A University of South Dakota art professor can keep his job — for now, at least — despite his private Facebook post in which he called Charlie Kirk “a hate spreading Nazi” after Kirk was fatally shot while speaking at a Utah college.
A judge’s temporary restraining order keeping Phillip Michael Hook in his position while his lawsuit proceeds highlights that at least some employers may have overstepped legally in taking actions against employees for their speech about Kirk, the Trump-allied activist who has been eulogized as a free speech advocate. It also reinforces that Attorney General Pam Bondi was incorrect when she attempted to single out so-called hate speech as something that the First Amendment doesn’t protect.
Explaining her temporary ruling in Hook’s favor Wednesday, U.S. District Judge Karen Schreier reasoned that the professor’s speech “is entitled to First Amendment protection” and that the school failed to produce “any evidence of disruption” in response to Hook’s post. Such evidence wouldn’t necessarily justify his firing, but it would add a layer to the analysis that the Clinton appointee determined she didn’t have to examine here.
Hook wrote in his Sept. 10 post, which he made while at home and not working:
Okay. I don’t give a flying f*** about this Kirk person. Apparently he was a hate spreading Nazi. I wasn’t paying close enough attention to the idiotic right fringe to even know who he was. I’m sorry for his family that he was a hate spreading Nazi and got killed. I’m sure they deserved better. Maybe good people could now enter their lives. But geez, where was all this concern when the politicians in Minnesota were shot? And the school shootings? And Capitol Police? I have no thoughts or prayers for this hate spreading Nazi. A shrug, maybe.
He wrote in a follow-up post that day, while still at home and not working:
Apparently my frustration with the sudden onslaught of coverage concerning a guy shot today led to a post I mow [sic] regret posting. I’m sure many folks fully understood my premise but the simple fact that some were offended, led me to remove the post. I extend this public apology to those who were offended. Om Shanti. Republican state officials spoke out against the professor and supported his firing. The university told Hook that it intended to fire him and that he would be placed on leave in the meantime. He filed a lawsuit alleging unconstitutional retaliation against core political speech. Opposing the restraining order in a court filing ahead of Schreier’s ruling, university officials wrote that Hook’s post “angered many people, both internal and external” to the university. They also said that a restraining order is unnecessary because even if Hook succeeds in his claim, he can get reinstatement and back pay. Schreier nonetheless ordered Hook reinstated through Oct. 8, when the judge will hold a preliminary injunction hearing on the next steps in the case. For now, she wrote, the professor “has demonstrated that he is likely to succeed on the merits of his First Amendment claim.” Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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