Monday, September 20, 2010

Inflammatory stupidity is one of the privileges of being a government employee

I'm not sure whether I can make the sparks fly in response to your post on Andrew Shirvell, the anti-gay (and anti-one-paticular-gay-guy) crusading assistant AG in Michigan.  But I will make two points in his defense:

1)  His conduct is not unethical under the Michigan Rules of Professional Conduct; and

2)  He should not be, and probably cannot be, fired for his conduct.

First, I do not believe Shirvell's conduct violates any rule of professional conduct.  You highlight Rule 6.5 as a potential hook to hang Shirvell from.  But as you also note, this rule applies only to a lawyer's treatment of "persons involved in the legal process."  Mr. Armstrong, the object of Shirvell's obsessive scorn, is not such a person.  Thus, the rule does not and cannot apply.  Creepy?  Yes.  Unethical?  I don't see it.

Anyhow, the only effect of imposing a gag order on bigoted speech by lawyers would be to silence bigoted lawyers.  I don't believe this would improve the world at all.  I think we'd be better off if all bigoted lawyers started blogs on which to spew their hate.  And I'm not advancing some abstract idea of letting good ideas win out in the marketplace of ideas.  No, what I think is good about encouraging bigots to speak is that we find out who the bigots are.  It is a nice side-effect of finding out who the bigots are that we also get to learn how stupid most bigots are.  Witness Shirvell's inability to form coherent thoughts in this interview with TV station WXYZ (great call letters!):

2)  Shirvell should not be, and probably cannot be, fired.  The reason he should not be fired is that he did nothing unethical.  He's just a bigoted idiot with an unhealthy (and bi-curious) obsession with a gay collegian.  A government of the people, by the people, and for the people will certainly include bigots.  I'd rather that it include open bigots rather than, um, closeted ones.

The reason he can't be fired is that the government has a very limited ability to fire employees for speech, even ridiculous speech.  (Shirvell's blog unquestionably qualifies as speech.)  Prof. Eugene Volokh sets out the relevant law for the New York Times (in a Room for Debate piece about a NJ transit employee who burned part of a Koran):
In some situations, the government may fire its employees because of their speech, even when the speech couldn't lead to a criminal prosecution. But this government power over employee speech (or symbolic expression), especially off-duty speech on a matter of public concern, is limited.
Under the Supreme Court's precedents, the government may restrict such employee speech only if the restriction is "necessary for [the government employer] to operate efficiently and effectively." That test might be satisfied if, for instance, the employee is in a position in which his speech might undermine public confidence in the employer -- for instance, if he's a spokesman for the employer, or if he's a police officer and the public must be able to count on his fairness in exercising his substantial discretionary authority over the public.
Arguably, Shirvell's speech fits into the exception Prof. Volokh identifies because his speech "might undermine public confidence in the employer."  But I don't think so.  Shirvell's core opinion--that homosexuals are sinners--is one that a substantial minority, or perhaps a majority, of Americans agree with.  (That this opinion seems to be based on Shirvell's hard-core religious beliefs may raise a Free Exercise of religion issue under the First Amendment as well.)  As a government employee, he's got the right to express this opinion.

Some are saying that Shirvell's actions constitute "cyber-bullying."  I confess I don't know precisely what that means.  But this seems closer to "cyber-stalking" than "cyber-bullying," since there isn't the explicit or implicit threat of violence that I take to the essence of bullying, and there is the unhealthy obsession with a more popular person's actions that is the essence of stalking.  In either case, though, it seems pretty clear that Shirvell's actions aren't criminal.

Final point:  if Shirvell were employed in the private sector, he'd probably be fired for his speech and he'd have no recourse against his employer.  It is only because his employer is the government--and therefore his firing requires "state action"--that he has a protected right to speak his mind.  Yet another reason to work for the government if you can.


  1. I don't buy your argument that Shirvell's speech doesn't fit the exception for speech that undermines the public's confidence in the employer. The problem isn't that Mr. Shirvell states his opinion that gay sex is a sin. Presumably, quite a few Michigan employees share that view and could express it without undermining their employer's authority. The problem is that Shirvell's behavior suggests that he lacks the skill and mental capacity to be an effective attorney. Assistant attorneys general are supposed to be able to think rationally and express their opinions clearly and persuasively. Shirvell has publicly demonstrated that he lacks these abilities--go watch the interview where he gets pwned by Anderson Cooper (who's not even a lawyer himself). As I watched it, I was astonished that any state attorney general's office would hire Shirvell--he just lacks basic lawyering skills. His apparent lack of skill and the reports of him essentially stalking a college kid are an embarrassment to the MI AG's office, and even the MI AG tried to distance himself from Shirvell's behavior. So, yes, Shirvell's behavior--not his anti-gay beliefs per se--could easily undermine public confidence in the Michigan AG's office. Therefore, there is a strong argument that the AG could fire Shirvell without violating his First Amendment rights.

  2. The way around this is for the student, possibly his parents based on picketing going on at their house, to get a restraining order. Once this nutjob violates the restraining order (oh, and he will), then he's committed a crime. He can be suspended for that.

    To me, the problem here is that the AG's office would be the ones to prosecute him for violation of stalking or cyberstalking laws - wouldn't they? When you have a person engaging in activity that shades into violation of criminal statute, and that person belongs to the office that is supposed to enforce the statute, you have at the very least a public relations issue. I agree that you CANNOT fire a public employee for speech, even when it borders on hate speech. Violation of criminal statutes, on the other hand, does the job - they just get to decide whether to prosecute him.

    Because it's now a big hoopla, they have to determine whether enforcing the statute against this guy will lead to a civil rights/unfair prosecution suit.

  3. @William: As I understand it, your point is that Shirvell should be fired for his conduct—such as getting “pwned” by Anderson Cooper—rather than the content of his speech, specifically because his conduct has proven him to be mentally incapable of carrying out the duties of an assistant attorney general. I agree in principle that being publicly humiliated by the former host of “The Mole” should get an attorney—any attorney—fired. But it is a pretty fine distinction you are making between speech and conduct, particularly because the questionable conduct occurred only as a result of the controversy surrounding the speech. It looks an awful lot like a pretext. So I don’t think the State of Michigan would feel very confident in relying on this defense if the AG fired Shirvell and he sued.

    @Anonymous: Interesting plan, and it looks like it is being put into effect. I frankly wasn’t aware of Shirvell’s non-blogging activities; to the extent he’s following Armstrong around (in other words, stalking him) a restraining order seems appropriate. But I actually would be surprised if a judge could stop the blogging. Such an order would raise First Amendment issues of its own, including “prior restraint.” Although I have heard of such orders being issued in family cases (i.e., divorces), they have been criticized by First Amendment scholars. So I question whether Armstrong could get a restraining order that prevents Shirvell from publishing his blog.

    Also, a technical point: the attorney general’s office generally does not prosecute crimes, at least not until there is an appeal. I don’t know anything about Michigan’s justice system, but in most states that function is reserved for “district attorneys” or “county attorneys.” It looks like the relevant officer in Michigan is called a “prosecuting attorney,” who is an elected official that is independent of the attorney general. So if your plan were successful, I don’t think there would be any conflict in the prosecutor’s office—at least not at the trial court level.

    Finally, I’ve come up with another reason why I think it might be a bad idea to fire Shirvell: we really do not want this guy to have more free time.


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