Firing for "Rot in Hell Charlie Kirk" Post Upheld

In Johnston v. County of Gila (D. Ariz.), Judge Dominic Lanza rejected, on procedural grounds, plaintiff's challenge to a Gila County Personnel Commission decision upholding his firing from his job as "a legal secretary with the Gila County Attorney's Office"; here's the factual and legal analysis from the Commission decision (see exhibit 10):

On September 10, 2025, at around 2:00 p.m. Arizona Time Appellant posted "Rot in Hell Charlie Kirk" on/via his Facebook account.

Multiple GCAO employees, including some who are not Appellant's Facebook friends and/or who do not personally use Facebook, saw and otherwise learned of Appellant's post on September 10 and in the days that followed. Multiple GCAO employees discussed the post with each other and complained about the post to GCAO's Chief Deputy Joseph Collins as well as to Gila County Attorney Bradley Beauchamp.

Beauchamp believed that the post appeared to condone murder based on the victim's political viewpoints and statements and became concerned that this post and perception would reflect on GCAO in the public's eyes and thereby undermine the public's trust in GCAO's official duty to prosecute homicides without bias and without regard to a victim's views, statements, or affiliations. Several other GCAO employees shared the perception that Appellant's post appeared to condone the murder of someone based on their statements and views and shared the concern that this would reflect poorly on GCAO and undermine public trust.

Multiple GCAO employees reported being offended or otherwise bothered by the post. Appellant's post resulted in immediate meetings and changes to office practices due to concerns of disharmony within the office and the effects it would have on GCAO operations.

Appellant's Facebook account was reportedly set to 'private' which Appellant believed would limit his post to only being seen by his existing Facebook friends and that all his friends had to do if they were upset by his post was 'unfollow' him. Notwithstanding Appellant's Facebook account setting and his belief as to the setting's effect on post-exposures, his post apparently reached multiple witnesses within a short timeframe, including some who either were no t his Facebook friends or did not use Facebook at all….

The evidence introduced in this matter demonstrated that Respondent's decision to dismiss Appellant for Appellant's social media post "Rot in Hell Charlie Kirk" was based on the following:

1. Appellant's post occurred minutes after Kirk was publicly reported as dead following him being shot at a college campus during a public speech.
2. Appellant's post occurred during Appellant's work hours and while Appellant was in the office.
3. The public perception that Kirk was killed due to his political views, beliefs, statements, and/or affiliation(s).
4. Respondent's perception that Appellant's post condoned killing someone based on their views, beliefs, statements, and/or affiliation(s).
5. The public legal role that Respondent and his office fill in deciding whether and how to prosecute homicides throughout Gila County.
6. Respondent's concern that members of the public would likewise perceive Appellant's post as condoning killing someone based on their views, beliefs, statements, and/or affiliation(s).
7. Respondent's concern that this would damage the public's trust in Respondent and his office's ability to fairly and impartially decide whether and how to prosecute homicides regardless of a victim's views, beliefs, statements, and/or affiliation(s).
8. Appellant's public role in Respondent's office as being the first person many see upon entering Respondent's office.
9. Testimony from multiple witnesses attesting to similarly perceiving Appellant's post as condoning killing someone based on their views, beliefs, statements, and/or affiliation(s).
10. Respondent's concern that Appellant's post would similarly cause disharmony among staff and disrupt the operations of his office.
11. Testimony from multiple witnesses attesting to staff disharmony and disruptions occurring almost immediately after, and in the days following, Appellant's post—including staff complaints, colleagues being bothered and offended by Appellant's post, an office meeting, and an immediate change to office standards regarding political debate to avoid further disharmony and staff complaints.
12. Appellant ultimately decided to dismiss Appellant five days after the post was made.

Accordingly, Respondent's reason for dismissing Appellant did not appear to have been decided at random or on a whim, to be founded in prejudice, or to lack a reasonable basis.

With regard to Appellant's assertions that his dismissal violated his rights under the 1st Amendment to the United States Constitution, the evidence presented in this hearing did not support Appellant's claim, particularly in light of the close direct nexus between the central mission of Respondent's office—the fair and impartial prosecution of all criminal matters without regard to a crime victim's personal views, opinions, or affiliations and Appellant's post about a public homicide victim, Appellant's role in the office and exposure to members of the public, Respondent's concerns regarding inferences the public would make based on Appellant's post, the fact that almost immediately multiple parties complained regarding Appellant's post and their perception that it condoned murder and reflected poorly on the office, the immediate disruption it caused in Appellant's office, and the immediate and widespread knowledge of Appellant's post.

Here's a slightly adapted version of my analysis of the general First Amendment issue that I posted right after the Kirk shooting:

In such cases the government is acting as employer, and in that capacity it has more latitude to discipline and fire employees than it does to imprison or fine them. Generally speaking, the government may discipline an employee based on the employee's speech if

1. the speech is said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), or
2. the speech is not on a matter of public concern, Connick v. Myers (1983), or
3. the damage caused by the speech to the efficiency of the government agency's operation outweighs the value of the speech to the employee and the public, Pickering v. Bd. of Ed. (1968).

There is no categorical exception even as to government employment for speech that praises violence; indeed, Rankin v. McPherson (1987) (which Johnston cited in his arguments to the Commission) held that the First Amendment was violated by the firing of a law enforcement clerical employee for saying, after President Reagan was wounded, "if they go for him again, I hope they get him":

[The statement] plainly dealt with a matter of public concern. The statement was made in the course of a conversation addressing the policies of the President's administration. It came on the heels of a news bulletin regarding what is certainly a matter of heightened public attention: an attempt on the life of the President. While a statement that amounted to a threat to kill the President would not be protected by the First Amendment, the District Court concluded, and we agree, that McPherson's statement did not amount to a [punishable] threat … or, indeed, that could properly be criminalized at all.

The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern. "[D]ebate on public issues should be uninhibited, robust, and wide-open, and … may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." "Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected."

But Rankin stressed that the speech actually didn't create much upset or disruption for the office, whether because of an internal reaction or an external one. To quote the concurrence by Justice Powell,

There is no dispute that McPherson's comment was made during a private conversation with a co-worker who happened also to be her boyfriend. She had no intention or expectation that it would be overheard or acted on by others…. The risk that a single, offhand comment directed to only one other worker will lower morale, disrupt the work force, or otherwise undermine the mission of the office borders on the fanciful.

The majority likewise reasoned,

Interference with work, personnel relationships, or the speaker's job performance can detract from the public employer's function; avoiding such interference can be a strong state interest…. [But w]hile McPherson's statement was made at the workplace, there is no evidence that it interfered with the efficient functioning of the office…. Constable Rankin testified that the possibility of interference with the functions of the Constable's office had not been a consideration in his discharge of respondent and that he did not even inquire whether the remark had disrupted the work of the office.

Nor was there any danger that McPherson had discredited the office by making her statement in public. McPherson's speech took place in an area to which there was ordinarily no public access; her remark was evidently made in a private conversation with another employee. There is no suggestion that any member of the general public was present or heard McPherson's statement.

Nor is there any evidence that employees other than [her boyfriend] who worked in the room even heard the remark. Not only was McPherson's discharge unrelated to the functioning of the office, it was not based on any assessment by the Constable that the remark demonstrated a character trait that made respondent unfit to perform her work.

Here, the Personnel Commission found that there had been disruption, based on "Testimony from multiple witnesses attesting to staff disharmony and disruptions occurring almost immediately after, and in the days following, Appellant's post—including staff complaints, colleagues being bothered and offended by Appellant's post, an office meeting, and an immediate change to office standards regarding political debate to avoid further disharmony and staff complaints." And the post, unlike McPherson's statement, was made to a considerable number of people; even if it was a Facebook page set to private, a lot more people were aware of it.

If one looks at later lower court cases, they have routinely turned on whether the speech created enough controversy, with the public or with coworkers. 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 differ for public university professors, though 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. 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. (That seems to be part of the county attorney's justification here.) 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.

And while some have tried to distinguish, say, racist speech from other speech on the grounds that it shows the speaker is likely to unfairly treat clients or coworkers who belong the groups he condemns, one can say that about many kinds of speech: Speech praising the killing of people who publicly advocate for certain views may be said to show the speaker is likely to unfairly treat members of the groups. (Such unfair treatment may often be illegal, especially by public employees, but in any event will often be unethical and contrary to the employer's mission.) As a result, the magnitude of the public reaction, which is often measurable rather than speculative, ends up playing a major role.

This creates an unfortunate incentive: Like any heckler's-veto-like rule, it rewards would-be cancellers, whether among the public or just among coworkers, if they only speak out often enough and with enough outrage. But rightly or wrongly, that is how these cases generally shape up.

Ashley E. Caballero-Daltrey, Derek Ryan Graffious, and Michele Molinario (Jones Skelton & Hochuli PLC) represent the County.