UW La Crosse chancellor was fired for doing porn. Can you be fired for doing legal things?

In the United States, some constitutional free speech protections will keep you out of jail but might not keep you from being unemployed. That's the complicated dynamic at play right now in a high-profile university firing over pornography.

The University of Wisconsin Board of Regents has ousted Joe Gow as UW-La Crosse chancellor, citing pornography he appeared in. He has expressed dismay, suggesting his situation should be covered by free speech protections.

In an interview with the Milwaukee Journal Sentinel, part of the USA TODAY Network, Gow acknowledged appearing in the sex videos with his wife. Going public has in part been an effort to raise free speech issues and see how his employer would respond.

He said the board's decision to fire him after videos were found online stunned him. He will still remain as a tenured faculty member, albeit on administrative leave in the near future.

“I thought at least the board, given their staunch support of free speech, would be a little more understanding,” he said. “But clearly that's not the case.”

Gow's case, like every free speech case, is unique and likely to be a continuing controversy. Here's a look at a few key issues involved:

Is porn free speech?

Somewhat. The First Amendment protects speech about sex and sexuality, which applies to many forms of pornography, according to the University of Wisconsin-Milwaukee. However, court rulings have deemed “obscenity” as not protected within free speech.

The Supreme Court has tried to define what is obscene, Geoffrey Stone, a law professor at the University of Chicago, wrote in an American Bar Association article. In 1973, the court ruled that obscenity has no literary, artistic, political or scientific value and is produced entirely in the "prurient interest" (in other words: with the goal of turning readers on). The concept has come up regularly amid debates in recent years over whether certain books – namely those with LGBTQ+ themes – should be removed from K-12 classrooms.

In short, free speech rules don't always apply to pornography in the U.S.

Can you be fired for exercising legal free speech?

Yes. Many American workers are subject to at-will employment, or the employers’ right to fire employees for some reason, or none at all, said Charlotte Garden, a law professor who's written about legal protections for employee speech. This includes what workers said, and what they didn’t say.

People are regularly fired over controversial speech, often in educational settings. Recent high-profile examples include two employees who used pronouns in their email signatures at a Christian university in New York; a school librarian accused of "unkind pushback" against former child actor and conservative Kirk Cameron; and a first-grade teacher who spoke out against her school district's decision to ban Miley Cyrus and Dolly Parton's song "Rainbowland" at a school concert.

The case for whether speech is protected often comes down to whether that speech is a matter of public concern, Garden told USA TODAY in an interview. The adult movies Gow created with his wife very likely wouldn't meet that threshold, but the couple's books – written under pseudonyms and exploring sexuality through an intellectual lens – might count as such, Garden said. The vote to fire Gow was based on the videos.

According to Garden, any litigation in response to Gow's firing will probably come down to the language in his contract. The 2006 document says little about the termination process other than “the Chancellor may not engage in any activity that may be adverse to, or competitive or inconsistent with the interests of the University of Wisconsin System."

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What about government employees?

Lewis Maltby, president of the National Workrights Institute, said this case deals with two higher standards when it comes to free speech rights and employment.

The first: As a chancellor and faculty member at a public university, Gow is a government employee. "If Joe Gow worked for a private corporation, he’d be out of work and out of luck," said Maltby, a former professor and attorney with the American Civil Liberties Union. "There is no such thing as freedom of speech in corporate America."

Still, while private sector employees face an uneven landscape of what their employers will allow, public-sector workers often get fired or disciplined for free speech, according to Garden.

“The courts have not been very protective of public employees who are terminated for sexually explicit expression that allegedly brings disrepute upon the public employer,” said David L. Hudson Jr., a professor of law at Belmont University who specializes in First Amendment cases.

What about professors?

The other higher standard, as Maltby puts it, is Gow's status as a tenured faculty member at a postsecondary academic institution. "It's not a church, it's a university," Maltby said. "It's supposed to be an open institution where people can do and say all sorts of things without fear of punishment as long as they're not hurting anybody."

"There's an instinct here to just go, 'Oh, that was creepy – this guy's no good,'" Maltby continued. "But when you look at it more carefully, what he did really wasn't so terrible. And if that's grounds for firing even a tenured professor, what isn't?"

Maltby pointed to an incident several years ago, when Gow was publicly reprimanded and denied a pay bump after he invited an adult film actress to speak on campus. "There's a growing amount of pressure to censor schools and teachers about controversial subjects," Maltby said, "and this is unfortunately part of that."

But Gow, at least for now, was fired from his position as chancellor, not professor. Moreover, academic freedom protections, which allow scholars to explore topics, are enforced by universities, whereas free speech is enforced by courts, according to Helen Norton, a professor of constitutional law at the University of Colorado, Boulder, in a 2021 piece in The Conversation.

Universities can still decide how to respect job-related speech, Norton wrote.

Maltby said that if he were still in academia, he'd "be watching this case very carefully." If Gow's termination stands, he said, "I'd probably start censoring myself."

This article originally appeared on USA TODAY: After UW La Crosse Chancellor Joe Gow fired, is porn free speech?