The University of Wisconsin System Board of Regents announced in late December that it voted unanimously to terminate long-time chancellor of the UW-La Crosse campus, Joe Gow, after discovering his involvement in the adult film industry.
Gow, with his wife, Carmen Wilson, appeared in several posts to OnlyFans and other porn sites under the account name “Sexy Happy Couple.” Gow and Wilson describe themselves on these accounts as a “passionate plant-powered couple cooking, conversing, and shooting extraordinary sex scenes with top adult stars!”
The couple’s films showcase their interests in veganism and the adult entertainment industry with their “Sexy Healthy Couple” series of interviews conducted with adult film actors while cooking vegan meals, in addition to sex scenes featuring the couple and others. They also co-wrote two books on their experiences in the adult film industry under pseudonyms.
Gow had already announced his decision last August to step down as chancellor and assume a full-time faculty role at the end of the 2023–24 academic year. But now the board has not only placed him on administrative leave, ending his chancellorship immediately, UW System president Jay Rothman has filed a complaint with the new interim UW-La Crosse chancellor seeking review of Gow’s status as a tenured faculty member, claiming “significant reputational harm” to the university from his actions.
So, who is correct?
Does the First Amendment protect Gow from being fired for appearing in adult videos available to the public?
In short, while the First Amendment may indeed protect Gow’s continued employment as a faculty member with UW, the university will likely cite grounds for terminating his position as chancellor around the terms of his appointment and the high-ranking and public-facing nature of the position.
Healthy sex, veganism, and the adult film industry are matters of public concern for which there exists a public audience.
But let’s break down the relevant law to understand why the Constitution may protect Gow’s employment as a professor.
Government employers — including public universities like UW — may generally discipline or terminate an employee for his speech when the employee speaks pursuant to his official job duties. That’s the case regardless of whether he was speaking about a personal dispute with a coworker, or a matter of government policy within the employee’s responsibilities that the public arguably has an interest in knowing about.
Citizens also retain their First Amendment right, even when they become government employees, to comment in their personal capacity on matters of public concern. UW cannot justify its actions based on this rule because there’s little question Gow was not speaking as a professor (or as UW chancellor) in his films. In fact, neither Gow nor his wife identified themselves by their full names in the videos or linked either the Sexy Happy Couple accounts or the books to their real names. The only way to connect the content to them was to recognize their faces.
But there are circumstances in which a government employer’s right to discipline an employee for his speech is more limited, including: (1) when the employee is speaking as a private citizen — that is, not in his role as a government employee — on a matter of public concern; (2) if the employee is a college professor and is speaking on a matter of public concern in the context of his academic research or teaching duties; and (3) when an employee speaks in his private capacity outside the workplace on a matter largely unrelated to his official duties, the speech is addressed to a potential public audience, and the employee has not deliberately linked the speech to his employer’s mission, purpose, or image.
In these circumstances, the government may discipline the employee for his speech only if the government’s interest in promoting the efficiency of its services outweighs the employee’s interest in speaking.
Here, Gow’s appearances in the Sexy Happy Couple films arguably fall under the first scenario of private speech on a matter of public concern and the third scenario of speech unrelated to his faculty role. Healthy sex, veganism, and the adult film industry are matters of public concern for which there exists a public audience, as opposed to the types of interpersonal matters of little interest to a larger audience.
And Gow has a good case, as his interest in appearing in the films — on his own time, in a personal capacity, without reference to or impact on his faculty role — likely outweighs the university’s interests in avoiding speech on the topic of sex, reputation, or potential student reactions.
In fact, that was the holding of the U.S. Court of Appeals for the Seventh Circuit — the federal appellate court with jurisdiction over Wisconsin — in a similar case in 2019. In Harnishfeger v. United States, the court held the government could not fire an employee of the federal Volunteers in Service to America program based on her publishing a book under a pseudonym about her work as a phone sex operator, because she had not taken any deliberate steps to link her book with her government employment.
The Seventh Circuit distinguished other cases where courts had held that employees could be fired for their out-of-work expression related to sex or porn because those cases involved employees who deliberately linked their government employment to the adult content. The court also dismissed the government’s speculative concerns of reputational damage because the employee was neither in a high ranking position in which she spoke on behalf of her employer nor in a position where her authorship of an explicit book would undermine trust in her ability to satisfy her official VISTA duties. After all, the court noted, First Amendment protections for public employee speech “would mean little if [the] protection could be circumvented by merely identifying an author as a public employee.” Finally, the court concluded that the existence of a public audience interested in the book’s subject rendered it speech on a matter of public concern.
And so it is here too. Gow did not link the films to his employment at UW or even to his real name. And, at least in his role as a UW faculty member, he is not speaking on behalf of the university in ways that he might as chancellor, and his ability to satisfy the duties of a faculty member are not undermined by appearing in the films. The alleged reputational damage to the university asserted by UW president Rothman, if there is any considering Gow as a faculty member, arises solely from the university’s own actions publicly linking the adult films to Gow.
The First Amendment restricts state universities from retaliating against faculty members based on the controversial nature of their speech. Where their speech is not obscene or otherwise unprotected, occurs outside of work, is unrelated to their employment, and concerns a matter of public interest, institutions may not punish faculty members for their speech simply because university administrators disapprove of its content.
That principle applies whether the speech concerns veganism or sex. Or, in this case, both.
FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If you’re a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).