Wednesday, September 29, 2010

Cyberbully Andrew Shirvell, Asst. AG for Michigan, and Pickering Free Speech Rights

Cyberbully I can't make this stuff up.  From CNN and Anderson Cooper (with video):

For nearly six months, Andrew Shirvell, an assistant attorney general for the state of Michigan, has waged an internet campaign against college student Chris Armstrong, the openly gay student assembly president at the University of Michigan in Ann Arbor.

Using the online moniker "Concerned Michigan Alumnus," Shirvell launched his blog in late April.

"Welcome to 'Chris Armstrong Watch,'" Shirvell wrote in his inaugural blog post. "This is a site for concerned University of Michigan alumni, students, and others who oppose the recent election of Chris Armstrong -- a RADICAL HOMOSEXUAL ACTIVIST, RACIST, ELITIST, & LIAR -- as the new head of student government."

Among other things, Shirvell has published blog posts that accuse Armstrong of going back on a campaign promise he made to minority students; engaging in "flagrant sexual promiscuity" with another male member of the student government; sexually seducing and influencing "a previously conservative [male] student" so much so that the student, according to Shirvell, "morphed into a proponent of the radical homosexual agenda;" hosting a gay orgy in his dorm room in October 2009; and trying to recruit incoming first year students "to join the homosexual 'lifestyle.' "

I am thinking these comments are those of a seriously mentally ill person. The question is should Shirvell be continued to be employed as a representative of the State of Michigan? 

Shirvell talks of being a Christian citizen exercising his First Amendment rights on his own time, but even off-duty speech or actions can have an impact on someone's public employment. Because he is now identified as Michigan state attorney and his craziness is national news, can't it be said that he is substantially disrupting the Michigan Attorney General office by becoming the news and undermining the impartiality and good judgment of his office.  Under a Pickering balance, the analysis would appear to support adverse employment action against Shirvell to protect the effectiveness and efficiency of the government service.

I think if he is fired, which he should be for his asinine condut, the State of Michigan should be free of First Amendment liability, whether he is talking as a private citzen and whether he refuses to discuss his public employment himself.

Hat Tip: Denise Faili


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abdrew shirell is a nazi biggit who need to learn that this is the new age and as a michigan resident i will watch him and make sure i can hopely stophis politally career thru voting him away for us.

Posted by: kevin | Sep 29, 2010 11:38:46 AM

After 23 years in juvenile court, I learned that teenagers often learn from the experiences of their peers, not just from being lectured by those in authority. Consequently, “Teen Cyberbullying Investigated” was published in January, 2010. Endorsed by Dr. Phil on April 8, 2010 ["Bullied to Death" show] TCI presents real cases of teens in trouble over their online and cell phone activities. Civil & criminal sanctions have been imposed on teens over their emails, blogs, text and IM messages, Facebook entries and more. TCI is interactive and promotes education & awareness so that our youth will begin to “Think B4 U Click.” Thanks for looking at “Teen Cyberbullying Investigated” on [publisher] or on [a free website for & about teens and the law].
Regards, -Judge Tom.

Posted by: Judge Tom | Sep 29, 2010 6:56:45 PM

As abhorrent as I find this individual and his conduct, I hope that the crappy state of constitutional free speech protections for public employees will not be the reason why he loses his job. I'd much rather there be a finding that he engaged in defamation and harassment that justifies his removal for good cause.

Whatever the case, I watched that video footage earlier today and thought, this is one screwed up, messed up dude. I won't even begin to speculate on the kind of behavior that HE engages in, hopefully in the privacy of his own home.

Maybe he and Christine O'Donnell can meet up sometime and at least create the possibility of the whack job haters keeping their gene pool within a compact group.

Posted by: David Yamada | Sep 29, 2010 8:21:50 PM

Hmmm. Not within the scope of his duties, so Garcetti doesn't bar his suit. The "homosexual agenda" is a matter of public concern -- we know that 'cause Justice Scalia told us so. And the Michigan AG has disapproved his views, but doesn't seem to believe this is disruptive. Granted, the guy's a despicable idiot, but I wouldn't have thought that Professor Secunda would have believed that to be a basis for retaliating for first amendment expression.

Further, Paul seems to regard the person as mentally ill, which raises the ADA question, either actually disabled or regarded as such. Which I think raises the standard of protection above hypothetical disruption if the employer were to share Paul's views (as I do, and which don't seem unreasonable from a lay perspective).

Sounds like a great exam question. Even better if you could show the clip to the students before asking the question whether he could be fired.

Posted by: CAS | Sep 30, 2010 5:25:06 AM

Unless he is sending this stuff from his AG computer I think that he should not be disciplined. If there is harassment and/or defamation that is for the student body president to claim. If the hateful guy is found liable and there is a nexus to his employment then I can see an issue.

Posted by: Per Son | Sep 30, 2010 8:01:41 AM

Thanks to Charlie, David and everyone for their comments.

Putting aside whether this guy ever claimed mental illness (or whether his employer ever regarded him as mentally ill), I think the Michigan AG might change his tune now that this guy has become an overnight sensation (not for the right reasons, of course).

As you all probably know from labor arbitration law, the proper consideration in this area of First Amendment law is the nexus test and whether the conduct that the employee engages in off-duty substantially impacts the workplace (merely being off-duty does not protect him). Remember Charlie that the AG made his comments about his Asst. AG BEFORE he did this interview with Anderson Cooper where many more million people became familiar with him. Whether he is a substantial disruption to his workplace has to be considered again after these new events.

Also, this guy is not some municipal clerk, but an Assistant Attorney General for the State of Michigan. He is a public figure who represents the state. His off-duty words, whether he likes it or not, will impact how he and his office are perceived by the public. As Anderson Cooper pointed out in his interview, his conduct inexorably undermines the public faith in his ability to be fair and just in his prosecution of cases.

So, based on his position and based on the fact that he has chosen the spotlight for himself by going on national TV, I think there is a good case that he can be fired even under the pure Pickering framework (sans Connick or Garcetti).

Posted by: Paul M. Secunda | Sep 30, 2010 8:22:26 AM

The general consensus in my class is that he can and should be fired under Pickering/Connick. While "homosexual agenda" in general is a public concern, Mr. Shirvell is also making statements on his blog that seem to go beyond matters of public concern. He includes Facebook screen shots of Mr. Armstrong at parties, apparently in order to show that Mr. Armstrong and his friends were engaged in underage drinking and to raise questions about the nature of some of Mr. Armstrong's personal relationships. In addition, he is now attracting (negative) national attention to himself that can easily be connected up to his government employer. Even though his speech is not work-related nor within the scope of his duties, it may have a significant disruptive effect on the efficient operations of his government employer. In particular, the Michigan AG has been engaging in an anti-cyberbullying campaign (although I understand that there is no anti-cyberbullying law in MI). By promoting his blog, Mr. Shirvell may be undercutting the AG's official anti-cyberbullying campaign. That said, the unpopularity of Mr. Shirvell's views seems to be the driving force behind all the media attention and the calls for him to be fired. The First Amendment is meant to protect unpopular speech, too. Agreed with the point about the possible ADA problem, although that seems to be just speculation by non-professionals. We don't have any real evidence of any potential mental illness.

Posted by: J. Bent | Sep 30, 2010 8:29:39 AM

What about the Branti/Elrod exception for political patronage firings? Surely an assistant AG is a policmaker/advisor, and the AG could fire him for being a member of an unsupportive political faction and get qualified immunity.

Posted by: WHPIV | Sep 30, 2010 10:04:44 AM

How soon we forget.

A couple of decades ago, progressives (I think we could still call ourselves liberals back then) were up in arms when another assistant attorney general was fired -- in that case for going through with a commitment ceremony. The court upheld the firing on exactly the "conduct unbecoming an assistant attorney general" grounds that Paul and Jason argue here. I and others around then were outraged because the principle basically had no limits -- by definition, unpopular speech by a government official is likely to be, well, unpopular. Popular opinion (thankfully) has shifted substantially on the gay rights issue, but the issue is identical. And those of us who support employee rights do no good by twisting doctrine to make clear that our preferences, not our principles, are driving us.

I find Jason's post particularly revealing -- the AAG "can and should be fired under Pickering." It shouldn't be necessary to point it out, but Pickering et al say nothing about whether speech should be punished, only about whether it can be punished. The "should" reflects political preferences, not constitutional analysis.

Posted by: CAS | Oct 1, 2010 5:05:43 AM

There are further updates on the Detroit News ( and on Above the Law. Apparently Mr. Shirvell has taken a personal leave and has added password protection to his blog, so that it is invitation-only. The Michigan AG has backed off some earlier statements about Mr. Shirvell's immaturity and reiterated that his after hours speech is protected by the First Amendment. But the AG's office also mentioned that Shirvell will be the subject of a disciplinary hearing when he returns to work.

Posted by: J. Bent | Oct 1, 2010 11:40:49 AM

Wonder when the connection will be made between this guy's behavior and the same folks who are responsible for the Tyler Clementi suicide?

Posted by: Concerned | Oct 1, 2010 2:12:17 PM

That is not what I meant. The class consensus is that he can be fired under Pickering, and that if the students were the employers they would probably choose to fire him because of the types of things he is doing to and saying about Mr. Armstrong, and because he continues to take steps that draw national attention to the things he is doing - presumably to the detriment of the AG's office. I think this position is not necessarily due to the prevailing political views on homosexuality. The blog posts go well beyond simply arguing against gay marriage or against a "homosexual agenda" in general. If purely political speech taking unpopular positions on policies relating to sexual orientation were at issue, this would be a different story. I share your concern about firing a government employee solely because the employee's unpopular political speech can be connected up to a government employer.

But if the politics were reversed, and an openly homosexual AAG started a blog with very similar posts attacking a student leader that had openly expressed opposition to gay marriage, I think you might well find a consensus for firing that AAG as well. The key is the nature of the posts, not the direction of the politics. Much of the speech on Shirvell's blog appears to go beyond matters of public concern. As for the commitment ceremony case, the competing governmental and employee speech interests at stake here are not "identical" to that case. To the extent that Shirvell's speech is not on a matter of public concern, it is not protected at all. The employer interests at stake here are probably more substantial, too, given that Mr. Shirvell is drawing national attention to his actions and possibly undercutting the AG's anti-cyberbullying campaign. The AAG in the commitment case took no steps to publicize her ceremony or turn her ceremony into a political statement (which would have been contrary to the AG's official positions on gay marriage and sodomy laws). So you might well have been up in arms about that case, yet still be inclined to permit the firing of Shirvell without twisting the doctrine.

Also, and more importantly, two decades ago I was not up in arms about the ceremony case. I will not reveal what grade I was in, but it is safe to say that we had not yet covered First Amendment rights for public employees.

Posted by: J. Bent | Oct 2, 2010 10:58:33 PM

It gets better. I guess the Assistant AG has a restraining order against him as he appeared by the student president and was taking photos.

Seems kind of stalkerish.

Posted by: Per Son | Oct 4, 2010 7:16:29 AM

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