Porn, Public Employees, and the First Amendment
I know a fireable offense when I see it.
The Atlantic’s Conor Friedersdorf exhorts, “Don’t Fire People for Making Pornography in Their Free Time.” Which, in the abstract, seems like a reasonable position.
The particular case upon which Friedersdorf builds the argument, though, is less than straightforward. The person in question was Joe Gow, a long-time chancellor of a state university who has spent years filming and selling pornographic videos with his now-wife. NBC has a fairly detailed accounting of the specifics for those who are interested.
Said chancellor is feigning shock at his firing and claims his First Amendment rights are being violated. Ken White rather thoroughly eviscerates that argument. The tl;dr version: While the Supreme Court has, on First Amendment grounds, made it very difficult for the state to prosecute people for filming ordinary pornography, the state has much greater leeway in firing employees for doing so.
[A] court must engage in a balancing test, weighing the employee’s interest in their free speech against the government employer’s interest in workplace harmony and effective operation. Here, the fact that Mr. Gow’s job of Chancellor requires him to represent the university as its public face, and interact with alumni, donors, and the state legislature, probably plays a determinative role. Even if a court found that Mr. Gow’s pornographic videos represented speech on a matter of public concern, it would likely find that the university could fire him on the grounds that appearing in the videos was detrimental to his public role and therefore to the university. That’s how several courts have ruled — for instance, finding that sheriff’s deputies’ appearance in pornographic videos undermined their fitness and the reputation of the department. You could say that this analysis reflects a prudish and outdated attitude towards sex and/or pornography, but the point is that it’s a very practical and plausible concern about the reaction of the people Mr. Gow has to deal with on the job.
While Friedersdorf doesn’t dispute that, he argues that doesn’t mean the university has to fire a chancellor for making and selling porn:
They should simply ignore it. (Indeed, I myself have chosen not to watch.) Sure, I can understand why various UW officials might feel frustrated with Gow or a need to feign disapproval. Public support for higher education is cratering. Factions hoping to defund state universities are eager for any pretext to portray these schools as decadent enclaves with contempt for the values of most Americans. One needn’t believe that porn is immoral or disgusting to know that millions judge it so: A 2023 Gallup poll found that 58 percent of Americans, a clear majority, believe that pornography is morally wrong, while just 39 percent believe that it is morally acceptable. If Gow was paid partly to bolster UW-La Crosse’s public standing, an argument can be made that he failed at his job.
Then again, Gallup also found that 85 percent of Americans believe that having an extramarital affair is immoral. And few people would expect the chancellor of a public university to lose his job for that transgression.
Pornhub is watched by more people than Netflix. OnlyFans, a site that is best known and substantially used for adult content, reports more than 3 million creators worldwide. Almost inevitably, in the coming years more and more people in public roles will be outed for making porn. Broadly, our digital culture gives Americans opportunities to judge and to be judged. Educators will be caught on cellphone cameras or CCTV drinking at bars, participating in street protests, being rude to waiters, entering strip clubs, leaving abortion clinics, failing to pick up after dogs, running red lights, and imperfectly disciplining their children.
To be sure, there’s a slippery slope here. But, first, Gow wasn’t inadvertently caught in a private moment; he not only deliberately filmed his sex acts but actively uploaded them to various pay-per-view porn sites and promoted them on social media. Second, while it’s doubtless true that a lot of people are hypocritical on the issue of pornography— simultaneously consuming and condemning it—it’s nonetheless the case that Gow’s actions make it harder for him to do a public-facing job and have all manner of repercussions for his university. Firing him was perfectly reasonable.
Friedersdorf’s demurral is unconvincing:
Karen Walsh, the president of the UW Board of Regents, said she was “alarmed” and “disgusted” by Gow’s actions, which were, she stated, “wholly and undeniably inconsistent with his role as chancellor.” But Gow’s actions were neither consistent nor inconsistent with being chancellor. Strictly, his actions were outside the scope of that role. Or they could be considered so, if most Americans simply chose to see the situation that way.
There are all manner of perfectly legal off-the-job activities that, if made public knowledge, impact one’s job. There would simply be no question whether, if Gow’s private hobby was, say, membership in the Ku Klux Klan, the university should terminate him. While it’s perhaps unjust, a lot of people that Gow would need to deal with as chancellor—government officials, potential donors, potential administrative and faculty hires, students, etc.—will now view him differently, making it much harder for him to lead a university.
Now, there’s the separate matter of whether the university can deny him the right to return to the faculty as a tenured professor. The Foundation for Individual Rights in Education makes a half-hearted effort to argue that they can not. White cites a different FIRE opinion noting that college faculty enjoy certain free speech rights that other government employees do not; but any argument that Gow’s pornographic films are protected by academic freedom is risible.
Given the sheer proliferation of “amateur” pornographic videos that Friedersdorf notes, it’s quite possible that our attitudes will evolve on this matter. Further, the fact the vast preponderance of said porn features women may well lead to some disparate impact rulings that change the state of play on employment law.
As it now stands, though, I would suggest that those employed in prominent leadership roles not make porn on the side to supplement their income.
Isn’t this the same sort of thing that Susannah Gibson, a Virginia Democrat, got in trouble for last year?
Just because you may have the legal right to do something doesn’t mean that it’s the intelligent thing to do. I’d fire Mr. Gow for acute stupidity, if for nothing else.@CSK: I think she did. Again, people should realize that actions have consequences….and one of the consequences may be that your activities have shut off your ability to be elected. Politicians have come back from actions that the public disapproves of, but you usually need at least some evidence of realizing that said action was stupid/unacceptable and a period of contrition before waltzing back into the game. And even so, you may never reach your full political potential (Ted Kennedy, I’m looking at you.)
When pornography violates the sensibilities of the pearl cluthers but gratuitous violence does not.
Same as it ever was.
The list of impediments to meaningful personal liberties kept in place by busy bodies and bigots is quite long.
Just a reminder that credit card companies have exercised control over the T&C of platforms that allow pornographic content. Similarly, the worries about Gow’s personal life stem from people withholding financial support from his school.
I could respect it more if those same sorts of people admitted that they have inflated egos and aren’t the least bit interested in liberty, but are entirely consumed by exerting control over others.
@Kurtz:
Gratuitous violence deeply violates my sensibilities–far more so than sex depicted between consenting adults–but when you’re a public figure, it seems the better part of wisdom not to film yourself having sex and then posting the video on the internet.
It sounds extremely tame:
While the couple used pen names (Geri and Jay Hart) for their two published books on Amazon — “Married with Benefits: Our Real-Life Adult Industry Adventures” and “Monogamy with Benefits: How Porn Enriches Our Relationship” — they weren’t very secretive about their adult entertainment endeavors.
They used their real photos on social media profiles where they went by the moniker “Sexy Happy Couple.” Their social media pages also advertised their videos as available on PornHub and OnlyFans.
On their Amazon profile, they described themselves as a married couple “who serve in executive positions at two well-known organizations in the U.S.” On Twitter, their bio read: “Passionate plant-powered couple cooking, conversing, and shooting with top adult video stars. Visit our LoyalFans and OnlyFans sites for fully explicit scenes!”
I suspect that the tameness and the fact that the couple is almost certainly turned on by doing this are the drivers here. People who find this ‘shocking’ are aware that this ain’t shocking at all. It’s like a gay man who everyone knows is gay appearing one day in 1991 with his boyfriend. The ‘shock’ is simply social awkwardness which is easily manageable and has nothing to do with real morality or ethics.
Yeah, America is outdated, backwards, and Puritanical when it comes to sex, porn, nudity etc.
I literally do not care if officials at a company or institution I’m associated with make amateur porn, don’t care if there’s nude photos of them, etc. But many Americans do care, which is dumb. Therefore, for PR reasons, officials have to cater to the fragile and immature sensibilities stupid till things change.
Friedersorf’s argument would fly if America were a better place. It’s not quite there yet.
@DK: Wasn’t it Voltaire who said “hypocrisy is the tribute Vice pays to Virtue”?
I think here the distaste is because colleges and universities are acting in loco parentis….and most parents aren’t very happy at the possibility that one or more of the individuals they have entrusted their little darlings to are making a side hustle of selling home-generated porn. I doubt CPS would sign off on a pair of parents filming and selling shots of nookie as being “hey, just their First Amendment rights, bro!”
@CSK:
I’m not arguing otherwise. If one chooses to be a politician or have a public facing job in America, then one must be cognizant of the current social order.
But I won’t ever stop arguing that those with money and a penchant for imposing on others their particular, narrow vision of morality wield far too much functional power.
I grew up around professors. I work with professors. And after decades getting to know hundreds of professors either professionally or personally or both, there is a vanishingly small number of professors I’d like to see in a porn clip.
@wr:
Same here.
Being ‘“alarmed” and “disgusted” by Gow’s actions’ does not seem a promising justification for firing him. Individuals can be alarmed and disgusted by all sorts of things, from a person’s taste in clothing to a habit of eating pudding with their fingers. Doesn’t mean they get to terminate their employment. What express or implied terms of his contract of employment is he alleged to have breached that amounted to a repudiation of it?
@wr:
I recall seeing a website called something like “Hobo Or Professor?” where people would be shown a picture of some disheveled unkempt person and have to guess if they were a hobo or college professor.
At my college, any outside employment by faculty has to be disclosed and approved ahead of time. I’m pretty sure a request to make and distribute porn would be denied. Heh.
I’m also in the camp of, “sex is a good thing, but I realize most of my fellow Americans publicly pretend it’s not for a variety of reasons.”
So, just a heavy sigh here.
All I can say is, “I don’t care what people do in their own time.” Haysoos Crispo, if they applied these standards to carpenters, we’d all run afoul of them at some point.
It was the year 2005 and I had been busted for the second time underage drinking off campus at UW-LAX when I had to meet with Joe Gow. He almost kicked me out of school and I got put on academic probation for a year. I don’t think he should have been fired for making porn on his off time, but I and a lot of my peers got punished or expelled for what we did on our off time off campus. He can’t act shocked when the code of conduct comes back to him. Also the UW board of regents are all squares.
Funny story… The reason why there is now the obligatory “video and audio will be recorded, if you do not want, disconnect” message…
Because there was a time in the early days of web collaboration that when you joined video was auto-on.
And back at Cisco, there was an employee that (unknowing that video was on), decided to pleasure himself during a long boring call.
This resulted in his termination with great prejudice. (among other things)
Realizing his future was destroyed, he contacted a lawyer and sued, as he rightfully said that it was an invasion of his privacy. Cisco paid big.
So, when you hear that message at the beginning of your conference call or zoom event, pour one out in memory of that collaboration pioneer.
@DaveD: Now that adds a little twist to the story, thank you!
@Liberal Capitalist:
Toobining: Jeffrey Toobin becomes a verb.
The Melissa Click Defense
@Grumpy Realist:
Ha. I heard your snark loud and clear. So the distaste is because parents are childish and naïve about both the the world and their “little darlings,” who are post-puberty, ~18-22 years old, and have been watching porn — and in many making cases making porn — on their phones since they were preteens.
Instead of pretending legal adult teenagers and twentysomethings don’t know what sex is, haven’t seen it, and aren’t having it — we who are raising or helping to raise young folks should cut the crap, grow up ourselves, and talk to kids about how to responsibly engage with sexuality. But Puritans gonna Puritan, to the continued disservice of American boys and girls.
I don’t think the state is allowed to remove a child from a home Because Porn. Plenty of porn performers and producers raise children. I used to hang with two of Hugh Hefner’s sons — perfectly normal, well-adjusted guys. Sharp as a tack. And SJWs to boot.
@DK: Maybe not for porn alone, but I guarantee you that if there are other possible charges to be brought, the parents creating homegrown porn to sell will fall on the negative side of the balance.