Dallas Employment Lawyer Blog
Just at the start of September 2025, two different Texas public universities have fired professors as a result of their speech. Texas State University explicitly fired Professor Thomas Alter because of a speech he gave at a conference of socialists, and Texas A&M University fired Professor Melissa McCoul after a student, in a controversial viral video, confronted her about what she was supposedly teaching about gender in her classroom. While both of these events just happened and it is hard to say what might eventually become of these cases, they each appear to set up a possible confrontation between the universities and their professors’ regarding free speech rights.
And there have been many such confrontations in recent years. In July and August 2025, for instance, the Third Circuit and Seventh Circuit Courts of Appeals each issued decisions addressing whether schools and universities could legally fire some employees over their (politically right wing) speech. The point of this article isn’t to dissect these any of those cases—much less the merits of the underlying speech—but to discuss what legal standard courts in the Fifth Circuit (which includes Texas) might apply should disputes over these sorts of terminations go forward.
The First Amendment prevents federal and state governments from infringing on the rights of people to engage in free speech, but that is not an absolute right. Nonetheless, public employees are protected against termination for engaging in speech protected by the First Amendment. The standard for this has been set out by the U.S. Supreme Court in a number of cases. To prove that their speech was protected, the public employee must show that they spoke (1) as a citizen (2) on a matter of public concern, and that (3) the public employer did not otherwise have an adequate justification for treating the public employee differently than any other member of the public saying the same thing.
Speech as a citizen on a matter of public concern is relatively straightforward. It is any speech by the public employee that can fairly be considered as relating to any matter of political, social, or other concern to the community, or that is otherwise a subject of general interest and of value and concern to the public. Lane v. Franks, 134 S. Ct. 2369, 2379 (2014). Speech by an employee that is solely related to some personal matter of the employee—or which concerns management policies that would only be interesting to the public by virtue of the employer’s status as an arm of the government, and nothing further—generally would not be speech as a citizen on a matter of public concern. But just because a public employee engages in speech related to their job, on the other hand, does not mean it is not protected. Quite the opposite, in fact. The Supreme Court in Lane noted that such speech holds special value precisely because those employees gained knowledge of matters of public concern through their employment.
The final requirement, “adequate justification,” is the toughest to understand. It means courts have to go through the so-called Pickering balancing test, named after the 1968 Supreme Court case Pickering v. Board of Education of Township High School District 205. Basically, courts are supposed to balance the rights of the employee, as a citizen, to comment on matters of public concern, and of the government employer to promote the efficiency of public services. As you can probably tell, there is a lot of wiggle room for subjectivity in this test.
In analyzing speech under Pickering, courts across the country have looked at factors like the impact of the speech in the workplace; the level of loyalty and public confidence expected of the employee in question; whether the speech affected the ability of the employee to do their job; the time, place, manner, and other context of the speech; the importance of the public discourse the speech was regarding; and whether the employee who made the speech should better be regarded as a member of the general public. These are all important things to consider, for sure, but still quite subjective and hard to apply consistently.
A common thing that public employers might cite to justify firing academics for speech that they don’t like is the claim that it is “disruptive.” But that is still a murky concept. The fact that speech is controversial is not enough to justify firing an employee over it. For instance, by 1966 the Supreme Court in Brown v. Louisiana made it clear that a “heckler’s veto” (the negative reaction of others to otherwise protected speech) does not justify the government in stopping that speech. And in the recent Third Circuit decision I mentioned before, Jorjani v. New Jersey Institute of Technology, the court specifically noted that negative reactions of other faculty members do not render speech unprotected because those sorts of reactions are “precisely the sort of reasoned debate that distinguishes speech from distraction.”
It remains to be seen which of these many factors the Fifth Circuit might focus on if the two professors fired this week were to file First Amendment retaliation lawsuits that make it all the way to the appellate level. A cynical mind might wonder if the Fifth Circuit, as arguably the single most conservative federal appellate court, might be particularly receptive to protecting conservative speech. Ultimately, any determination of whether a public employer can fire an employee over their speech is highly context-specific, so it is worth watching these and other similar incidents closely.
Dallas Employment Trial Lawyer Austin Campbell
If you are a public employee and believe you have been retaliated against for engaging in speech protected by the First Amendment, you should talk to an employment attorney to understand your rights.