MUNCIE, IN — In the months after her firing from Ball State University, Suzanne Swierc’s days were “kind of a blur.”
She said she couldn’t get out of bed. She cried constantly and had to increase her dose of antidepressants. Eventually, a routine, a way of getting through the everyday, emerged.
Wake up, make a cup of coffee, tend to her 14-year-old lab-golden mix, Larson, then start the New York Times Crossword in her living room. It was here, seated on her couch, looking out a large picture window, that she’d begin every day.
What reduced her day to this was a single Facebook post. Swierc made the post while at home, off the clock, about the death of conservative activist Charlie Kirk.
Within hours, her post had been screenshot by an unknown person, combined with her Ball State University faculty photo and shared across social media.
Ball State allegedly received hundreds of calls and emails about the post. A week after Kirk was killed, Swierc was fired.
Last week, her federal First Amendment lawsuit against Ball State University President Geoffrey Mearns was settled, awarding her $225,000.
Although the settlement closed the case, it has left the central question unresolved: If a private social media post becomes disruptive only because others amplify it, can that disruption still be blamed on the employee?
About 8 p.m. Sept. 10, hours after Kirk was shot and killed, Swierc sat at home and opened Facebook. She felt compelled to respond to what she was seeing and reading online, something she said she meant as a statement of faith as much as politics.
Swierc’s post read, “Charlie Kirk’s death is a reflection of the violence, fear, and hatred he sowed. It does not excuse his death, AND it’s a sad truth.”
Swierc is a practicing Catholic who said she processes issues of social justice through her religion, according to the complaint filed by the ACLU of Indiana. Her account was private, not searchable by name and contained no information about her employer.
The lawsuit states that someone who saw the post took a screenshot, found her Ball State staff directory page and made a combined image that was then posted on X, formerly known as Twitter, tagging Ball State University.
Within minutes of the X post, emails flooded the in boxes of university departments, and within eight hours, the post had been shared more than 9,000 times.
By Sept. 16, almost a week later, about 3.2 million people had seen it.
A system of punishing public employees?
Sept. 17 marked Swierc’s termination, a five-minute meeting at 4 p.m., where she was told she could not bring a lawyer. She was not informed that the meeting would be about her termination. In a signed termination letter, Mearns listed the sole reason for her firing as the Facebook post.
She was told there was no possibility to appeal.
“It boggles my mind that (people are) like, oh, I shared it with, millions of people, and it’s like, I didn’t actually, somebody else did that, because why would I take a screenshot of my own post, splash it next to the worst head shot I’ve ever seen in my life and then slap a Libs of TikTok watermark on it?” she said. “I would not do that. Clearly, I did not do that.”
Swierc’s lawsuit argued the disruption cited by Ball State was not caused solely by her speech. It was created and amplified by third parties who took a private post and pushed it to a mass audience.
Zachary Cormier, an associate professor of law specializing in the First Amendment at Indiana University’s Robert H. McKinney School of Law, agreed that the distinction matters. If a third party is the one who created the disruption, he said, the analysis changes.
“The disruption is not necessarily caused by the speech itself, but by the propagation of the speech by a third party,” Cormier said.
He also noted that Swierc was not a public-facing employee, which he said is a relevant distinction under the First Amendment. Teachers and professors whose speech reaches students directly carry a different legal weight than that of administrators.
He also pushed back on the idea that social media’s viral nature shifts responsibility to the poster. Courts, he said, are still trying to protect the ability of public employees to speak privately online, even in situations where platforms amplify speech beyond its intended audience.
“Government employees who are really speaking as private citizens shouldn’t lose or shouldn’t have less First Amendment protection just because they’re government employees,” he said.
Because the case settled, no court ever ruled on that argument, which carries implications beyond just Swierc’s case.
In 2024, Indiana Attorney General Todd Rokita launched Eyes on Education, a state-run portal, “designed to give parents, students, and educators a way to share examples of what is being taught and promoted in schools and to provide transparency for parents and keep Hoosiers informed,” according to its website.
Months later, Indiana enacted Senate Bill 202, requiring public colleges and universities to create systems for reporting faculty concerns.
Neither of these policies directly caused Swierc’s firing, but together, they helped create a system in which her speech, intended to be private, was able to ignite a public controversy.
Rokita is quoted in the original complaint that his office was not investigating Swierc but “provid(ing) transparency, equipping parents with the information they need,” in reference to the Eyes on Education portal.
The state was amplifying rather than investigating, and that amplification is what Swierc’s attorneys argued created the disruption Mearns would use to justify her firing.
‘What exactly was the disruption?’
Swierc is not the only Indiana educator whose private social media activity became a public controversy after Kirk’s death.
Multiple teachers were featured on Rokita’s Eyes on Education portal, and at least several left their jobs amid the fallout. Yet no Indiana court has ruled on whether disruption generated by public backlash, rather than classroom conduct itself, can justify discipline.
In a May 26 email obtained by the Star Press, which Mearns sent to “senior leadership” the same day the settlement was announced, he defended his decision by citing Hedgepeth v. Britton, a Seventh Circuit ruling issued Aug. 26, 15 days before Kirk was killed.
In that case, according to Seventh Circuit court records, a high school teacher in Palatine, Illinois, was fired after private Facebook posts about the George Floyd protests went public. About 80 percent of her Facebook followers were former students and community members.
The school received more than 100 emails and media inquiries. The Seventh Circuit upheld her firing, finding that even private social media posts can cause foreseeable disruption, calling a private account a “stage whisper.”
The ruling relied on the Pickering balancing test, a legal standard established by the U.S. Supreme Court in 1968. Courts ruled that there is no First Amendment protection when public employees make statements, “pursuant to their official duties, even if those statements are about matters of public concern,” the official website of Congress states.
“My decision to terminate Ms. Swierc’s employment was based on the relevant facts, and it was guided by the applicable First Amendment case law in the context of public education,” Mearns wrote. “As in that case, the nature and extent of the public’s response to Ms. Swierc’s statement was reasonably foreseeable. In my judgment, the response was also readily predictable.”
Swierc and her attorneys saw it differently and believed that the cases were not the same.
“It was high school … this wasn’t the first time that people had gotten ahold of something they posted, and they had a lot of students or student families on their Facebook,” Swierc said. “A lot of the facts of the case didn’t feel like they were that similar or that they aligned to the facts of my case.”
Elsewhere in the country, the legal landscape was somewhat clarified earlier this year.
In South Dakota, University of South Dakota professor Phillip Michael Hook was placed on administrative leave and faced termination after posting about Kirk’s death on his private Facebook page.
“I’m sorry for his family that he was a hate-spreading Nazi and got killed. I’m sure they deserved better,” Hook had written.
He sued, and a federal judge ordered his reinstatement, finding that university officials had failed to show Hook’s comments disrupted his lessons or university operations. The school eventually dropped the matter entirely.
“(The university received) 130 emails, but you put a filter on it and you put them in a folder and you go about your day,” Swierc said. “Believe me, I can understand the anguish that staffers who had to answer the phone felt, but what exactly was the disruption?”
Cormier said that, in his opinion, the question of what actually constitutes disruption would have been the hardest part of the case for Mearns to win at trial.
“If the university is still able to do its job, the operations really weren’t disrupted, even though people were complaining,” he said.
A petition is before the U.S. Supreme Court challenging the Hedgepeth ruling itself. Case No. 15-819, filed Jan. 8, argues that the Seventh Circuit created an unconstitutional veto, but it is still pending.
Mearns said in the email that he authorized the $225,000 settlement payment because it was “substantially less than the anticipated amount of our university’s legal fees to defend the case.”
‘We have the right to use our voices’
Ball State’s American Association of University Professors chapter saw it differently.
“While this might seem like a ‘modest’ sum to someone who earns more than twice that per year, it is a huge sum of money for most employees and students at Ball State,” Matthew Hotham, associate professor of Religious Studies and co-president of Ball State AAUP, said in a statement to the Star Press.
He added that $225,000 is enough to hire three to five full-time instructors next year, to restore nearly all of the cuts from Student Affairs, or to halve the budget hit taken by the College of Communication, Information and Media.
Hothman also noted that Ball State’s own freedom of expression statement states that the university “guarantees all members of the university community” the opportunity to “speak, write, listen, challenge, and learn.”
“This is not the last lawsuit that Ball State is facing for allegedly infringing on the constitutional rights of its students and staff,” he said. “All of this could have been avoided if Ball State had abided by its own policies and statements.”
Swierc deactivated her Facebook account the day the ACLU filed her lawsuit in September. For weeks, she said she didn’t post anything on social media at all. Eventually, she started again on a private Instagram.
Some days she goes on what she calls “a little podcast rant” on her Instagram story. Some days, she said, she doesn’t care. Some days, she does.
Swierc started a part-time job at a local nonprofit this spring. She still lives in Muncie in the house she loves, near the friends she has made. She found a community here and plans to stay for now.
When asked whether she would do it all again — the post, the lawsuit, everything — she didn’t hesitate.
“Yes,” Swierc said. “We have the right to use our voices … We share all of our thoughts all the time, but I think being able to do that is a good tool. I don’t want to go down and hit (the) like (button), I want people to know what side I’m on. I don’t want anybody to have to question where I fall on any given moral or political issue.”
The settlement is done and the case is closed. But the questions raised on the First Amendment rights of public employees remain undecided by the state of Indiana.
The next Suzanne Swierc is still on their own.
“Someone had said, ‘If she had all those 1,000 (followers) in front of her in person, I doubt she’d say all this to their faces,’ and I thought about it for a long time, and you know what? I would,” she said. “If I had the opportunity, if somebody was like, ‘What do you think about this person’s assassination?’ And people are saying this and people are saying that, like, what do you think? And at an audience of a thousand people, I would tell them … I believe the things that I wrote and I have as much right to say them as anybody else.”
This article originally appeared on Lafayette Journal & Courier: Swierc settlement with BSU leaves key free speech question unanswered
Reporting by Trinity Rea, Muncie Star Press / Lafayette Journal & Courier
USA TODAY Network via Reuters Connect
