Fresno State professors raise free speech concerns in wake of Charlie Kirk controversy

This story was produced by The Collegian, Fresno State’s award-winning student newspaper and republished with permission by Fresnoland.

After an audio recording of Fresno State professor Barri Brennan commenting on Charlie Kirk’s death went viral, the incident has sparked many questions about free speech and privacy within the university. The controversy also reflects a broader national debate over academic freedom and the free speech rights of faculty.

In the recording, Brennan is asked by a student if she had heard about Kirk’s shooting before his death was officially confirmed. Brennan replied, “It’s too bad he’s not dead.”

The recording was made in Brennan’s classroom prior to the official start of class, raising questions about when, if ever, a classroom transitions into a private space during instruction.

Fresno State placed Brennan on leave after her comments about Kirk’s death, with the university saying it “condemns, in the strongest possible terms, any language that celebrates or condones violence.” Free speech advocates, however, argue that even deeply offensive remarks are protected under the First Amendment.

According to Lisa Bell, the public information officer of Fresno State, Brennan is on paid administrative leave.

One student in Brennan’s class, Lara Habib, spoke to The Collegian about Brennan’s comments in class.

“It just felt very uncomfortable in the room and none of us really knew what to say,” Habib said. “After that, there were a lot of awkward pauses, and people were laughing it off; some people had a blank face.”

Habib said she did not know who did the recording and did not know that class was being recorded at the time. 

This is not the first instance where a university has taken disciplinary action against a professor’s comments about Kirk. So far, over three dozen professors and faculty nationwide have been placed on leave or fired. 

Some of the free-speech questions raised include whether professors can be fired for something they say when it is illegally recorded, what the enforcement of no recordings in class looks like and expectations of privacy in the classroom.

Public or private spaces?

On Sept. 22, the Academic Senate heard from President Saúl Jiménez-Sandoval on the issue. Several questions regarding free-speech issues were raised by faculty members. 

“In California, you cannot record without consent,” said Thomas Holyoke, a political science professor who also sits as the universitywide senator on the Academic Senate. “Classrooms being considered public spaces — that’s wrong.”

In a statement to The Collegian, Jiménez-Sandoval explained that classrooms are still seen as non-public spaces, despite concerns among faculty at the Senate meeting. 

“Classrooms are designated as non-public spaces under our Time, Place, and Manner policy — this means that only authorized individuals (chiefly faculty and students) may be present in these physical spaces during class sessions,” Jiménez-Sandoval said. 

Although classrooms are seen as non-public spaces, which would make it illegal for someone to record without consent according to California Penal Code 632, Jiménez-Sandoval iterated that it is the professor’s responsibility to make it clear in their syllabus that recordings are strictly prohibited in class. 

If a professor decides to allow students to record in class, the schoolwide syllabus template says to make it clear that recordings are “not to be shared with individuals who are not officially registered for the course” and that recordings should be deleted by the end of the semester.

Jim Schmidtke, the associate vice president of Faculty Affairs at Fresno State, spoke to faculty members at the Academic Senate meeting regarding the two-party consent recording rule in classrooms.

“We do have two-party consent in the state of California, but there are exceptions,” Schmidtke said. “If you have four or five students standing in that classroom and you’re having a one-on-one conversation with a particular student, that may not be enough to be a confidential conversation.”

The Collegian reached out to Schmidtke for comment on his statement.

“While privacy laws can be complex, our focus remains on maintaining respectful, inclusive learning environments grounded in mutual trust and academic integrity,” Schmidtke said. 

The president’s remarks throughout the Senate meeting had a similar message: the university had no real way of enforcing no recordings in classrooms because there was so little that officials could do once someone records and/or posts the recording. 

This led to some faculty members wondering if there would be any punishment for a student who records while in class.

“To my knowledge, there is no clear punishment for breaking the law like this,” Holyoke said. “We have asked the administration about this, but have yet to get clear answers. I doubt they know themselves.”

Another concern brought to the Academic Senate was about meetings in offices being potentially recorded by someone in the hallway. According to Holyoke, it is a rule of thumb that professors must keep their office door open when meeting with students.

According to the Time, Place, and Manner policy, both offices and hallways are seen as private spaces.

Andrew Jones, the president of the California Faculty Association’s Fresno chapter, told The Collegian he believes students should not meet with professors in between classes if there are concerns about surveillance.

“I would advise students and faculty against having confidential conversations in hallways or between classes if they have expectations of privacy,” Jones said.

What speech is unacceptable on campus? 

At the Academic Senate meeting, one professor asked if faculty should assume they are being “recorded all the time.” Jiménez-Sandoval responded by saying no, but that speech on campus “requires a certain level of protocol.”

“At this time, I’m not able to reconcile the wishing of a death of someone with having someone in the classroom representing Fresno State,” Jiménez-Sandoval said. 

The Collegian asked several professors if they knew what “protocol” Jiménez-Sandoval was referring to in the Senate meeting.

“To my knowledge, there is no such protocol,” Holyoke said. “I don’t even think there should be. Faculty should be reminded about the scope of academic freedom, which is a long-held right in American academia to say anything they feel needs to be said, as long as it is in the realm of their professional expertise.”

Another faculty member, who chose to remain anonymous, shared that he, too, had never seen a protocol or policy dictating what type of language is unacceptable for a professor to say on campus. 

“I am one of the few faculty who read every single email that hits their inbox,” the faculty member said. “I don’t ever recall seeing this policy. So, let us know — what is the protocol for faculty?”

The so-called protocol that the president mentioned in the Senate meeting raises many First Amendment concerns, most notably, whether what a professor (in this case, Brennan) says in a recording can be admissible as evidence to be placed on leave for violating said protocol. 

“Once that recording goes out, there is little that I can do to simply say ‘the recording is not allowed,’” Jiménez-Sandoval said.

The Foundation for Individual Rights and Expression (FIRE) challenged Fresno State’s decision to place Brennan on leave in a Sept. 26 letter sent to Jiménez-Sandoval.

“Fresno State’s obligations under the First Amendment bar it from investigating or punishing protected political expression — even that which some may view as poorly timed, tasteless, inappropriate or controversial,” wrote Haley Gluhanich, who is on the senior program counsel for FIRE, in the letter. 

If the university has no official policy regarding professors’ speech in classrooms, and officials decide to fire Brennan, they would be liable for violating the First Amendment because the California State University (CSU) is a public institution and is subject to the First Amendment. 

The Collegian asked Jiménez-Sandoval if there was any policy in place that includes regulations on professors’ speech on campus.

“Under APM 336, faculty have both the right to academic freedom and the responsibility to foster a learning environment that honors diverse perspectives,” Jiménez-Sandoval said in his statement. “What I want to underscore … is that our role as a public university is to protect speech while modeling respectful engagement that strengthens our community of learning.”

Moving forward

Many faculty members in the Academic Senate meeting wanted more to be done about illegal recordings taped in classrooms. 

Jiménez-Sandoval explained that the Collective Bargaining Agreement dictates the processes for going forward in cases such as recordings and faculty issues, but never explicitly mentions punishments in place for students. 

According to the Student Code of Conduct, “sanctions” can be imposed on students who violate the Code of Conduct, but it never explicitly states what kind of punishments students can receive. 

“[We need] a clear message to students (and really everyone on campus) that it is illegal to secretly record people in non-public spaces and that there will be punishments for people caught doing it,” Holyoke said. 

The faculty member joked that locking up students’ cellphones would be an effective way to prohibit class recordings, but that it would be too “authoritarian.” Instead, he suggested that the university take a stronger stance against recordings. 

“Let’s not make it optional in the syllabus; let’s make it mandatory,” the faculty member said. “Audio and video recording is prohibited unless expressly given consent by the professor.”

More faculty members in the Academic Senate meeting wanted to know if they can be fired for what they say when it is illegally recorded. Holyoke suggested that the university should stand firm on First Amendment rights. 

“It should also be made clear that even when faculty, staff and students say something potentially offensive, the First Amendment prevents them from being punished by the university because the CSU is part of the California state government and the First Amendment protects nearly all speech from the government,” Holyoke said. 

So far, the university has given no clear answer on whether what a professor says when being recorded without consent is admissible for disciplinary leave or termination, leaving many questions unanswered and professors and students concerned for their privacy rights.