Yet Again with the Heckler’s Veto in a Government Employee Speech Case

From Judge Glen Davidson’s opinion Wednesday in Stokes v. Boyce (N.D. Miss.):

On September 10, 2025, well-known podcaster Charlie Kirk was shot and killed during an event at a university in Utah. That same evening, the Plaintiff, who worked at the University of Mississippi as the Executive Assistant to the Vice Chancellor for Development, reposted on her personal social media account a statement regarding Kirk.

For decades, yt supremacist and reimagined Klan members like Kirk have wreaked havoc on our communities, condemning children and the populace at large to mass death for the sake of keeping their automatic guns. They have willingly advocated to condemn children and adult survivors of SA to forced pregnancy and childbirth. They have smiled while stating the reasons people who can birth children shouldn’t be allowed life-saving medical care when miscarrying. They have incited and clapped for the brutalizing of Black and Brown bodies. So no, I have no prayers to offer Kirk or respectable statements against violence.

The statement garnered a great deal of attention and was widely commented upon and negatively received. The Plaintiff removed the statement from her account four and one-half hours later and posted an apology….

Stokes was fired, and the court concluded the firing likely didn’t violate the First Amendment:

The Pickering v. Bd. of Ed. balancing test [applicable to government employers’ decisions to fire or discipline employees based on their speech -EV] requires courts to weigh both the “the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions.” The Supreme Court has further explained that “[a] government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.”

In conducting this balancing test, the Court considers “whether the speech was likely to generate controversy and disruption, impede the defendant’s general performance and operation, and affect working relationships necessary to the defendant’s proper functioning.” The Supreme Court has also previously recognized as pertinent considerations “whether the statement … impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” Ultimately, the Court must weigh the Plaintiff’s rights to speak on matters of public concern versus “the effective functioning of the public employer’s enterprise.”

Crucially, the Supreme Court has explained it is not necessary “for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.” Rather, “courts have consistently given substantial weight to government employers’ reasonable predictions of disruption, even when the speech involved is on a matter of public concern.” …

The Plaintiff’s post was shared broadly on social media and eventually captured the public’s attention; indeed, the reaction to the Plaintiff’s social media post, according to her own testimony, was swift and substantial. Both personally and via her University email account and voicemail, the Plaintiff received a significant amount of hate mail, phone calls, and emails, many of which were threatening in nature. The Plaintiff herself testified to the level of disruption the post caused her, both personally and to her ability to conduct her job duties at the University. The Defendant presented evidence showing that the disruption and threat of further disruption ultimately caused him to conclude that the Plaintiff’s “departure from the University was needed to resolve the disruption to the University’s operations.” Boyce further believed the University “needed to act quickly” to end the disruption to the University’s operations. The disruption included the cancelling of a student phone bank event, disruption to the University’s social media presence, the inability of the Development Office (where the Plaintiff was employed) to focus on its work rather than monitoring the response to the Plaintiffs post and managing the University’s response, and the necessity for the University Police Department to patrol the area around the Development Office in light of the Plaintiff’s post and given employees’ fear for their personal safety.

In addition to the Defendant Boyce’s statements regarding the disruption the Plaintiff’s post caused the University, the University’s Vice Chancellor for Marketing and Communications, Lisa Stone, provided evidence that the impact upon the Development Office’s operations were significant and were continuing throughout the morning of September 11, 2025, without any end in sight. Further, the Plaintiff’s direct supervisor at the University, Charlotte Parks (the University’s Vice Chancellor for Development), detailed several of the ways the Plaintiff’s post disrupted the Development Office, including disruption to other employees in the Office and the necessity for a former University employee to be called in to help perform the Plaintiff’s work duties given the inability of the Plaintiff to report to work and perform her work duties.

The Court finds this evidence demonstrates the Plaintiff’s speech disrupted the efficiency of the services the University performs through its employees. Further, it is clear to the Court the Plaintiff’s post was “likely to generate controversy and disruption, impede the defendant’s general performance and operation, and affect working relationships necessary to the defendant’s proper functioning;” it is further clear to the Court the Plaintiff’s post “impeded the performance of her duties” and “interfered with the regular operation of the enterprise.” …

Here’s part of what I wrote about the issue shortly after Kirk’s murder:

[L]ower court cases [dealing with government employee speech] … have routinely turned on whether the speech created enough public controversy. When the government is administering the criminal law or civil liability, such a “heckler’s veto” is generally not allowed: The government generally can’t shut down a speaker, for instance, because his listeners are getting offended or even threatening violence because they’re offended. But in the employment context, the Pickering balance often allows government to fire employees because their speech sufficiently offends coworkers or members of the public. (The analysis may differ for public university professors, though it’s not clear how much; see this post for more.)

This conclusion by lower courts applying Pickering might, I think, stem from the judgment that employees are hired to do a particular job cost-effectively for the government: If their speech so offends others (especially clients or coworkers) that keeping the employees on means more cost for the government than benefit, the government needn’t continue to pay them for what has proved to be a bad bargain. Maybe that’s mistaken. Maybe it’s so important to protect public debate, including on highly controversial matters, that public employers should have to keep on even the most controversial employees (see this article by Prof. Randy Kozel, which so suggests in part). But that appears to be the rule.

We see this, for instance, with statements that are allegedly racist, sexist, antigay, antitrans, etc.: If they cause enough public hostility, or seem highly likely to do so, then courts will often allow employees to be fired based on them. But if they largely pass unnoticed except by management and perhaps just a few people who file complaints, then courts are much more likely to hold that the firings may violate the First Amendment (see, e.g., this post and this post, though there are many other such examples).

There are other factors that courts consider, to be sure: For instance, if the employer can show that a person’s speech shows they are unsuited to the job, that makes it easier for the employer to prevail. But even there the magnitude of public reaction is relevant, because one common argument is that one trait required for certain employees is the ability and willingness to instill confidence and respect in coworkers and clients, rather than to produce outrage and hostility.

And while some have tried to distinguish, say, racist speech from other speech on the grounds that it shows the speaker is likely to unfairly treat clients or coworkers who belong the groups he condemns, one can say that about many kinds of speech: Speech praising the killing of people who publicly advocate for certain views may be said to show the speaker is likely to unfairly treat members of the groups. (Such unfair treatment may often be illegal, especially by public employees, but in any event will often be unethical and contrary to the employer’s mission.) As a result, the magnitude of the public reaction, which is often measurable rather than speculative, ends up playing a major role.

This creates an unfortunate incentive: Like any heckler’s-veto-like rule, it rewards would-be cancellers, if they only speak out often enough and with enough outrage. But rightly or wrongly, that is how these cases generally shape up.

Note also that, according to the Complaint, Stokes’ “tasks were administrative only:­ She managed Parks’s calendar, arranged her travel, scheduler her recurring meetings, reserved her lunches and dinners with donors or other constituents, and processed requests for tickets to events.”

J. Cal Mayo Jr. and Paul Bowie Watkins Jr. (Mayo Mallette PLLC) represent the defendant.