Violence in politics is unacceptable, as it is in every other area of civil society. The murder of Charlie Kirk was a horrific tragedy. Every person of moral character grieves for his widow and family.
In his public life, Kirk was controversial, to say the least. The one thing — and maybe the only thing — about his public career that gathered broad approval was his defense of free speech. And, he certainly exercised his own freedom of speech voluminously. Indeed, a great number of his remarks belittled or condemned women, Blacks, LGBTQ+ folks, immigrants and a host of others. (See here* for a sampling.) Many of his remarks were offensive, insulting, hateful, infuriating. And they were protected by the First Amendment.
For that is what free speech means. A person is free to express views on any subject, no matter who might be offended by those views. Short of a direct threat of imminent violence aimed at specific persons, “yelling ‘fire’ in a crowded theater,” or legally defined “obscenity,” nothing one says or writes in America can be punished by the government. That’s what the First Amendment says.
If you don’t like how someone else exercises freedom of speech, you are free to exercise yours in condemnation or rebuttal or both. Both of you are protected. That’s what Kirk advocated and about the only thing for which he gained applause across a wide philosophical spectrum.
It is deeply ironic therefore that some politicians who claim to admire Kirk’s views now wish to use the powers of government to punish those who have spoken out against Kirk in the wake of his assassination. The timing of such utterances against Kirk may have been insensitive, and some of the criticisms of Kirk may have been as hateful toward him as he often was toward those he criticized. But these utterances after Kirk’s passing are as much an exercise in free speech as anything Kirk said in life, and I am quite confident that, were he here, he would agree.
Most prominently in Iowa, State Representative Taylor Collins and State Senator Lynn Evans have called on the Iowa Board of Regents to fire immediately any Regents university employee who has expressed approval of Kirk’s passing. I deplore any such approval, but I recognize that others have the right to differing views. More to the point, Kirk would, too. What Collins and Evans apparently don’t see is that by calling for the Board of Regents, a government agency, to punish people for their speech, they are betraying the one aspect of Kirk that has the highest public approval. Collins and Evans may condemn the views they find offensive, but in lashing out punitively, calling for economic retaliation against those who disagreed with Kirk, they themselves dishonor and disrespect Kirk’s most important public characteristic and contribution!
Beyond the problem of hypocrisy, any dismissal of any university employee for comments on Kirk also faces high legal and constitutional obstacles. As the U.S. Supreme Court said in Tinker v. Des Moines, the most famous case ever to come out of Iowa, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Chapter 261H of the Code of Iowa specifically addresses free speech rights at the Regents universities and the community colleges. That statute declares “[t]hat the primary function of an institution of higher education is the discovery, improvement, transmission, and dissemination of knowledge by means of research, teaching, discussion, and debate. …. [T]o fulfill this function, the institution must strive to ensure the fullest degree of intellectual freedom and free expression allowed under the First Amendment to the Constitution of the United States.” The statute continues, saying “[I]t is not the proper role of an institution of higher education to shield individuals from speech protected by the First Amendment to the Constitution of the United States, which may include ideas and opinions the individual finds unwelcome, disagreeable, or even offensive.”
Some court decisions have acknowledged some degree to which government employers can exercise some control over employee speech. However, when an instance of such speech is “commenting upon matters of public concern” (Pickering v. Bd of Education) — as any comment on the Kirk matter surely does — the employee’s speech is constitutionally protected unless it fails a balancing test under which the employee’s free speech right is outweighed by the undermining of “the efficiency of the public services [the government] performs.” An example of the latter might include an employee “personally confront[ing] his immediate supervisor.” (Givhan v. Line Consol. Sch. Dist.) It might also include speech that the employee makes “pursuant to [his] official duties”; i.e., in an official role representing the government agency (Garcetti v. Ceballos).
One case, wrongly decided by ISU President Wendy Winstersteen, serves to illustrate the relevant test. The Sept. 23 letter terminating Caitlyn Spencer, a financial aid advisor at ISU, cites the “significant disruption, harm, and adverse impact to the efficient and effective operations of the university” that Spencer’s comments on Kirk supposedly had caused or might cause. The bureaucratic boilerplate of the letter is an obvious attempt to invoke the balancing test of Pickering. However, Wintersteen’s letter offers no example, instance, or other evidence of such “disruption.” Spencer’s comments were obviously on a matter of high-profile nationwide concern. While some university personnel surely found them offensive, the comments were obviously not directed internally as criticism of any university personnel. And, they obviously had nothing to do with Spencer’s financial aid duties.
Indeed, in light of Iowa Code Chapter 261H, it would seem very difficult for any statement on a matter of public concern to disrupt the mission of the university. Chapter 261H says that the core mission of a university is to seek knowledge and that “the fullest degree of intellectual freedom and free expression” is the means to that end. The statute is clear: it is the suppression — or worse, punishment — of speech, even if offensive, that will inhibit the pursuit of knowledge. Wintersteen has it backwards. It is the punishment of speech that has the “adverse impact to the efficient and effective operations of the university.”
There are some who wish to honor Kirk’s life. They instead dishonor him by advocating the punishment of free speech. And, a university that punishes the speech of its own staff undermines its own mission. It also risks losing a wrongful termination suit. Many have been filed in Iowa and across the country. Many are likely to win.
Self-written bio: Senator Quirmbach represents Iowa Senate District 25. He is the Ranking Member of the Senate Education Committee.
