Lawsplainer: Can A State University Fire a Professor For Being An Ass On Twitter?

APRIL 18, 2018 BY KEN WHITE

Yesterday Fresno State Professor Randa Jarrar effusively celebrated the death of former First Lady Barbara Bush on Twitter. ... Lots of people are clamoring for her to be fired. ... Can she be, legally, consistent with the First Amendment? ... Maybe. ... I've written plenty of times before about the relevant legal analysis. I also discussed the lead case on the issue, and interviewed its plaintiff, in Episode Three of the "Make No Law" podcast. Here it is again, in shorter form:

Generally, the First Amendment prevents only the government, not your employer, from punishing you for your speech. But what if the government is your employer? Well, then the First Amendment offers you some protection from being punished by your employer for your speech. That protection is governed by a multi-stage analysis.

The first stage of the analysis is a question: was the public employee speaking on a matter of public interest? The quality or decency of the speech does not factor into this question. Here, Jarrar was making political comment on the death of a public figure. It's a matter of "public interest," as that is defined in the relevant cases. Had she tweeted about some purely internal matter — for instance, about how terrible her teaching assistant is — it would not have been.

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So, to justify firing someone like Professor Jarrar, a state school would need to demonstrate that her speech caused rather substantial disruption of education. Of course, Professor Jarrar may have made it easy for them:

She also provided a telephone number as if it was her contact number. But the listed number ended up going to a suicide/crisis line.

Causing your school's suicide hotline to be flooded with troll phone calls presents a very arguable case for substantial disruption, depending on the evidence. ... My assessment: Professor Jarrar was speaking as a private individual on a matter of public interest. It would be difficult for Fresno State to establish that the tweets about Barbara Bush themselves caused the sort of disruption of the school's business that so outweighs her free speech interests so that it would justify her termination. However, her tweet directing people to the school's suicide hotline presents a substantially stronger case for disciplinary action by the school. ... Note that this analysis does not address other limits on discipline against her, such as California state law and the union contract between Fresno State and its professors.
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Fresno State professor stirs outrage, calls Barbara Bush an 'amazing racist'

BY BRYANT-JON ANTEOLA

bjanteola@fresnobee.com

April 17, 2018 09:13 PM

Updated 1 hour 9 minutes ago

A Fresno State professor called former first lady Barbara Bush an “amazing racist” who raised a “war criminal,” and expressed no concern that she could be fired or reprimanded for her outspokenness on social media. ... Randa Jarrar, a professor in Fresno State’s Department of English, expressed her displeasure with the Bush family within an hour after the official announcement that Mrs. Bush died Tuesday at the age of 92.

“Barbara Bush was a generous and smart and amazing racist who, along with her husband, raised a war criminal,” Jarrar wrote on Twitter. “F--- outta here with your nice words.”
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Jarrar, who in her Twitter messages describes herself as an Arab-American and a Muslim-American woman, goes on to maintain that she is a tenured professor and makes $100,000 a year. ... “I will never be fired,” Jarrar tweeted.
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Jarrar was active on Twitter for at least five hours Tuesday, responding to some critics, retweeting others who also were critical of the Bush family and taunting those who attacked her physical appearance. ... She also provided a telephone number as if it was her contact number. But the listed number ended up going to a suicide/crisis line.
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Your freedom of speech does not entitle you to have all these people spam an actual mental health crisis line. Please stop.

Link to tweet

Bryant-Jon Anteola: 559-441-6362, @Banteola_TheBee. Staff writer Aleksandra Appleton (@aleksappleton) contributed to this report.