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Friday, February 6, 2015

Former State Employee's Blog Posts Not Protected Speech

Former Assistant Attorney General Andrew Shirvell
Prosecutors are generally serious-minded individuals dedicated to law enforcement. This is especially true at Michigan's Department of the Attorney General. As such, you would not expect an Assistant Attorney General to maintain a blog; particularly a hate-blog showcasing a petulant homophobic obsession.

Yet this is what occurred some 5-years ago when former Assistant Attorney General Andrew Shirvell got a notion lodged in his craw that he was going to construct and maintain a blog solely devoted to trashing the openly-gay former University of Michigan Student Assembly President Chris Armstrong. None of the components to this story felt right at the time and sure enough, trouble followed for everyone involved.

Fast forward a half-decade and now we have a very significant 33-page published Michigan Court of Appeals' decision holding that Shirvell's blog and Facebook rants were not protected speech under the First Amendment. Although we are not fans of this individual as demonstrated by this 2012 post, this ruling does give us pause over here at the Law Blogger.

Before addressing the merits of the Court of Appeals decision, a brief review of the facts is in order. Shirvell's virulent anti-gay blog and frequent over-the-top public appearances got on the AG's radar real fast; Shirvell was "irrevocably undermined" within the AG's office. He was fired for conduct unbecoming of a state employee; he looked the part of a fool -a caricature bigot- on national television shows; he was successfully sued by Armstrong for millions; and he was denied his requested unemployment benefits.

Yet, here's the catch: he sued the state in administrative hearings that were appealed to the Ingham County Circuit Court where his First Amendment protected speech claims prevailed within the context of his request for unemployment benefits.

The important question raised in Shirvell's lawsuit against Michigan is whether, as a private citizen, he had a First Amendment right to say the things he did, even while employed by the State of Michigan as an assistant prosecutor. Does it matter in our First Amendment jurisprudence that, when this idiot mounted his soap box for the media circus he created, he was designated by the media as a representative of the Michigan Attorney General?

To the Michigan Court of Appeals, it mattered that Shirvell's speech disrupted the stated mission of the AG's office and that his conduct and speech eroded the trust the public places in the AG.  The Court of Appeals conducted a tour de force of our First Amendment jurisprudence in holding:
Here, Shirvell engaged in conduct that irreconcilably linked his speech with his employer. Specifically, Shirvell sat for televised interviews to defend his speech where he was identified as an assistant attorney general. Importantly, Shirvell agreed to the interviews despite having knowledge that he could be asked about his position as an assistant attorney general. During his first locally-televised interview, Shirvell was identified as an assistant attorney general and was asked questions about his position within the Department. Nevertheless, Shirvell subsequently agreed to two additional interviews with CNN and Comedy Central where he was again identified as an assistant attorney general and asked about his position with the Department. Although Shirvell refused to answer questions about his position, he was inextricably linked to the Department. In agreeing to the public interviews, Shirvell took deliberate steps that linked his speech to his employer.
For his part, in explaining the reasons for firing this "front line grunt", former Attorney General Mike Cox focused on Shirvell's pattern of escalating inappropriate behavior and minimized and separated the content of his blog. Cox recognized that public employees are at liberty to engage in free speech after the work day has been completed.  The former AG saw this guy as a misdemeanant-stalker who should have been charged as such by the Washtenaw County prosecutor.

We will see whether Shirvell will seek further review of the sordid mess he has created by filing an application for leave to the Michigan Supreme Court; nothing has been filed yet and the deadline fast approaches.

The funny thing about the First Amendment is that the strangest cases present the most difficult test to our rights of free speech.  Shirvell asserts that his former position with the AG's office put a "heckler's veto" into effect, crimping his free speech; he asserts that he has a right not to be fired, even considering what he did and said.

Although Shirvell has far exceeded his 15-minutes of fame, we here at the Law Blogger see the value in a full analysis of the issues he presents and would look forward to a well-reasoned opinion from the Michigan Supreme Court.  We wonder whether they will take his case.

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Anonymous Lauren said...

Thank you for sharing the backstory and information involving this case. I will definitely be following how it turns out.

February 10, 2015 at 5:08 PM 
Blogger The Law Blogger said...

We'll keep an eye out for you Lauren...

February 10, 2015 at 7:57 PM 

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