Judge Quickly Determines Professor’s Speech Protected by First Amendment, Regents Can’t Punish Prof for Criticizing Charlie Kirk

Back to work, Professor Hook! 

Judge Karen Schreier received USD art professor Michael Hook’s lawsuit on Tuesday and heard arguments yesterday at 2 p.m.; by suppertime, Judge Schreier had issued a temporary restraining order against the Board of Regents, USD President Sheila Gestring, and USD Dean of Fine Arts Bruce Kelley, telling them they can’t proceed with firing him for failing to please Governor Rhoden or Speaker Hansen with his lack of adulation for Charlie Kirk.

On September 10, after work, at home, Professor Hook posted to Facebook to following commentary on the murder of right-wing activist Charlie Kirk:

Three hours later, still after work, still at home, Hook removed that commentary and instead posted this apology:

South Dakota’s Republican bosses nonetheless issued fatwa against this state employee:

The Board of Regents moved with great alacrity and no posted meeting or minutes to kick Dr. Hook out of the classroom for exercising his First Amendment right to speak on matters of public concern:

Professor Hook’s first post angered powerful politicians. Speaker of the House and 2026 Governor candidate Jon Hansen immediately contacted USD President Sheila Gestring and called on her to fire Professor Hook. Hook Declaration (“Declaration”) Exhibit 4. The South Dakota Board of Regents immediately voted to terminate Professor Hook. Declaration Exhibit 5. Governor Rhoden issued a Facebook post saying he was “shaking mad.” He wrote: “The Board of Regents intends to FIRE this University of South Dakota professor, and I’m glad.” Declaration Exhibit 6. Less than 48 hours after Professor Hook’s posts, USD Dean of the College of Fine Arts Bruce Kelley, with the support of President Gestring, confirmed this in a letter he hand-delivered to Professor Hook. Declaration Exhibit 7 [Plaintiff’s Memorandum in Support of Motion for Temporary Restraining Order, Phillip Michael Hook v. Tim Rave, Sheila K. Gestring, and Bruce Kelley, Case No. 4:25-cv-04188, United States District Court of South Dakota, Southern Division, 2025.09.23, p. 5].

Dr. Hook sued, and Judge Schreier quickly affirmed that the First Amendment protects Dr. Hook’s post on Kirk:

The court concludes that Hook spoke as a citizen and his speech was on a matter of public concern. While at home and off work, Hook made the first post on his private Facebook page. Docket 4 ¶ 2; see Docket 4-2. Defendants note that Hook’s Facebook page identified himself as a professor at the University of South Dakota, Docket 9 at 2-3, but this alone does not show that a post made on his personal Facebook account is speech that arises from Hook’s duties as a professor. See McGee, 471 F.3d at 921. Hook’s first post also constitutes speech on a matter of public concern. Hook’s first post discussed the murder of a public figure—Charlie Kirk—and went on to question the difference in reactions between the murder of Kirk and other recent public murders and shootings. See Docket 4-2 (comparing the public reaction to Kirk’s murder to the public reactions to the murders of Minnesota House Speaker Melissa Hortman and her husband Mark Hortman, the attempted murders of Minnesota State Senator John Hoffman and his wife Yvette Hoffman, and the shootings at Evergreen High School in Colorado). This is speech that can “be fairly considered as relating to any matter of political, social, or other concern to the community.” Lane, 573 U.S. at 241. At the TRO hearing, defendants did not dispute Hook’s assertion that his Facebook post constituted speech on a matter of public concern. Based on the above, the court concludes that Hook’s speech is entitled to First Amendment protection [Judge Karen Schreier, Order Granting Plaintiff’s Motion for Temporary Restraining Order, Hook v Rave et al., 2025.09.24, p. 7].

The state can still punish an employee who says things that disrupt the workplace, but the Regents and USD offered no evidence that Hook’s at-home posting caused any harm to the campus:

At this stage, defendants have failed to put on evidence that Hook’s “speech had an adverse impact on the efficiency of the [University’s] operations.” Mayfield, 122 F.4th at 1053. Defendants allege that in the days following Hook’s post, “hundreds of calls and message were made to the Board of Regents and/or the University of South Dakota commenting negatively regarding the comment or calling for the removal of Professor Hook.” Docket 9 at 4. But “[m]ere allegations the speech disrupted the workplace or affected morale, without evidentiary support, are insufficient.” Lindsey, 491 F.3d at 899; see also Melton v. City of Forrest City, Ark., 147 F.4th 896, 903 (8th Cir. 2025) (finding insufficient evidence of disruption where defendants only alleged that “ ‘several’ police officers and city-council members were upset and ‘phone lines [were] jammed’ with calls from concerned citizens”). Defendants have not demonstrated that there was any disruption to on-campus activities, Hook’s teaching lessons, or the University’s operations. And without more, “such ‘vague and conclusory’ concerns . . . runs the risk of constitutionalizing a heckler’s veto.” Melton, 147 F.4th at 903 (quoting Sexton v. Martin, 210 F.3d 905, 912 (8th Cir. 2000)). Thus, because defendants have failed to demonstrate any evidence of disruption, the court need not consider the Pickering factors at this stage. See id. at 903; Mayfield, 122 F.4th at 1055 [Schreier, 2025.09.25, pp. 8–9].

Judge Schreier orders the Regents and USD to reinstate Dr. Hook as Professor of Art retroactive to September 12. The order stands until October 8, meaning the state cannot punish Dr. Hook for speaking publicly until after the Board of Regents’ next regularly scheduled meeting on October 1–2 in Spearfish, which includes a public comment period during its Thursday morning session at the Jacket Legacy Room in the Black Hills State University Student Union, convening at 9 a.m. Mountain Time.