The N.Y. Times (Nicholas Bogel-Burroughs & Dan Simmons) reports:
Here’s my sense of the First Amendment analysis:
[A.] Generally speaking, the First Amendment protects a government employee from being fired or otherwise disciplined based on his speech if
- the speech is on a matter of public concern, Connick v. Myers (1983), and
- the speech is not said by the employee as part of the employee’s job duties, Garcetti v. Ceballos (2006), and
- the damage caused by the speech to the efficiency of the government agency’s operation does not outweigh the value of the speech to the employee and the public (the so-called Pickering balance), Bd. of Ed. v. Pickering (1968).
In City of San Diego v. Roe (2004), the court held that a police officer’s distribution of porn that depicted himself was constitutionally unprotected, because it wasn’t “speech … on a matter of public concern.” Non-public-concern speech may well be protected by the First Amendment from criminal punishment or civil liability. But to be protected against government employment action, speech must be on a matter of public concern, and porn generally doesn’t qualify.
To be sure, in that case the Court noted that Roe’s porn depicted Roe in a police uniform (though not a uniform of his own department), and “The use of the uniform, the law enforcement reference in the Web site, the listing of the speaker as ‘in the field of law enforcement,’ and the debased parody of an officer performing indecent acts while in the course of official duties brought the mission of the employer and the professionalism of its officers into serious disrepute.” The Chancellor’s video didn’t seem to mention any connection to higher education. But given that the Chancellor is a relatively prominent figure at his university, and is likely to be known by sight to many people, the same concern seems to be present here.
Nor does it matter that Roe sold his videos and the Chancellor and the wife made them available for free. The First Amendment protects speech sold for money (e.g., books, newspapers, films, etc.) as much as it protects speech distributed for free. Likewise, if selling porn for money is unprotected against government employer retaliation, so is posting it on a free site.
[B.] But beyond this, the Chancellor (though not his wife) isn’t just any old employee; he is a high-level government appointee, entrusted with a prominent leadership role. He therefore can, I think, be fired even for speech on matters of public concern, if the Board disapproves of it.
The key precedents on this, I think, come from the line of cases dealing with political-affiliation-based hiring and dismissal of government employees. In these cases—Elrod v. Burns (1976), Branti v. Finkel (1980), and Rutan v. Republican Party of Illinois (1990)—the Court held that, generally speaking, such employees can’t be hired or fired because of their political party membership. But the Court recognized that there were exceptions for certain kinds of employees, including ones who work so closely with a high-level official in implementing the official’s views that ideological compatibility is a legitimate employment criterion:
Likewise, the job of a Chancellor cannot be performed effectively unless the Chancellor is an effective leader and an effective politician (of a sort). If a Chancellor says things that sufficiently alienate important constituencies—whether those things are political or pornographic—then the Board of Regents might reasonably want to select a new Chancellor.
[C.] To be sure, many universities also provide broader protection as a matter of contract, or of civil service rules. Faculty tenure contracts, for instance, might impose greater limits on faculty firing than the First Amendment does. Likewise, staff members might be protected by union contracts, other contracts, or civil service rules. The Times article notes that “In September, Mr. Gow announced that he was planning to step down from the role of chancellor and return to the faculty.” He may still have the right to do that.
But I suspect that, just as First Amendment law tends to offer less protection to high-level government officials, so university chancellor contracts likewise give the Board of Regents broader authority over chancellors than they have over faculty. Whatever rationale there might be for tenure of faculty members or for job protection for ordinary staff employees, I doubt that Board of Regents offer the same strong protection to people who have the authority and responsibility that Chancellors have.