By Nicholas Dobbs

Abstract

This Article examines the constitutional implications of the University of Wisconsin-La Crosse’s dismissal of Professor Joe Gow, analyzing the intersection of First Amendment protections, academic freedom, and tenure rights. Through analysis of relevant Supreme Court precedents and Wisconsin state law, it demonstrates how institutions may legally restrict certain forms of protected speech while maintaining constitutional compliance. The case problematizes the future of academic freedom and institutional governance.

I. Prelude

On December 27, 2023, the landscape of academic freedom and tenure rights faced a significant challenge when Interim Chancellor of University of Wisconsin-La Crosse, Betsy Morgan, initiated proceedings regarding Professor Joe Gow’s publication of pornographic content during his chancellorship¹. The subsequent revocation of Gow’s tenure², predicated on the assertion that his conduct was “at odds with the mission and purpose of the university³,” has sparked a contentious debate about the boundaries of protected speech in academia.

Gow’s vigorous opposition to the disciplinary charges, which he characterized as “irrelevant, inconsequential, misleading, distorted, and downright false⁴,” coupled with his assertion of First Amendment violations⁵, necessitates a thorough examination of the jurisprudential framework governing pornography and professors’ rights at public institutions.

II. Legal Framework for Protected Speech

The Supreme Court’s landmark decision in Miller v. California established that pornography generally enjoys First Amendment protection, excluding only obscene content lacking “serious literary, artistic, political, or scientific value⁶.” This protection extends broadly, with notable exceptions for obscenity⁷ and child pornography⁸. Significantly, UW-La Crosse’s legal counsel, Wade Harrison, acknowledged that “Dr. Gow’s content creation does not trigger criminal liability⁹.”

III. The University’s Position and Statutory Basis

The administration’s decision to revoke tenure stemmed from perceived conflicts with the university’s mission statement and erosion of campus trust¹⁰. University of Wisconsin statute 7.01 establishes that faculty members bear responsibility for “advancing the University’s missions of teaching, research, and public service,” emphasizing that these missions’ fulfillment requires public trust in institutional integrity¹¹. Interim Chancellor Morgan presented evidence of emotional impact on students, including requests for diploma modifications¹².

IV. Legal Analysis of Just Cause

Wisconsin state statute 36.13 mandates “just cause” for tenured faculty dismissal, requiring “due notice and hearing¹³.” The Wisconsin Supreme Court, in Safransky v. Personnel Board, defined “just cause” as demonstrating a “deficiency […] which can reasonably be said to have a tendency to impair his performance of the duties of his position or the efficiency of the group with which he works¹⁴.”

V. Constitutional Analysis

The Supreme Court’s ruling in San Diego v. Roe supports UW-La Crosse’s position, establishing that dismissal for non-public concern speech (including pornography) passes constitutional muster¹⁵. This principle derives from the Pickering test, refined in Connick v. Myers, which balances public employees’ rights to comment on matters of public concern against the state’s interest in efficient public service delivery¹⁶.

VI. Implications for Academic Freedom

While legally sound, this case raises significant questions about free speech culture in American academia. Justice Stewart’s observation in Shelton v. Tucker that freedom of speech “lies at the foundation of a free society¹⁷” underscores the tension between institutional integrity and personal expression. Though Gow retains his right to publish pornographic content, the case illustrates the complex interplay between professional obligations and personal expression in academic settings.

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