UPDATE: Judge Karen Schreier is reinstating a University of South Dakota professor placed on leave over a social media post critical of Charlie Kirk.
This comes after the professor asked for a temporary restraining order, or TRO, on Wednesday.
About 50 people sat in the Federal Court House in Sioux Falls to hear arguments over USD School of Fine Arts professor Michael Hook’s comments on a personal Facebook account.
Hook asked for a restraining order and injunction to prevent termination, following the South Dakota Board of Regents intent to fire earlier this month. Court documents show Hook asked to prevent backlash, end his administrative leave and cancel a personal conference scheduled Monday.
In an expletive-laden post, Hook called conservative commentator Charlie Kirk a “hate-spreading Nazi” and asked where Kirk’s supporters concerns were following other recent killings including school shootings and the shootings of Minnesota lawmakers. He deleted the post a few hours later and apologized for his comments on his personal Facebook account that has since been deleted.
Some state leaders, including Gov. Larry Rhoden and House Speaker and gubernatorial candidate Jon Hansen, took issue with the first post.
Hook’s attorney said Freedom of Speech isn’t a partisan issue.
“Well, I think it’s true that both political parties, political leaders, find the First Amendment inconvenient at times,” Leach said.
Jim Leach argued that Hook was commenting on a matter of public concern, Kirk’s assassination, and that he was acting as a private citizen on a personal account, not as a government employee.
Justin Bell is the attorney representing SDBOR President Tim Rave, USD President Sheila Gestring and USD College of Fine Arts Dean Bruce Kelley. Bell argued that while Kirk’s assassination was of public interest, he’s not sure if “calling him a Nazi” is protected speech, calling Hook’s post “insidious.” He also pointed out that Hook’s account disclosed his relationship as a professor at USD and the post didn’t clarify the opinions were his own.
He also said that if Hook were reinstated, it would be a disruption to USD.
In a court document, Bell argued that the Sept. 29 conference should continue because "Professor Hook has not yet been terminated" and that "a final decision will not be made until that conference is concluded."
In Judge Schreier's written opinion she granted two of Hook's three requests. The TRO ends his administrative leave and reinstates the professor until Oct. 8, the date of the preliminary injunction hearing. However, Schreier said the Sept. 29 personal conference is still allowed to continue.
Schreier wrote that "granting a TRO to enforce Hook's First Amendment rights outweighs any potential harm to defendants."
She also agreed that Hook spoke as a citizen on a matter of public concern. When free speech cases for government employees arise, court precedence looks at Pickering v. Board of Education. That case has a balancing test, primarily saying a government employee's speech can be restricted if it significantly disrupts the workplace.
Schreier said she didn't need to apply Pickering because "at this stage, defendants have failed to put on evidence that Hook's" words have led to any disruption in USD's workplace or environment.
That doesn't mean the test can't be applied in future cases; Bell would need more evidence to support the claim. At Wednesday's hearing he argued there was a potential disruption, pointing to hundreds of phone calls received from people asking for Hook's removal or negatively regarding the comment.
