How one post on Facebook could clarify free speech rights

Last month, Suzanne Swierc was handed a manila envelope—the word “confidential” stamped across it in red ink—and told her employment with Ball State University was being terminated.

Her employee ID and office keys were taken, and within about five minutes, she was out of the job she had moved 1,000 miles for.

The reason? The one hundred and forty words she posted on her private Facebook account regarding the assassination of political activist Charlie Kirk.

Ball State President Geoffrey Mearns said in Swierc’s termination letter that the post caused an “unprecedented level of disruption” for
the university.

Swierc, formerly Ball State’s director of health promotion and advocacy, swiftly responded with a federal lawsuit against Mearns, alleging that her termination violated the First Amendment of the U.S. Constitution.

Now both sides are waiting for the court to decide whether the line drawn by Ball State on the free-speech rights of its public employees was appropriate or whether Swierc should have been granted more leeway.

While the university stands by its decision, a university spokesperson said in a written statement to The Indiana Lawyer that the school does not comment on pending litigation.

The complaint

Swierc’s complaint, filed by the American Civil Liberties Union of Indiana on Sept. 22 in Indianapolis, argues that her termination resulted directly and exclusively from the exercise of her expressive free speech rights, which she says she made “as a private citizen” and “not pursuant to any professional duties or responsibilities that she had as an employee” of the university.

“Just because you take a job with a public entity doesn’t mean you give up your right to free speech,” said Joshua Bleisch, one of Swierc’s attorneys with the ACLU.

Bleisch emphasized that the topic of Swierc’s post revolved around a larger national issue that many people were discussing online.

“You have a right to share your piece,” Bleisch said. “She’s doing it on her own time, on her own Facebook page, and it has nothing to do with her work. And so, because of that, because that’s nothing to do with her work, work should have nothing to say about what she thinks.”

On Sept. 10, hours after Kirk was fatally shot while speaking at Utah Valley University, Swierc joined the cascading number of Americans expressing their thoughts about the situation online.

Using “private” settings on her Facebook account, which supposedly allowed only her 1,000 Facebook friends to see, Swierc shared a message that she says was meant to promote a “middle ground,” something she had not seen from others at the time.

“I think I just felt compelled to put into words…that there’s different pieces to this,” Swierc said in an interview with The Lawyer. “I can disagree with Charlie Kirk and also believe that he shouldn’t have died, and that his death was tragic.”

In her post, Swierc wrote, “Charlie Kirk’s death is a reflection of the violence, fear, and hatred he sowed. It does not excuse his death, AND it’s a sad truth.”

Two days later, on Friday, Sept. 12, Swierc’s life as she knew it was upended.

Libs of TikTok, a right-leaning social media account known for reposting liberal-leaning content to garner reactions, got hold of Swierc’s post, along with a screenshot of her employee information, and spread it across its platform—gaining the attention of figures like Elon Musk and Rudy Giuliani.

Indiana Attorney General Todd Rokita also took notice of Swierc’s post, resharing it on his social media accounts, calling her statements “vile.”

Swierc began receiving calls and messages from people she didn’t know, and they hurled insults and derogatory comments at her.

“The entire thing is a very, like, surreal, out-of-body kind of experience,” Swierc said, “And one that I’ve never imagined myself being in.”

One caller, who identified themselves as a nurse, questioned Swierc’s health and mental capacity, and made clear to Swierc that they knew her full name and home address. They even suggested to Swierc that she should “get what Charlie Kirk got.”

Her office at the university, where she served as the director of health promotion and advocacy, also took hits from mass callers within the few days after her post.

Over that weekend, Swierc had been in contact with her supervisor about the messages she was receiving, and he indicated that Ball State’s employee relations wanted to schedule a meeting with her for the beginning of next week.

By the time she went into that Monday meeting, Swierc said the calls had started to settle down.

In the meeting, the head of employee relations, Melissa Rubrecht, asked about Swierc’s safety and indicated the university would be looking into whether Swierc’s speech was made in her private or employee capacity. Swierc said neither Rubrecht nor anyone else discussed in that initial meeting the possibility of her being subject to disciplinary action.

“It seemed like a very much wait-and-see kind of situation; at least, that’s how I interpreted it,” Swierc said.

Around noon on Wednesday—which was Constitution Day—her supervisor told her that she was required to attend another meeting with employee relations later that afternoon. Then, she was fired.

Weighing interests

In a public statement last month, Mearns—who himself has spent more than 15 years in the legal profession, previously serving as a federal prosecutor in the U.S. Department of Justice—noted two specific issues that prompted Swierc’s termination: disruption to the university’s mission and operations and the effect of the post on Swierc’s ability to perform her work in her leadership position.

Mearns has consistently cited Hedgepeth v. Britton, a 7th Circuit Court of Appeals case from earlier this year, as justification for his decision to fire Swierc.

“Public employees do not relinquish their First Amendment rights as a condition of entering government service, but just like private employers, the government needs to exercise control over its employees to provide public services,” said Mearns, quoting the court’s opinion in front of the Ball State University Senate earlier this month. “In other words, public employees, by necessity, accept certain limitations on their freedom.”

In Hedgepeth, the court ruled against a high school teacher who was terminated after posting inflammatory messages on her Facebook account following the killing of George Floyd. The teacher’s posts included comments and memes that had been perceived as racially insensitive and vulgar.

Even though the teacher’s account was set to private, and she did not accept friend requests from current students, her posts spread throughout the community, resulting in complaints from students, parents, staff and media coverage.

The appellate court applied the Pickering balancing test to the case, which stems from Pickering v. Board of Education (1968) and is used to weigh the interests of a public employee’s speech on matters of public concern with the interests of the government in ensuring an efficient, disruption-free workplace.

According to the Free Speech Center at Middle Tennessee State University, the test has two prongs. The first prong asks whether the public employee spoke on a matter of public concern, which is defined as a matter of larger societal significance or importance. If the employee’s expression was more of a private grievance, then the employer wins. But if the employee did speak on a matter of public concern, then the court proceeds to the balancing prong, where the interests of the employee’s speech are weighed against the interests of the government.

Through this test, the Hedgepeth court concluded that the school district’s interest in addressing actual and potential disruption outweighed the teacher’s interest in free expression. Thus, her posts did not fall under First Amendment protections.

Bleisch challenged the application of the Hedgepeth ruling in his client’s case.

“That (Hedgepeth) is really just, like, a different context,” Bliesch said, noting the teacher in that case had already been disciplined several times before the posts resulting in her termination were made, and she was a K-12 educator, not a university staff member. “It’s a totally different situation.”

Bleisch also addressed the Pickering test, saying Swierc had a strong interest in speaking on a matter of public concern compared to the government’s interest in operating its public services.

“Ball State is a university. The public services that it provides is education and research, and none of that was affected,” Bleisch said. “They said that there was a disruption, but it was all conclusory. There was no interruption to the delivery of classes for students. Suzanne does not teach. She’s not interfaced with students. So, it’s hard for me to imagine what kind of disruption may have existed that would have justified her firing.”

Zach Greenberg, faculty legal defense for the Foundation for Individual Rights and Expression, an organization promoting free speech rights, was also not satisfied with Ball State’s immediate disruption claim. He asserts that disruption must be “pretty severe interference” with the normal operations of the institution, or the regular duties of its employees.

“Universities are very large institutions. Many of them have million- and billion-dollar endowments. They have the capacity to handle multiple complaints every day about their functions,” Greenberg said. “We would not consider just critics of the university to be disruptive, per se.”

Greenberg’s concern is that if this were found to be disruptive, then that would give third parties a “tremendous leverage” over universities, similar to the heckler’s veto, which has been used to restrict speech that incited hostile reactions from those in disagreement; but that has been found to violate the First Amendment.

“That could be a really slippery slope towards punishing a wide array of offensive speech done by employees and faculty,” Greenberg said.

Although, Greenberg did think one disruption argument would be interesting for Ball State to raise: whether the university could prove that Swierc’s speech exclusively caused financial or enrollment damage. Mearns said in his termination letter to Swierc that the university had received comments from prospective students and their families, who indicated a concern about attending Ball State in response to Swierc’s post.

National fallout

Free speech limitations have been a growing concern in the country for several years, Bleisch said, but right now, especially, it seems like there’s a “pretty explicit willingness to go after and punish people for their political ideas.”

“Even if it’s just like mild disagreement, that can be enough for some people,” he added.

Ball State’s termination of Swierc is just one example among the growing list of public and private employees being punished for sharing their thoughts on Kirk’s death.

By late September, The New York Times had identified more than 145 such cases, including professors, health care workers, lawyers, journalists, restaurant workers and airline employees.

“It’s a really tough climate out there for free speech right now,” Greenberg said. “We have this right to express ourselves in ways people may not like. So, it’s really concerning that there’s been a mass campaign to get people fired from their jobs, expelled from universities or otherwise punished for speaking out.”

Swierc is also not the only Hoosier out of a job following Kirk’s death. According to several news reports and Indiana’s attorney general (who is actively calling out school personnel for their comments about Kirk), a Gibson Southern High School teacher resigned after reposting content showing a picture of Kirk with a caption stating, “HUMANITY IS NOW A BETTER PLACE.”

Rokita also reported that a Triton Central Spanish teacher was placed
on leave.

“Good,” Rokita wrote on X. “It was the correct decision from the school.”

On Sept. 13, the Indiana Department of Child Services posted that one of its workers was “no longer an employee” with the state following a comment the person made about Kirk’s death.

According to the statement, people were filing complaints about the employee through the agency’s Indiana Child Abuse & Neglect Hotline.

“Overwhelming the hotline and offices with complaints unrelated to child safety only hampers our ability to respond to emergencies,” the agency stated.

Rokita has called upon Hoosiers to submit evidence of Indiana educators or school administrators making comments that “celebrate or rationalize the assassination of Charlie Kirk,” to Indiana’s “Eyes on Education Portal,” which Rokita’s office opened last year to shed light on “objectionable” curricula, policies or programs in Indiana schools.

“These individuals must be held accountable—they have no place teaching our students,” he said.

According to Rokita, Swierc’s post was one of the portal’s first Charlie Kirk-related submissions. The portal now has over 30 Kirk-related submissions.

After learning about Swierc’s firing, Rokita praised Ball State’s decision and said the school’s legal analysis was “100%” correct and that other schools should “take notice.”

Greenberg found that “chilling.”

“Unless the university shows the kind of disruption necessary to overcome their employees’ free speech rights, the legal analysis is incorrect, and we expect lawsuits; we expect litigation over this,” Greenberg said. “It’s sad to see that a public official is essentially telling its other government entities to violate its employees’ free speech rights.”

Looking forward

Bleisch said he thinks a decision in Swierc’s case could be helpful to clarify what justifies a public employee’s termination.

“Because somebody had to answer a couple extra phone calls or field a couple extra emails because they were egged on by, you know, online social media accounts to go reach out and try to get somebody fired. Yeah, I think we’d be in a really bad place if that could justify somebody’s termination,” Bleisch said.

Although the backlash she faced was intense, Swierc said the amount of encouragement she received matched the negativity.

“The outpouring of support was, like, almost as overwhelming as the harassment…in a very, like, opposite and kind of very wonderful way,” she said.

As for now, Swierc’s on the job hunt again, following her decision to leave Texas A&M in 2023 for the job in Muncie.

“I’ve had people checking in here and there, every day, and somebody texted me Friday and asked how I was doing, and I was like, ‘Well, I was just able to open up and start editing my resume without crying,’” she said. “So, baby steps.”

Swierc’s complaint is pending in the U.S. District Court for the Southern District of Indiana and requests a trial by jury.

Mearns and his attorneys were given 60 days to respond.•