Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—D.S.D.: Court grants TRO halting university action against professor who called Kirk ‘hate spreading Nazi’, (Sep 26, 2025)

By Brandi O. Brown, J.D.

He posted his comment on his personal social media account, while at home and off work, but took it down three hours later; two days later, the S.D. House Speaker (also a 2026 gubernatorial candidate) demanded that the university fire the professor.

A federal district court in South Dakota has granted a temporary restraining order against officials at the University of South Dakota, temporarily prohibiting the employer from placing an art professor on administrative leave and requiring it to reinstate the professor, who had posted a comment on social media referring to Charles Kirk as a “hate spreading Nazi.” Applying the four-factor test for considering such motions in the Eighth Circuit, the court concluded that the professor had demonstrated a “fair chance of prevailing” on the merits of his First Amendment retaliation claim, that he faces irreparable harm in the absence of temporary relief, which in turn outweighs any potential harm to the university, and that the public has a compelling interest in protecting First Amendment rights (Hook v. Rave, No. 4:25-CV-04188-KES (D.S.D. Sept. 24, 2025)).

In the late afternoon on September 10, 2025, while at home and off work, a tenured Professor of Art at the University of South Dakota, who has taught there for almost 20 years, posted this message on his private Facebook account:

“Okay. I don’t give a flying f*** about this Kirk person. Apparently he was a hate spreading Nazi. I wasn’t paying close enough attention to the idiotic right fringe to even know who he was. I’m sorry for his family that he was a hate spreading Nazi and got killed. I’m sure they deserved better. Maybe good people could now enter their lives. But geez, where was all this concern when the politicians in Minnesota were shot? And the school shootings? And Capitol Police? I have no thoughts or prayers for this hate spreading Nazi. A shrug, maybe.”

Removed quickly and apologized. Approximately three hours later, he removed that message and made a second post stating that he regretted sharing the post, citing his “frustration with the sudden onslaught of coverage concerning a guy shot today” and stating, that while he was “sure many folks fully understood [his] premise” the fact that some were offended led him to remove it. He added: “I extend this public apology to those who were offended. Om Shanti.”

House Speaker and Governor share it. Two days later, the South Dakota Speaker of the House, also a 2026 gubernatorial candidate, shared a screenshot of the professor’s first post, stating that he was “disgusted by” the “hateful and vile comments” and that he had reached out to the university president “and called on the professor to be fired.” He added: “I understand that the professor is likely to be terminated from his position. I will keep you posted on the final decision. That kind of disgusting rhetoric from an employee and representative of our university directed toward a good man’s family who was recently assassinated will not be tolerated.”

“Shaking mad” and “glad.” The current state governor also shared the post and stated that when he read it, he was “shaking mad” and that the Board of Regents “intends to FIRE” the professor, about which he was “glad.” He added that “We must not send the message to our kids that this is acceptable public discourse” but also stated that “We need more Charlie Kirks on campus and less hatred like this.”

Admin leave and meeting. Around the same time, the professor received a letter from the college dean informing him of the dean’s intent to terminate his contract and citing two policy provisions that he allegedly violated. It pointed only to his social media post as evidence. It notified the professor of a personal conference to take place on September 29, 2025, and told him he would be placed on administrative leave until a final decision on termination was made.

On September 23, 2025, the professor filed this lawsuit, seeking injunctive relief based on a claim of unconstitutional retaliation against core political speech in violation of the First Amendment. He asked for a temporary restraining order to prohibit the employer from retaliating against him in any way based on his Facebook posts, as well as from continuing his leave and holding the personal conference mentioned in the letter.

Four-factor test. Applying the four-factor test outlined in Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109 (8th Cir. 1981), the court determined that a temporary restraining order was appropriate. The factors to be considered are: (1) the likelihood of success on the merits; (2) the threat of irreparable harm to the moving party; (3) the balance of irreparable harm against any injury an injunction would inflict on other parties; and (4) the public interest.

Likelihood of success? Regarding success on the merits, the court concluded that the professor spoke as a citizen on a matter of public concern, that the university failed to put on evidence that his speech adversely impacted the efficiency of the university’s operations, and that the university actors took an adverse employment action against the professor for which his speech was the substantial or motivating factor.

He made the first post on his private Facebook page while at home and off work. The fact that his Facebook page identified him as a professor at the university, the court explained, did not “alone” demonstrate that a post made on his personal social media account is speech arising from his job duties.

The court explained that his post constituted speech on a matter of public concern—the murder of a public figure— and also “went on to question the difference in reactions between the murder of Kirk and other recent public murders and shootings.” This is speech that can “be fairly considered as relating to any matter of political, social, or other concern to the community” and, indeed, at the TRO hearing, the court noted, the university officials did not dispute the professor’s assertion in this regard.

Heckler’s veto concern. Regarding this consideration, the court explained that the university failed to put on evidence that the professor’s speech had an adverse impact on the efficiency of its operations. While the university claimed that in the days following the post, the Board of Regents received “hundreds of calls and messages” commenting negatively on the comment and/or calling for the professor’s removal, mere allegations were not sufficient and the university did not demonstrate that there was any disruption to on-campus activities, the professor’s teaching lessons, or the university’s operations.

“And without more,” the court explained, “such ‘vague and conclusory’ concerns... runs the risk of constitutionalizing a heckler’s veto.”

Also, the university took an adverse employment action against the employee and his speech was the substantial or motivating factor for that action. Within two days of his first social media post the professor was told that the employer intended to terminate his position, with only his social media post cited as evidence to support the decision. The temporal proximity, the singular reference to his post in the letter, and the university’s identification of the call from the House Speaker and others seeking the professor’s removal, led the court to conclude that he had a fair chance of prevailing on the argument that his social media post was the “substantial or motivating factor” for the employer’s decision.

As for the threat of irreparable harm in the absence of relief, in cases implicating the First Amendment, the court noted, courts usually assume irreparable injury because the loss of freedoms under the First Amendment, even for minimal time periods, undoubtedly constitutes irreparable injury.

Public’s compelling interest. Finally, the balance of hardships and public interest factors also were determined to weigh in favor of the granting of relief. While the employer argued that issuing a TRO would harm them by preventing them from holding the planned personal conference and “causing ongoing disruption within the University system,” the court easily determined that granting the TRO to enforce the professor’s First Amendment rights outweighed any potential harm to the university. Also, the public has a compelling interest in protecting its First Amendment rights, the court explained, so that factor also weighed in favor of a TRO, which the court granted.

The case is No. 4:25-CV-04188-KES.

Judge: Schreier, K.

Attorneys: James D. Leach (James D. Leach, Attorney at Law) for Phillip Michael Hook. Justin L. Bell (May, Adam, Gerdes & Thompson) for Tim Rave, Sheila K. Gestring and Bruce Kelley.

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