For the last few months, Andrew Shirvell, an assistant attorney general of Michigan, has crusaded against the “radical homosexual agenda” of 21-year-old Chris Armstrong, the openly gay student-body president of the University of Michigan.

Shirvell has verbally attacked Armstrong at campus events, demonstrated outside the student’s home, and has bashed the kid on his personal blog, Chris Armstrong Watch.

On that blog, which is now accessible only by invitation, Shirvell has called Armstrong a “privileged pervert” and “Satan’s representative on the student assembly.” He’s accused Armstrong of “anti-Christian behavior” and “mocking God.” One post included a photo of Armstrong with the word “resign” written across his face and a swastika superimposed on a gay pride flag; an arrow pointed from the flag to Armstrong. You can see it here.

Job on the Line

Shirvell appeared last month on CNN, on “Anderson Cooper 360,” to defend his views and behavior, telling Cooper, “Chris Armstrong is a radical homosexual activist who got elected partly funded by the Gay and Lesbian Victory Fund to promote a very deeply radical agenda at the University of Michigan.” Shirvell later added that he is a “Christian citizen exercising [his] First Amendment rights” and that “this is nothing personal against Chris.” (Armstrong has also appeared on the show.)

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Since then, the sun has set on Shirvell’s cause. He’s on a personal leave of absence from the attorney general’s office, the University of Michigan just banned him from campus, and a state judge will rule next week on a request, from Armstrong, for a personal protection order against him. What’s more, Shirvell is the subject of unanimous condemnations from the Michigan Civil Rights Commission, the Ann Arbor Human Rights Commission, and the Ann Arbor City Council.

His job is on the line, too. Michigan Governor Jennifer Granholm tweeted a few weeks ago that, “If I was still Attorney General and Andrew Shirvell worked for me, he would have already been fired.” David Leyton, the Democratic nominee for state attorney general, echoed Granholm, and a Facebook page, liked by over 16,000 people, maintains that Shirvell’s “long history of bigotry makes him unfit to represent the state of Michigan.”

Meanwhile, Mike Cox, the state attorney general, has refused to fire Shirvell. He released a statement a few weeks ago saying that Shirvell’s “immaturity and lack of judgment outside the office are clear,” but later told CNN that the First Amendment protects him — that public employees do have the right to “express what they think and engage in political and social speech.”

Cox is right.

The Legal Issues

Shirvell may be on thin ice, legally, for a variety of reasons (for example, his conduct towards Armstrong could cause him to be charged with harassment or stalking), but the First Amendment does protect his blogging. To make sense of this, it’s helpful to keep a few things in mind.

First, the free speech clause protects the right of a person to speak without government interference. Speech includes blogging and others forms of online expression. That means, for example, a private employer can fire an employee because of his blogging, but a public employer, doing the same thing, might run afoul of the First Amendment. As an assistant attorney general, Shirvell is a public employee entitled to protection.

Second, the Supreme Court has ruled that a public employer may impose some restraints on the expression of its employees, on the theory that the government, like private employers, needs a significant degree of control over the management of its personnel and internal affairs. Still, significant does not mean unlimited.

In a series of cases, beginning with Pickering v. Board of Education, in 1968, the Court has created a balancing test to weigh the employee’s speech interests against the government’s interests in providing an efficient service to the public. Out of that series came a few general principles, applied here to online expression.

Public employees have a right to blog on their own time on topics unrelated to their employment. They also have a right to blog on their own time on topics related to their employment, if the topics are matters of public concern. Finally, the First Amendment does not protect them at all if they are blogging in the course of their regular duties, rather than on their own time.

Blogging During Work?

Against that backdrop, if the attorney general tried to fire Shirvell, the courts would call upon the First Amendment and likely would focus on whether he was blogging on his own time on topics unrelated to his employment. Shirvell has said a number of times that he blogged only at home, after hours, and Cox himself told CNN that Shirvell’s job performance has been satisfactory. It’s safe to say, too, that the content of the blog posts, on religion and homosexuality, were unrelated to his employment. In other words, they did not comment on the functioning of his workplace.

In turn, though, the attorney general’s office might argue that Shirvell’s blogging, regardless of the content, is related to his employment because it caused a substantial disruption in the workplace. After all, Cox had to investigate the issue and respond personally, the media blitz brought into question the impartiality and professionalism of the office, etc.

That would be a hard sell, and I doubt the courts would buy it, no matter any disruption, because Shirvell was using his blog to engage in social and political speech, which occupies what the Supreme Court once called the “highest rung of the hierarchy of First Amendment values.” Thus, it’s entitled to special protection.

All of which means Andrew Shirvell, the state attorney who picked on a college student, the Christian who superimposed a swastika on a gay-pride flag, the guy who said it wasn’t personal while making his attacks, is protected by the First Amendment.

Freedom for the thought that we hate, indeed.

Jonathan Peters is a doctoral student and the Frank Martin Fellow at the Missouri School of Journalism, where he’s specializing in the First Amendment. He has a law degree from Ohio State University and has written on legal issues for a variety of newspapers and magazines, including the Plain Dealer, Columbus Dispatch and the National Jurist. Beyond journalism, Peters has worked at every level of the federal judiciary, with externships at the U.S. Supreme Court, the U.S. Court of Appeals for the Sixth Circuit, and the U.S. District Court for the Southern District of Ohio. He can be reached at jonathan.w.peters@gmail.com.

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