May A Public University Fire Its Chancellor For Appearing In Porn Videos On His Own Time?

First Amendment rights are constantly misunderstood by most Americans enjoying their protection. Were it not so, what would I have to gripe about?1 One of the most misunderstood questions in First Amendment law is whether government employers may fire government employees for their speech. As I explained at the beginning of this year, answering that question requires a complicated analysis of whether the speech is part of the employee's job, whether it's on a matter of public interest, and whether the government employer's interest in preventing disruption outweighs the employee's interest in speaking. Since that was my first post of 2023, it seems only fitting to return to the subject for the last post. But where to find a good example of the dilemma for analysis?

My friend and classmate Mitch Epner, who is always worth reading, came to the rescue with a piquant story out of Wisconsin. Joe Gow, the Chancellor of the University of Wisconsin-La Crosse, has announced that he was fired for appearing in porn videos:

Gow told The Associated Press in a phone interview Thursday morning that regents had discovered that he and his wife, former UW-La Crosse professor Carmen Wilson, had been producing and appearing in pornographic videos.

He maintained that he never mentioned UW-La Crosse or his role at the university in any of the videos and the firing violated his free speech rights.

“My wife and I live in a country where we have a First Amendment,” he said. “We’re dealing with consensual adult sexuality. The regents are overreacting. They’re certainly not adhering to their own commitment to free speech or the First Amendment.”

So. Can they do that? The university I mean. Clearly Mr. Gow and his wife have a First Amendment right to produce, appear in, and distribute pornographic videos, so long as the videos do not stray into the very narrow and very rarely prosecuted First Amendment exception for obscenity. “Obscenity” for these purposes is material that meets the three-part Miller test, which may be summarized like this:

1. Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);

2. Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in

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