��֭����

It’s the hot-take heard round the world. Or at least round the conservative Twitterverse.

“... I’ve become the type of person where I hope they all get it and die,” says Marshall University microbiology professor Jennifer Mosher in a from a lecture covering COVID-19 and preventative measures. “I’m sorry, but that, I am so frustrated, and just, I don’t know what else to do. I — you can’t argue with them. You can’t talk sense into them. I said to somebody yesterday, I hope they all die before the election. That’s the only, that’s the only saving hope I have right now.”

Mosher was speaking about one of Donald Trump’s rallies where many attendees were unmasked. Critics — on and in the halls of the — called for Mosher to be fired after the September 2020 recording went viral. Marshall, following many institutions that choose reputation over rights, obliged.

Now, with an assist from ��֭����, Mosher is back in the classroom.

“Professor Mosher is entitled to speak about important issues of public concern, particularly when those matters are related to her expertise in microbiology and the topics of her courses,” said Katlyn Patton, the FIREattorney who represented Mosher. “She doesn’t give up her expressive rights just because she’s a professor.”

Mosher, who joined the Marshall faculty in 2014, received high student evaluations and was lauded for her research and mentoring skills. Science courses can be dry — and to keep the course fresh, Mosher often incorporated current events, peppering in jokes to keep students engaged.

The recordings

For Mosher, the pandemic is personal. She has multiple sclerosis, and at the time of the recordings, took medication to control the symptoms. The medication, which suppresses her immune system, makes her less able to fight off infections — including COVID-19. And in September 2020, no vaccines were available. 

Mosher’s parents were in a residential care facility, and several friends and family members had recently died from COVID-19 or related complications. All this in one of the most contentious political climates of our lifetimes. 

After working on campus for weeks, supervisors approved Mosher’s request to teach remotely. She believes she was “one of the candidates for severe infection or death,” and had concerns about lax masking on campus. 

Then her internet connection failed, sending her back to campus for a better connection.

On Sept. 15, 2020, Mosher went to campus to teach her classes on microbiology and a special section on the biology of COVID-19. She discovered students and staff were violating the mask policy, causing her to feel unsafe teaching on campus.

In an offhand remark before Mosher’s microbiology class, a student commented about thinning the gene pool. 

In response, Mosher said, “Oh, I think the same thing about, um, thinning the gene pool. Um, without getting into politics, all the large gatherings of certain groups of people holding rallies, um, I’m, I’m like yeah, let Darwin take, do its job, or Darwinism. Um, and hopefully they’ll all be dead by the election. [laughing] I’m sorry, that’s horrible . . .” 

Professors’ academic freedom rights protect a wide breadth of speech — including plenty of speech that any given segment of the population may find offensive or objectionable.

The pre-class exchange took less than two and a half minutes, after which the class began and proceeded without incident.

​​During a later class, Biology of COVID-19, Mosher showed a 2015 TED Talk from Bill Gates about readiness for the next pandemic. Then she responded to a number of student questions about the video before saying: “Alright, I’ll be honest with you. I can’t hold back anymore. Trump took all that money to build his wall. He gutted the pandemic team. Any response we would have had, we were completely unprepared for because we had to build that damn wall, sorry.”

That’s when she added her opinions about masking, political rallies, and her “only saving hope” that those flouting masks would die before the election. 

In both cases, Mosher apologized for the statements and moved on without apparent complaints by students. Mosher called the rants “dark humor,” telling an investigator “a lot of times my tangents are entertaining, this one I regret.” Faculty and students said the comments were sarcastic and “were clearly not literally intended to wish death” upon Trump supporters. Mosher went on to teach the next day without incident.

The brouhaha

One day later, on Sept. 16, a Twitter user posted four clips from the lectures, tagging Donald Trump, members of his family, and media outlets. The clip went viral — causing Marshall to Mosher two days later.

Marshall administrators admitted to Mosher that while “the University acknowledges that you have certain freedom of speech and academic freedom rights, it appears that your statements made during this lecture may have exceeded those rights.”

According to the report from the West Virginia Public Employees Grievance Board, Marshall cut ties with Mosher because “conservative students would feel unsafe and uncomfortable” in her classes. (Two parents did make complaints about Mosher, but their children disagreed with their parents’ complaints, with both students telling investigators they were not offended by the comments. The investigator did not interview any of Mosher’s other students.)

By Sept. 20, lawmakers in Charleston got involved. Half the members of West Virginia’s Senate sent a letter to Marshall lamenting that “resources are being used to promote the very same hate speech that is inciting riots, assassination of police officers, and denigration of our Republic.” (Senators also addressed the letter to the president of West Virginia University, in their crosshairs after WVU football players put on their helmets.) 

The fact that Marshall receives taxpayer money was a commanding theme of the ; 7 of its 12 sentences explicitly mention taxpayers or their resources. Lawmakers complained that “law abiding tax payers’ money” is used to pay for “disgusting” behavior. In response to the veiled threat letter, Marshall President Jerome Gilbert wrote to the board of governors, assuring them that he told the letter’s author, Sen. Eric Tarr, that he’d take “appropriate action.”

Gilbert testified that the letter was more “political grandstanding” than a threat. Provost Jaime Taylor disagreed, calling it a “vague threat of a cut in funding.”

Marshall investigated, concluding that Mosher’s remarks “may have caused a controversial environment where at least some of the students felt uncomfortable or offended.” The university’s report did not allege Mosher directed her remarks at any particular student (and none complained), nor does it assert that they amounted to harassment on the basis of a protected characteristic. 

Notably, the report did not address Mosher’s academic freedom or freedom of expression.

On Oct. 7, ��֭����’s Adam Steinbaugh contacted Gilbert, reminding him of the public institution’s “moral, constitutional, contract, and regulatory obligations prohibiting it from terminating Mosher for her remarks, however controversial.”

FIRE will remain vigilant to ensure that students and faculty rights are protected. And when they are threatened, we will be there.

“However unpopular or offensive her views may be to others, the First Amendment protects the right of faculty members to engage in classroom discussions that others — inside or outside of the classroom — may find offensive, unwise, immoral, or wrong-headed,” he wrote. This right protects faculty members from all political (and non-political!) persuasions, and weakening this right for one group of people automatically weakens it for all.

FIRE never received a response to our letter, and Marshall officially terminated Mosher on Oct. 8.

Mosher retained father-son lawyer duo Mike and Dru Frazier of in Huntington to assist her in fighting her termination and FIREas First Amendment counsel. For more than a year, the law firm and FIREattorneys worked to restore Mosher’s rights by prosecuting a grievance before the West Virginia Public Employees Grievance Board.

The order

On Dec. 9, the grievance board issued its order, finding that Mosher’s termination was more likely than not “based upon outside political pressure,” and in violation of her academic freedom and tenure. 

The order notes: “Like many controversial topics, a discussion of the science as opposed to strongly held conviction will inevitably alienate some people” — and it’s for that reason faculty have academic freedom.

The grievance board concluded, correctly, that Mosher’s remarks were constitutionally protected and were “not an appropriate cause for dismissal.”

The order includes reinstatement with back pay and interest. A spokesperson for Marshall the Huntington Herald-Dispatch that Marshall did not plan to appeal the decision, and their 30-day deadline to appeal expired earlier this week.

The grievance board found that, in consideration of the context, the political atmosphere, and Mosher’s pandemic-related fears, “her statements were not a threat or even a true wish of harm to the President and his supporters.”

“The statements were at worst crude and dark hyperbole stating opposition to the President and his supporters refusing to follow scientifically proven measures to promote public safety for perceived political gain.”

Marshall failed to prove that Mosher’s remarks “significantly interfered with Marshall University’s interest in the efficient and orderly operation of its affairs.” The grievance board concluded, correctly, that Mosher’s remarks were constitutionally protected and were “not an appropriate cause for dismissal.” 

The future

Professors’ academic freedom rights protect a wide breadth of speech — including plenty of speech that any given segment of the population may find offensive or objectionable. But faculty members must have wide latitude to make pedagogical decisions about what to teach, and how to teach it in ways that work for them. And even asides tangential to the subject of a course remain within the breathing room academic freedom provides. Faculty expressive rights must remain robust, and away from the grasp of censor-happy administrators and politicians who try to sway them by threatening funding cuts or other consequences.

As the United States Court of Appeals for the Ninth Circuit in Rodriguez v. Maricopa County Community College District:

The right to provoke, offend and shock lies at the core of the First Amendment. . . . This is particularly so on college campuses. Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities—sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments—have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale.

Mosher’s case is a win for academic freedom and faculty rights, but her treatment is not unique. ��֭����’s Scholars Under FIREdatabase examines how often faculty and others are targeted for their speech or research. Since 2015, more than 500 incidents have occurred.

Over two-thirds of them resulted in some form of sanction, with investigation being the most common. But in 21% of cases, including Mosher’s, the scholar was terminated.

And alarmingly, the number of targeting incidents is on the rise: from 30 in 2015 to over 100 in 2021.

“We see this everyday here at ��֭����,” said ��֭����’s Steinbaugh. “Conservatives try to silence liberal speakers, liberals try to silence conservative speakers, and administrators want to look like they’re doing something. Until people realize that trying to censor someone else’s expression will only threaten their own right to speak their mind, or until administrators stop rewarding that pressure, the cycle will only continue to worsen.”

In 2021 alone, FIREreviewed nearly 1,500 case submissions. Each one of those cases represents a student or faculty member — or multiple students and faculty members — who are coming to FIREbecause they believe their rights have been violated. It’s a number that’s on the rise in recent years.

FIRE will remain vigilant to ensure that students and faculty rights are protected. And when they are threatened, we will be there. It’s why FIRElaunched its Faculty Legal Defense Fund to provide free emergency legal assistance to faculty members at public institutions. 

“We can mark this as a victory — and we’re happy that Professor Mosher is returning to the classroom,” said Patton. “But she’s far from alone in our database of professors who lost their jobs in the face of criticism. There are so many people whose livelihoods are threatened because of the words they said — expression that is totally protected by their First Amendment right and their right of academic freedom. The fight continues.”