School May Pay for Firing Basher of Rep. Gohmert

NEW ORLEANS (CN) - After firing an employee who called Republican congressman Louis Gohmert "a fear monger," a Texas university does not have immunity, the 5th Circuit ruled.

Christian Cutler made the remark in 2010 after more than three years as director of art galleries at Stephen F. Austin State University, part of the Texas State University system. Rep. Gohmert at the time was making national headlines for his accusations that foreigners were sneaking pregnant women into the United States to have "terrorist babies."

Gohmert's staff had sought Cutler's help with an annual high school art contest the congressman sponsored in his hometown of Tyler, Texas. While Cutler said he was asked to "jury" the competition, meaning curate and judge it as a private citizen, the school contends that Gohmert had wanted Cutler to host the contest at SFA in his official capacity.

Cutler said he did not immediately accept the invitation, did some research on Gohmert when he did not hear back from the congressman's office, and did not like what he learned.

After becoming aware of Gohmert's statement on the floor of the House of Representatives, denouncing a supposed plot involving "terror babies" who could someday return to "destroy our way of life," Cutler decided not to accept the invitation.

While telling Gohmert's staff as much in September 2010, "Cutler explained his impression that Rep. Gohmert was a fear monger with whom Cutler did not want to be associated," the 5th Circuit summary says.

Gohmert replied with a strongly worded letter that informed Cutler "we will not bother you in the future" with an invitation to host the event. The congressman copied University President Baker Pattillo on the letter, leading to an employment investigation by the university.

The school fired Cutler on Sept. 27, 2010, prompting Cutler to sue the school, Pattillo and three other university officials in 2011.

A federal judge denied the defendants summary judgment, and three-judge panel with the 5th Circuit affirmed Monday.

"Assuming that Cutler's account of his conversations with Rep. Gohmert's office is credible, as we must do, Cutler's speech was made externally to a staff member of an 'elected representative of the people' allegedly about participating in an event that was not within his job requirements," Judge Edward Prado wrote for the New Orleans-based court.

Evidence supports an inference that the university should have known "that Cutler's speech was protected as the speech of a citizen and that their decision to terminate Cutler on the basis of that citizen speech would violate Cutler's First Amendment right," according to the ruling.

Cutler may also show that the school did not conduct its investigation "in good faith," the court found.

"Cutler spoke about concerns entirely unrelated to his job and from a perspective that did not depend on his job as a university employee, but rather emanated from his views as a citizen," Prado wrote.

The university also conceded that Cutler's speech had motivated their decision to fire him, according to the ruling.

"As a result, the District Court stated that the only issue before it was 'whether Cutler spoke as a citizen on a matter of public concern or as an official pursuant to his duties,'" Prado wrote. "It concluded that Cutler had presented sufficient evidence to create a genuine factual dispute on this element."

Gohmert, a five-term Republican, was elected to Congress in 2004 after defeating a Democratic incumbent when new district lines were drawn. He previously served three terms as a judge in Smith County before Gov. Rick Perry tapped him to complete a term as Chief Justice of Texas' 12th Court of Appeals, where he served from 2002-03. He handily defeated his 2012 Democratic opponent in the conservative 1st District of Texas with 71 percent of the vote.

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