Why The First Amendment Doesn’t Protect Anti-Gay Harasser Andrew Shirvell

After spending much of the week refusing to discipline an assistant attorney general who launched a bizarre harassment campaign against the first openly-gay president of the University of Michigan student body, Michigan Attorney General Mike Cox (R) finally announced today that his subordinate would face a disciplinary hearing:

Cox spokesman John Sellek said, however, Andrew Shirvell will be the subject of a disciplinary hearing after he returns to work at an undetermined future date. . . .

Cox said he hadn’t earlier read all of Shirvell’s blog, “Chris Armstrong Watch,” which dogs Armstrong, the 21-year-old, openly gay president of U-M’s student government and accuses him of “anti-Christian behavior,” “mocking God,” promoting homosexuality and trying “to recruit your sons and daughters” into the gay lifestyle.

“I’m at fault here,” Cox said. “I’ve been saying for weeks that (Shirvell’s) been acting like a bully, that his behavior is immature, but it’s after-hours and protected by the First Amendment.”

Cox’s prior assertion that Shirvell enjoys First Amendment protection was always a little bizarre.  While the First Amendment does provide a fairly robust shield to public employees who engage in political advocacy during their time off, it should not apply to someone who engages in a public campaign of harassment and stalking a single individual because of their sexual orientation.

In Rankin v. McPherson, the Supreme Court established that even the most awful forms of speech on a matter of public concern cannot themselves be the sole basis for firing a public employee.  In that case, a clerical official in a local police station was fired after she commented to a co-worker that if someone tries to assassinate President Reagan again, she hopes they “get him.”  The Supreme Court deemed this to be protected speech, despite the inexcusable nature of the comment.  But that is hardly the entirety of the Court’s analysis.

As Rankin makes clear, “the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose.”  Most significantly for Shirvell’s case, statements which publicly discredit a government agency are much more likely to be firing offenses:

Nor was there any danger that McPherson had discredited the office by making her statement in public. McPherson’s speech took place in an area to which there was ordinarily no public access; her remark was evidently made in a private conversation with another employee. There is no suggestion that any member of the general public was present or heard McPherson’s statement. Nor is there any evidence that employees other than Jackson who worked in the room even heard the remark. Not only was McPherson’s discharge unrelated to the functioning of the office, it was not based on any assessment by the Constable that the remark demonstrated a character trait that made respondent unfit to perform her work.

Unlike the fired employee in Rankin, Shirvell has gone out of his way to publicize his views.  He launched a hate blog attacking a gay undergraduate student, did multiple press interviews and even appeared on prime time TV news.  Gay Michiganders should worry about the kind of justice Shirvell would advocate for on their behalf, and all Michiganders should worry that their legal interests are being advanced by an obviously unstable individual.

To be clear, just like the First Amendment protects inexcusible verbal attacks on President Reagan, it also permits state employees to hold anti-gay views and to express those views in most settings.  When a single state employee reasonably causes the state’s residents to doubt the competence and the motivations of an agency, however, that agency has the right to let him go.