Emory University School of Medicine Professor Anna Kenney’s repulsive Facebook posts in the wake of conservative activist Charlie Kirk’s murder appalled me. In the posts, she called him a “disgusting individual” and applauded his brutal death with “good riddance.” Such language is revolting and utterly inappropriate in any setting, especially at a university. At Emory, truth should be sought through reasoned discussion, and we should not promote silencing disagreements with bullets. However, although Kenney should be deeply ashamed of what she wrote, the University cannot legally terminate her for these words. But that appears to be exactly what Emory has done. While not confirmed by the University, it is suspected Kenney was fired because of her statements, and in that case, Emory has no grounds to take this action. Emory’s new Open Expression Policy protects her from punishment.
Emory’s Open Expression Policy provides strong protections for those who utter statements on social media and elsewhere, regardless how vulgar. When I became the president of the University Senate in April 2024, I decided my primary focus during my one-year term would be to improve Emory's Open Expression Policy. To ensure that our efforts benefited from a complete set of perspectives, we established a subcommittee that included all of Emory’s main stakeholders groups: elected leaders and representatives of the Emory Staff Council, the Oxford College and Atlanta campus Student Government Associations and the Graduate Student Government Association, an elected representative of the Emory Alumni Association, the University Senate’s president, the president-elect and three of Emory’s open expression experts. This subcommittee worked diligently for five months to produce a new Open Expression draft proposal. Following the completion of the draft, a team from the Senate subcommittee worked with Emory’s administration, including Emory’s Office of General Counsel, to produce a policy that was overwhelmingly approved by the University Senate, the administration and Emory’s president. This policy took effect in March of this year, and Emory immediately published it on its website.
The new policy makes clear that, as loathsome as Kenney’s words might be, Emory cannot fire her for posting them. In the policy, the University promises to “[respect] the protections and principles of free speech and assembly as set forth in the First Amendment.” The First Amendment generally protects statements that are vile, contain hate and cause deep emotional pain. For example, the Supreme Court issued a ruling in National Socialist Party of America v. Village of Skokie (1977) which asserts that officials could not prevent a Nazi group from marching through a neighborhood that contained the homes of many Holocaust survivors. According to this ruling’s precedent, when an employee’s speech is at issue, the individual's interest in speaking freely is at its maximum and the employer's interest is at its minimum when the employee — as with Kenney — is expressing their views on their own time in a context removed from the duties of their job.
The apparent decision to fire Kenney in the wake of her comments demonstrates how the University is now failing to uphold one of its core functions of protecting even unpopular speech. The Open Expression Policy states, “Listeners’ feelings of offense or the unpopularity of the view expressed are not sufficient bases for regulating speech … All members of the Emory Community have broad latitude to speak, write, listen, challenge, and learn, whether they are on or off campus.” These prohibitions on limiting speech are not a mere technicality — they are the foundation on which the University achieves its primary mission of seeking truth. The First Amendment makes clear that the appropriate response to misguided or odious speech is to neither censor nor punish the speaker. Instead, as Supreme Court Justice Brandeis wrote long ago in Whitney vs. California (1927), “the remedy to be applied is more speech, not enforced silence.” The amendment’s guiding principle is that when statements are subjected to the marketplace of ideas, truth will prevail and falsehood will wither. A university’s core function is to separate truth from falsehood, and it fulfills this function by testing all assertions with vigorous public debate. When a professor is terminated for speech, regardless how repulsive, the university fails this primary duty, and the power to decide which ideas survive is handed over to bureaucrats.
Although Kenney’s statements express abhorrent hatred, she should not be punished for them. Last year, Kirk explained in an X post, “Hate speech does not exist legally in America. There’s ugly speech. There’s gross speech. There’s evil speech. And ALL of it is protected by the First Amendment. Keep America Free.” Kirk got it just right. Kirk’s life’s work was to change minds not by seeking to suppress ideas with which he disagreed, but by debating the ideas publicly. Kirk would have wanted his followers to apply the same approach to those who denigrated him in death. He would not have sought punishment for those who uttered disrespectful statements. Instead, he would have urged his followers to challenge the statements and publicly reveal the statements’ vile folly. As Emory’s current Interim President Leah Ward Sears wrote in a court opinion when she was one of the esteemed justices of the Georgia Supreme Court, “[W]e must do our very best to hold fast to the values embodied by the First Amendment even in extreme and painful cases, because we cannot suspend it and remain all that we strive to be.” Emory should now respect this essential principle.
George Shepherd is a professor of law at Emory University and was President of the Emory University Senate from April 2024 until April 2025.
