Nathan Triplett posted this on a Facebook page, and he has agreed to let us reprint his remarks here. Our goal is to bring a variety of thoughtful voices to controversial issues such as this.
This case involves the continuing news story that began when CNN’s Anderson Cooper spotlighted the protests that Michigan Assistant Attorney General Andrew Shirvell was making against openly gay University of Michigan student president Chris Armstrong. On a subsequent show, Attorney General Mike Cox was asked to explain why he had not fired Shirvell. Shirvell later took a voluntary leave of absence as a result of the mounting public pressure. Armstrong is slated to appear on Anderson Cooper’s show 360 tonight at 10 p.m.
An Alternative Progressive Perspective on Bigotry & the First Amendment
In recent days, the hateful, inflammatory, and outrageous content of Assistant Attorney General Andrew Shirvell’s â€œChris Armstrong Watchâ€ blog has prompted a chorus of calls for his dismissal from the AGâ€™s office. Public officials are tripping over themselves to call for Shirvellâ€™s termination. A â€œFire Andrew Shirvellâ€ Facebook page has sprung up and already has 14,664 fans, as of this writing.
Every time I see another update pop up on my News Feed when another friend joins the page Iâ€™m tempted to jump on the bandwagon, but I just canâ€™t bring myself to do it. Donâ€™t misunderstand me, I empathize with the sentiment being expressed and I share the outrage, but I have to question whether calling for the dismissal of Shirvell is the best position for progressives.
I consider myself an ardent advocate of equal rights for LGBT Michiganians (and I think my record bears that out), but at the same time I take the Constitution and the First Amendment very seriously, as I believe we all should. Maybe public officials and everyday Facebook readers alike shouldnâ€™t be so quick to assume that termination is our only, or even our best option to respond to Mr. Shirvellâ€™s bigotry.
As a general principle, Iâ€™ve always believed that the antidote to hate speech is more speech. Censorship is a Pandoraâ€™s Box. Once applied to one personâ€™s speech it is easily applied to another, and another, and another. Today we seek to punish Mr. Shirvell for his anti-LGBT ranting, but tomorrow it might just as easily be a state employee advocating for marriage equality or second parent adoption in the crosshairs. Iâ€™ve had some experience with the chilling effect that the threat of adverse employment action can have on the political free speech of government employees and itâ€™s always left a bitter taste in my mouth.
In light of these considerations, itâ€™s simply not enough for me that speech is offensive (even when it is extremely so). It must also be beyond the protection of the First Amendment before I can countenance restrictions on that speech.
So the question remains: Is Andrew Shirvellâ€™s speech entitled to the protection of the First Amendment?
The First Amendment provides that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The Supreme Court has long recognized that the protections afforded by the First Amendment are not absolute. One area in which the Court has recognized some limitations is the speech of government employees.
The leading Supreme Court case on the First Amendment rights of public employees is Pickering v. Board of Education, 391 U.S. 563 (1968). In Pickering, the Court was confronted with the question of whether or not a public school district could terminate a teacher for submitting a letter to the editor criticizing the districtâ€™s allocation of funds between education and athletic programs. The Court held that the termination had violated the teacherâ€™s First Amendment rights and in doing so noted the importance of balancing the interest of the employee as a citizen, in commenting upon matters of public concern, and the interest of the State as employer, in promoting the efficiency of the public services it performs through its employees. The Courtâ€™s analysis is instructive:
What we . . . have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.
Id. at 572-73.
The Pickering balancing test remains central to evaluating the reach of the First Amendment in public employment situations. When evaluating whether the termination of a public employee violates the First Amendment, we must ask ourselves: 1) is the speech at issue related to a matter of â€œpublic concernâ€ and 2) does the employerâ€™s interest in efficiency outweigh the employeeâ€™s interest in communication.
It seems beyond question to me that Mr. Shirvellâ€™s blog addresses issues of public concern. From what I could tell from the postings I read before Shrivel shut down public access to his blog, not one of his opinions is supportable by fact, reason, or common sense. For the most part it reads like the self-aggrandizing screed of a man with a personal obsession and an inexplicable ax to grind. Having said that, the blog postings are Mr. Shrivellâ€™s opinions, just like this note is mine.
In Connick v. Myers, 461 U.S. 138, 148-49 (1983), the Supreme Court held that â€œ[w]hether an employeeâ€™s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.â€ The Court further indicated that matters of â€œpolitical, social, or other concern to the communityâ€ fall within the gambit of â€œpublic concern.â€ Id. at 146; see also Rankin v. McPherson, 483 U.S. 378 (1987).
It is worth noting that when the speech in question is made pursuant to the official duties of the government employee it does not enjoy the same level of First Amendment protection. Garcetti v. Ceballos, 547 U.S. 410 (2006).
Mr. Shirvellâ€™s blog is childish, spiteful, and deplorable, but the subject matter about which he primarily writes (LGBT equality, gender-neutral bathrooms, etc.) concerns precisely the type of political and social issues that the Court has opined falls within the definition of â€œpublic concern.â€ At the same time, these are not statements Mr. Shirvell made pursuant to his position as an Assistant Attorney General for the State of Michigan.
Think of it this way: if his comments were on the opposite side of the spectrum (supporting LGBT rights), we wouldnâ€™t hesitate for a moment to recognize that the subject matter is of public concern.
Balancing the Interests
If Mr. Shirvellâ€™s blog postings contain speech relating to a â€œpublic concern,â€ the only thing that remains is to balance the Stateâ€™s interest in efficiently providing public services against Mr. Shirvellâ€™s interest in unfettered speech.
This strikes me as a close call. Meritorious arguments can be crafted for both positions. Mr. Shirvellâ€™s speech is unrelated to the conduct of his work in the Appellate Division of the AGâ€™s office. He was not criticizing his employer nor even the State of Michigan. The blog was done on personal time using his personal blog. On the other hand, Mr. Shirvellâ€™s blog has created a media firestorm that has forced him to take a leave of absence from his position and resulted in his boss (the Attorney General) taking time away from representing the People of Michigan (supposedly) to defend Mr. Shirvellâ€™s bad behavior. Furthermore, Mr. Shirvellâ€™s conduct calls his judgment and maturity into question.
This would be a much easier call in the event that a Personal Protection Order is issued against Mr. Shirvell or if criminal stalking charges are brought against him. Either of those eventualities would tilt the balance decidedly in favor of the governmentâ€™s interest in efficiency. It is worth noting that in this event the employment termination wouldnâ€™t be based on Mr. Shirvellâ€™s speech, but rather on his conduct.
So whatâ€™s the bottom line? Is Mr. Shirvellâ€™s speech protected? Is that even the most important question to be asking?
Should Mr. Shirvell be dismissed from his position with the AG, I think the State of Michigan could make the case that his speech was impairing the ability of the office of the Attorney General to efficiently provide public services to the People of Michigan. I think a court might find that the Pickering balancing tests tilts in favor of the Stateâ€™s interest. Iâ€™m not convinced this is the best result though. Perhaps the more important question is whether the State should use its power to terminate Mr. Shirvell, if in fact it has it to begin with.
If a PPO is issued against Mr. Shirvell or if he is criminally charged, he should definitely be terminated without delay, but not based on the speech in his blog, but rather on his indefensible (possibly criminal) conduct.
If the decision to terminate Mr. Shirvell is to be based on his speech alone, wouldnâ€™t it be better if we all condemned Mr. Shirvellâ€™s speech, shouted our condemnation from every roof top, but didnâ€™t rely on the power of the State to make our point? Wouldnâ€™t this show that progressives respect the First Amendment and the Constitution, contrary to the ad nausem bloviations of the Tea Party? Wouldnâ€™t our message be stronger if we drowned out Mr. Shirvellâ€™s bigotry with the voices of thousands rather than the voice of his one employer?
Perhaps we shouldnâ€™t give Mr. Shirvell what he so desperately wants by making him into a hero for the religious right and a martyr for the First Amendment. Instead letâ€™s give him what he deserves: our disapprobation, our disgust, and the knowledge that his fifteen minutes in the spotlight are over and that Michigan has resoundingly rejected his sad bigotry.
I wonâ€™t deny that it would certainly be more gratifying to fire Mr. Shirvell and be done with it, but I canâ€™t help but think that progressive and those who advocate for LGBT Michiganians would be better off in the long run if we didnâ€™t.
What do you think?