Florida’s public universities have made a commitment to free speech, enacting a policy in 2022 that promises “not to stifle the dissemination of any ideas, even if other members of our community may find those ideas abhorrent.”
But now, Florida Atlantic University may be doing just that, some faculty and legal experts say, by removing three professors from the classroom for controversial comments they made related to conservative activist Charlie Kirk in the days after his Sept. 10 assassination during a student event at Utah Valley University.
In what could be a major test of free speech rights and limits in Florida, educational institutions around the state have been investigating or disciplining dozens of employees for social media posts surrounding Kirk’s death. Most have involved K-12 school teachers in districts such as Clay, Lee, Martin, Osceola and Pinellas counties, according to reports.
So far, the only public college or university that has publicly confirmed it is investigating its employees is Florida Atlantic University in Boca Raton.
Three FAU faculty members have been placed on paid leave and are under investigation, with the university confirming their names after they were publicly identified in news stories or social media posts. Art history professor Karen Leader and English professor Kate Polak criticized Kirk in their posts. College of Business eminent scholar Rebel Cole made comments about Kirk’s opponents.
The University of Miami, a private institution, also confirmed it had severed ties with a professor who reportedly shared another person’s controversial post on social media.
Legal experts say the First Amendment does not protect private-sector employees from being fired for making comments their employers don’t like. But there are broader protections for government employees, including those in school districts and public institutions such as FAU, they say.
Each case may be treated differently based on what the employee’s job duties are, whether they work in K-12 or higher education, whether the posts were made during their off-time and whether the posts appear to be celebrating violence or merely remarking on Kirk’s public comments.
A pair of landmark Supreme Court cases from 1968 and 1983 set a balancing test in the public sector, weighing the employees’ rights to express themselves against the government’s interest in an efficient, disruption-free workplace.
“How these principles play out in academia is not entirely clear,” said Lyrissa Lidsky, a constitutional law professor and eminent scholar at the University of Florida.
“The application of balancing tests can be unpredictable, especially because the government’s operational interests can be defined very broadly, and some judges are likely to give government interests great deference in the current cultural moment,” she said.
That balancing test has been made more complicated with the rise of social media, where those who don’t like someone’s comments can create a public spectacle that causes headaches for an institution, Lidsky said.
In many cases, the Kirk posts in question drew attention after conservative activists shared them online and tagged state education officials or the employee’s university or school district.
“The government employer will now just say, ‘Well you embarrassed us by your speech.’ And that shouldn’t be enough,” Lidsky said. “But at what point does enough people being against it create a disruption and how much is the speaker really responsible for all of the outcry created because people oppose what they said?”
Actions by state leaders have led to many of the disruptions, said Andrew Spar, president of the Florida Education Association, the state’s largest educator union. He noted that Attorney General James Uthmeier recently announced the launch of a portal encouraging people to report videos, images or text messages that they believe reference “violent extremism.”
“I think there is a question about whether or not people can literally go out and hunt for things that people are saying or doing, and using it against them because they want to,” Spar told the South Florida Sun Sentinel. “That’s what happened during McCarthyism. People were encouraged to tell on others.”
Union leaders say some educators are facing discipline not for condoning violence but for making comments perceived as negative about Kirk.
Educators should be allowed to discuss their views about Kirk, but with some limitations, said Bob Harris, a Tallahassee lawyer who represents several school districts in the Panhandle. He said it’s problematic to suggest in a post that the assassination was a good thing.
“There have been things said through social media … that you might say crossed the line in being potentially violative, and the reason is they contain language that is considered to be threatening or so repulsive that it impacts their ability to be a teacher,” Harris said.
“If someone is just commenting about Charlie Kirk generally and what his views are, that is probably something that is within their rights to talk about,” Harris said. “As long as it’s a matter of public concern, they can speak on it unless that speech crosses the line of being disruptive.”
But Alan Levine, a member of the Board of Governors, which oversees the State University System, said he doesn’t see a major distinction between someone who celebrated Kirk’s murder and those who harshly criticized him in the days after his death.
“Before his body is even buried, you’re making excuses for why people are angry enough to shoot him,” Levine said. “I’m sorry. That’s another way of doing the same thing.”
Florida courts have ruled in favor of the educators’ free speech rights in two recent cases. One involved a teacher in Duval County who posted a joke in 2020 about U.S. Sen. Bernie Sanders that school officials alleged condoned child abuse. Another involved a University of Central Florida professor who posted comments in 2020 that the university found racially insensitive in the wake of the George Floyd protests.
In both cases, courts ruled that the comments didn’t create any operational issues for the government agencies and ordered the educators to be reinstated with back pay.
FAU’s cases will be handled “thoughtfully and fairly,” FAU President Adam Hasner told faculty on Thursday, adding that the investigations have been initiated. He said the focus is on safety concerns.
“Unfortunately, we live now in a world where threats and even violence at places of learning come from all directions,” Hasner told the Faculty Senate Steering Committee. “And when issues arise that potentially place the safety of our campus community at risk, I am going to act swiftly and I am going to act decisively.”
Some faculty, such as Bill Trapani, a communications professor at FAU, are concerned about what they see as threats to free speech.
“As a general rule, we have enjoyed a very broad understanding of our speech rights because they are essential to a free and academically rigorous setting where we can advance knowledge and push out the boundaries of important questions,” Trapani, who chairs the FAU Faculty Senate, told the Sun Sentinel.
But leaders from the state Department of Education, which oversees K-12 schools and state colleges, and the Board of Governors, which oversees state universities, have issued memos in recent weeks warning educators that there are limits to free speech.
“Celebrating or excusing campus violence — and in this case, the murder of Charlie Kirk — by members of our university system will not be tolerated,” Ray Rodriguez, chancellor of the State University System, wrote in a Sept. 15 memo to university presidents. “Such behavior is abhorrent, has the deleterious effects of breeding further violence and undermines efforts to promote civil discourse.”
But Trapani and some other faculty members question whether his guidance, including his use of the word “abhorrent,” contradicts a civil discourse statement posted on the State University System’s website and approved by the boards of trustees and faculty senates at each university.
“Individuals are free to express any ideas and opinions they wish, even if others may disagree with them or find those ideas and opinions to be offensive or otherwise antithetical to their own worldview,” says the civil discourse statement, which the FAU Board of Trustees approved in 2022.
The statement, which is still in effect today, has served as a guiding policy when questions of free speech have arisen, faculty members say.
Faculty at FAU and other state universities say they also have protections in their collective bargaining agreements that generally allow them to freely voice their opinions on their own time.
“As long as we don’t claim to represent the university or say we’re speaking for the university, we have free speech rights. That’s in our contract,” said Robert Cassanello, president of the United Faculty of Florida, a higher education union, and an associate professor of history at the University of Central Florida.
Hasner told faculty that the university is following rules outlined in the faculty collective bargaining agreement when conducting the investigations. But he stressed that some comments should not be tolerated.
“I think that we can all agree that supporting, calling for, or celebrating violence, especially when it occurs at a place of learning, is not reflective of the values and mission of this university,” Hasner said.
Leader, one of the three FAU professors under investigation, told the Sun Sentinel on Friday that she never celebrated the killing of Kirk in her posts.
“I don’t promote or condone violence in any way, shape, or form. I don’t believe (Kirk) deserved it,” she said.
Leader shared numerous posts on X in the days after the Kirk assassination that criticized him on matters related to race, gender, guns and LGBTQ issues. In many of them, she added her own comments to others’ posts, such as “This was Charlie Kirk. Misogynist to the core” and “Charlie Kirk would happily watch gay people being stoned to death, and then find a way to monetize it.”
Supporters of Kirk have argued many of Kirk’s comments were taken out of context. For example, they say the comments about gay people being stoned were part of a debate about how literally to take passages in the Bible.
Leader told the Sun Sentinel that she hasn’t gotten any details from FAU about the investigation. But she said the university’s attempt to discipline her is a violation of free speech protections given to those in academia.
“Nobody has any right to direct us of how to use our First Amendment right in the public sphere,” she said. “This is all intended to silence us or leave us in fear.”
She said she’s made numerous comments on social media over the years giving her opinions on a variety of issues and never faced any problems.
“How do you justify saying you can talk about anything you want, but you may not talk about this person?” Leader asked. “And anything you say about this person that is anything even remotely negative will be seen as a violation of this thing that we’re telling you you’re not allowed to do that you really are allowed to do. It’s all a fabrication.”
Polak’s social media comments included replies to other people’s posts about Kirk on the social media site Threads, according to the University Press student newspaper. The newspaper published screenshots of posts, which it said Polak confirmed were authentic. One of the comments said, “Delighting in the death of someone who wished death on us isn’t sick. It’s self-defense.”
Polak, who could not be reached by the Sun Sentinel, told the University Press that her First Amendment rights were being violated.
“I think it’s a sincere problem that I could be censured for things said in my private time regarding … things that are none of my employer’s business,” Polak told the newspaper.
An X account of a third professor, Cole, voiced a different view, responding to people who made derogatory comments about Kirk.
“Be very afraid. We are going to hunt you down,” he wrote on Sept. 11. “We are going to identify you. Then we are going to make you radioactive to polite society. And we will make you both unemployed and unemployable.”
Cole declined to comment to the Sun Sentinel.
In his post, Cole rejected suggestions that he was making any threat, saying instead it was a “call to action.” One post from Sept. 17 said that FAU violated his free speech rights as well as those of Leader. He didn’t mention Polak.
“This is my leftist FAU colleague Karen Leader, who also was suspended by Florida Atlantic University for her X posts,” Cole wrote. “I find them to be disgusting. But this was her personal account with no mention of FAU. FAU has violated her 1st Amendment rights, just as it did mine.”
Across Florida, a number of K-12 educators are facing possible discipline. Spar, the Florida Education Association president, told the Sun Sentinel he’s aware of about 30 cases involving his members, most of whom are in K-12 schools.
Florida Education Commissioner Anastasios Kamoutsas recently announced he’s recommending a state commission revoke the license of a teacher in Clay County whose comments about Kirk on social media reportedly included “one less evil person on the planet” and “This may not be the obituary we were all hoping to wake up to, but this is a close second for me.”
Clay County school officials said the teacher was suspended and the district is fully cooperating with a state investigation, according to news reports.
