As federal and state lawmakers call on Indiana University to fire adjunct law professor Elizabeth Booker Houston over social media posts following the death of South Carolina Sen. Lindsey Graham, a constitutional law expert says doing so would likely violate the First Amendment.
Houston, who teaches food and drug law at the IU McKinney School of Law in Indianapolis, posted an Instagram video last week showing her delivering a "congratudolences" cake to Graham's former Senate office days after his death.
Houston later posted on X addressing Graham’s sister who was appointed to temporarily fill his Senate seat.
“Congratudolences, Darline!” she wrote in her post. “Your brother is burning in hell, and now, you’re working for the devil.”
The posts led to calls for Houston's dismissal from several Republican legislators, including Lt. Gov. Micah Beckwith, who said Indiana University should lose state funding if it does not fire her.
Sen. Jim Banks and Representatives Marlin Stutzman and Erin Houchin also called on the university to remove her.
“There might be some short-term benefit in bowing to political pressure, but the First Amendment still stands,” said Steve Sanders, a constitutional law professor at the Indiana University Maurer School of Law.
Embarrassment or criticism from lawmakers is not enough to justify action against Houston, Sanders said.
“I do believe that it is very likely a court would find that any retaliation against her for the exercise of her First Amendment rights would be a violation of the First Amendment,” Sanders said.
Since IU is a public institution, he said the decision to refuse to reappoint Houston in her adjunct role would be evaluated under a balancing test, which would weigh Houston’s First Amendment rights against the university's ability to function effectively.
“Does this incident tell us that she is no longer competent to teach food and drug law on a part-time basis, remotely?” Sanders said. “I don't see a connection between those two things.”
Sanders said Houston’s conduct upsetting people is not enough to create the “substantial disruption” required to override her First Amendment freedom of speech.
Sanders pointed to a recent Ball State University settlement with a staff member who alleged she was fired over social media posts following the death of Turning Point USA founder Charlie Kirk.
“Ball State surrendered,” Sanders said. “They threw in the towel. I think they saw the handwriting on the wall that they were likely to lose, and they paid her a fairly substantial settlement. That should be a cautionary tale.”