Kansas officials’ zeal for firing state employee over post leaves agency, taxpayers in the lurch

Columnist Max Kautsch, seen during a Dec. 12, 2024, podcast recording, gives his take on the firing of a state employment over a statement on social media. (Anna Kaminski/Kansas Reflector)

For decades, the U.S. Supreme Court has made clear that the First Amendment protects public employees from facing adverse employment consequences for their private expression about matters of public concern, such as the assassination of conservative activist Charlie Kirk.

Meanwhile, it is equally well-established that such protections generally don’t apply to workers in the private sector.

But that distinction didn’t stop Senate President and Republican gubernatorial candidate Ty Masterson, along with fellow Republican gubernatorial candidate Jeff Colyer and Sen. Brad Starnes (R-Wichita), from urging the state Department of Education to fire government employee Katie Allen after she used her personal Facebook account to write the words “well deserved” in response to a post she saw in the aftermath of Kirk’s shooting on Sept. 10.

In a reality-distorting twist, it seems that these officials believe that Allen’s personal expression can be regulated not in spite of constitutional limits on regulation of such expression by government employees, but because she is a government employee.

Masterson told the over 2,500 followers of his “Official Account” on social media platform X that “anyone holding such a belief” about Kirk’s death “should not be employed by the state of Kansas and has no place making policy decisions for our children.”

“I urge Education Commissioner Dr. (Randy) Watson to immediately remove Allen from her position at the Kansas Department of Education,” he continued.

Meanwhile, Colyer wrote on X that KDSE “must fire Katie Allen for cause without delay,” and Starnes told the Kansas City Star that “students deserve better than educational ‘leaders’ who dehumanize people whom they disagree with.”

And after the education department terminated her employment, Masterson and Starnes crowed that they had “demanded her immediate firing and resignation” and that “thanks to swift action, she’s out at KSDE.”

Neither Masterson’s campaign, Colyer’s campaign, nor Starnes responded to a request for comment about whether their public statements infringed on Allen’s rights. But all three of them find themselves as potential witnesses in Allen’s lawsuit against KDSE and Watson filed on Sept. 24.

Although none of those power brokers are named defendants, the lawsuit suggests their statements loom large over Watson’s decision to end Allen’s employment in a manner she claims flies in the face of clearly established law.

 

Protected expression

The first step for Allen to prove her claims is to show that her Facebook comment was protected expression under the First Amendment.

The crucial point here is that even though Allen’s post surely offended the officials who called for her firing, offensiveness alone is not a license for government-sanctioned punishment.

This is because the U.S. Supreme Court has recognized a broad range of protected expression in this country, including hate speech and lies. Exceptions to that rule are very narrow but permit regulation for true threats and defamation.

Moreover, it is a foundational First Amendment principle that the government cannot regulate expression simply because it disagrees with that expression. But the officials’ public statements here make clear that they sought her ouster precisely because they disagreed with her point of view.

Here, Allen’s comment was an expression of opinion that did not even reach the threshold of hate speech, let alone true threats or defamation. Her expression was unquestionably protected.

 

Balancing rights

Another element Allen will have to prove to win her case is that the government’s interests as an employer did not outweigh her interest in freedom of expression.

Here, Allen’s comment was live for only a few minutes before, as she put it in the lawsuit, she “thought better of the comment” and deleted it.

Even though the comment was publicly available for only a short time, the lawsuit describes significant blowback against Allen, including that she received “actual or veiled threats” by telephone and email, such as an email titled “resign or die” in which the author threatened to “blow your f*****g brains out if you don’t resign.”

While Allen herself surely suffered, nothing in the documents filed in court so far indicate that KDSE was disrupted because of Allen’s post.

If the agency can’t show that Allen’s comments had a negative effect on its day-to-day operations or otherwise compromised the agency’s ability to perform its duties, it will likely have a difficult time proving that its interests outweighed Allen’s right to post on social media in her private capacity.

In the absence of facts to support a contention that Allen’s comments harmed the agency in a way that justified her firing, the door opens for Allen to argue the actual reason she alleges she was terminated: political pressure from public officials.

 

Motive to fire

It is here that various posts from state officials and candidates for office begin to add up to a paper trail in Allen’s favor.

Allen lost her job less than a week after posting her comment. All three of Masterson, Colyer and Starnes publicly called for Allen’s firing, and at least Masterson and Starnes took a victory lap after she lost her job.

Usually, proving elements in lawsuits requires discovery, but officials’ public statements here afford Allen a head start to argue that her firing was solely motivated by her comment.

 

Fired because of the expression

Finally, Allen must prove that the agency would not have made the same employment decision had she not posted her comment.

Again, the officials’ public statements are a treasure trove of intent. Before Kirk’s death, Allen was little-known. There is no evidence to suggest that she could have been fired for cause.

Meanwhile, these three officials’ public statements highlight the point that Allen’s comment, and likely nothing else, caused her to lose her job.

In their rush to censor private expression by public employees in the name of protecting the public, well-known public figures have done little more than bolster Allen’s case and increase the likelihood that taxpayers will ultimately have to cover attorney fees for litigation Allen should never have needed to file.

The First Amendment protects the right to speak out, even if that speech is offensive. Unless the people we elect start exercising better judgment — such as choosing not to disregard decades of precedent to advance short-term political goals — KDSE won’t be the last agency on the hook for constitutional violations.

Max Kautsch focuses his practice on First Amendment rights and open government law. Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.