UW-La Crosse chancellor fired for making porn. Will his free speech argument stand?

Joe Gow, the former University of Wisconsin-La Crosse chancellor, was fired by the system’s board of regents this week for “abhorrent” behavior — making and starring in online pornography with his wife. Now, he’s arguing his termination is a violation of his right to free speech and told Wisconsin Public Radio he’s contemplating a lawsuit.

University of Minnesota Associate Professor Chris Terry — media law and First Amendment expert — told MPR News that “it’s a ‘two things can be true’ kind of argument.” As chancellor, Gow is an at-will employee whom the regents can reprimand. However, he’s also tenured, which is a far more protected position and an “almost unbreakable” First Amendment argument, according to Terry.

UW President Jay Rothman says Gow can’t use claims of free speech as a “free pass to say or do anything that he pleases,” and that his actions are causing harm to the university’s reputation. Terry says the delineation of Gow’s rights as a public figure versus a private citizen are complicated.

“But that said, if the university feels that his conduct is unbecoming as chancellor, I mean, they they do have mechanisms to rectify the situation,” Terry said. “In terms of him doing it as a private citizen, that goes back to sort of a tenure issue and whether or not he can be punished for what is going on appears to be very clearly protected speech.”

One case that may serve as a legal precedent is Miller v. California — a landmark ruling by the U.S. Supreme Court that redefined the definition of obscenity and decided that obscene materials like porn don’t get First Amendment protection. However, that case dates back to 1973, before the birth of the internet and social media.

“I think the fundamental claim will be what he challenges his removal on. Again, as chancellor, they have other mechanisms to remove him than they wouldn’t have from his tenure position as a professor,” Terry said. “But I think the stronger claim, at least as I understand it, is that there’s a process claim for removing him that the board of regents didn’t follow. And I think that will be where we see the actual challenge rather than on a sort of a First Amendment issue.”

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