedly are adverse actions, as those activities go to the heart of a university professor's work. To start, not being able to teach or communicate with students and colleagues almost certainly reduces a professor's job and promotion prospects, not to mention the adverse effect on professional standing and self-satisfaction.
Moreover, Kershnar says that he was asked to complete online training only so that he could review SUNY Fredonia's course offerings, establish curriculum for other professors, or teach asynchronous classes himself. So the question was never whether Kershnar took the necessary steps to put himself in a position to teach live in-person or online classes—it already had been decided that he would not be able to do that.…
This is another illustration of how modern government employee speech doctrine embodies the concept of the "heckler's veto." If one looks at government employee speech court cases over the last several decades, they have routinely turned on whether the speech created enough public controversy, or in some cases enough threats of violence.
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. (The analysis may be more speech-protective for public university professors, but it's not clear how much; see this post for more.)
This conclusion by lower courts applying Pickering might, I think, stem from the judgment that employees are hired to do a particular job cost-effectively for the government: 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. That's especially so when the potential cost involves the risk of violent attack.
Maybe that's mistaken. Maybe it's so important to protect public debate, including on highly controversial matters, that public employers should have to keep on even the most controversial employees (see this article by Prof. Randy Kozel, which so suggests in part). But that appears to be the rule.
We see this, for instance, with statements that are allegedly racist, sexist, antigay, antitrans, etc.: If they cause enough public hostility, or seem highly likely to do so, then courts will often allow employees to be fired based on them. But if they largely pass unnoticed except by management and perhaps just a few people who file complaints, then courts are much more likely to hold that the firings may violate the First Amendment (see, e.g., this post and this post, though there are many other such examples).
There are other factors that courts consider, to be sure: For instance, if the employer can show that a person's speech shows they are unsuited to the job, that makes it easier for the employer to prevail. But even there the magnitude of public reaction is relevant, because one common argument is that one trait required for certain employees is the ability and willingness to instill confidence and respect in coworkers and clients, rather than to produce outrage and hostility.
This creates an unfortunate incentive: Like any heckler's-veto-like rule, it rewards would-be cancellers, if they only speak out often enough and with enough outrage—and indeed if there are enough of them who are willing to threaten violence. Under the logic of the court's decision in Kershnar, for instance, if there had just been enough continuing threats, the employer might have been able to prevail in getting the case dismissed. But rightly or wrongly, that is how these cases generally shape up.
Adam Steinbaugh (Foundation for Individual Rights in Education) represents Kershnar.
