Greg Weaver: Firings after Kirk assassination could clarify limits on free speech

The fallout from the assassination of conservative activist Charlie Kirk has been swift and, for some outspoken employees, very costly.

In Indiana and across the country, people who posted callous or merely critical comments about Kirk have lost their jobs.

For workers fired by private employers, there’s often little recourse. Indiana is an employment-at-will state, and workers’ free speech rights go only about as far as their bosses allow. That’s because the First Amendment protects against government interference with free speech but not against legal private employer sanctions.

The line gets a little blurrier when the dismissal involves government workers, including public school and university employees. That’s why two Indiana cases that emerged last week could sketch in more legal guidance.

At Ball State University, Suzanne Swierc, director of Health Promotion & Advocacy, was fired after writing on Facebook that while Kirk’s killing was tragic, it was also “a reflection of the violence, fear, and hatred he sowed.”

Swierc already has filed a federal lawsuit challenging her dismissal

The Indiana Department of Child Services also announced that a staffer who posted an insensitive comment online was “no longer with the agency.”

Steve Sanders, a professor at the Indiana University Maurer School of Law, explained that when such departures are challenged in court, a legal principle known as the Pickering/Connick balancing test is used to determine if the workers were wrongly let go.

First, the court must determine if the speech was on a matter of public concern. Comments about Kirk clearly are. Next, judges weigh the employee’s free speech rights against the government’s interest in operating effectively and maintaining public trust. That analysis is fact-specific.

For instance, a prosecutor who posts inflammatory partisan attacks might legitimately lose his job, Sanders noted, because the appearance of fairness is central to the role.

But it’s harder to imagine how Swierc’s ability to perform her job at Ball State—promoting health and student wellness—would be compromised by her views on Kirk. The calculus might be different if she were a dean of students.

The facts appear more unfavorable for a DCS staff attorney who is no longer employed by the state following a social media comment about Kirk being shot in the neck.

IndyStar reported that a screenshot on social media shows former DCS employee Holly DeNeve posted this comment: “Today was a real pain in the neck (winking emoji) but I survived,” with attribution to another person. IndyStar said it was unable to confirm the screenshot’s validity.

DCS declined to say whether the employee was fired or resigned.

However, the agency said the comment was in poor taste and “does not reflect the values of this agency or the standards that have been set by this administration.”

It also noted that calls complaining about the employee’s comments were overwhelming the state’s child abuse and neglect hotline and hampering the agency’s ability to respond to emergencies.

Establishing that objectionable speech has undermined trust in an agency or made it difficult to do its job is a key element in justifying a public employee’s dismissal in the courts.

Court decisions on these employee departures could help clarify where the boundaries lie for free speech. But the larger effect is already visible: public employees are learning that comments they make on social media, even on personal accounts, can end careers.

That reality certainly will have a chilling effect that risks narrowing respectful debate on controversial topics—a foundational hallmark of the American experience.

Still, there is another lesson here.

Too many people are posting without thinking, adding to the venom of public life and destroying much-needed civility.

The law may ultimately decide whether such firings are justified. In the meantime, all of us should recognize that words carry consequences—legal
or not.

Pausing and reflecting before making a post might not only protect your job but also help lower the temperature of political debates that have grown needlessly incendiary.•

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Greg Weaver is editor of The Indiana Lawyer. Reach him at [email protected].