Featured Guest Blogger Sarah Hinchliff Pearson

When Speech Can Get You in Trouble, Despite the First Amendment: The Shirvell Case

When an employer restricts an employee’s right to speak, by banning employee blogs or limiting what employees can say on social media sites, it is common for people to say it is a violation of the First Amendment right to free speech. This is not true. The First Amendment only protects people from government restrictions on speech. Private employers have no First Amendment limitations. They can fire employees for their speech without any constitutional consequences. (Employees are protected from being fired for some speech – like whistleblowing or union involvement – but these are statutory and unrelated to the First Amendment.)

But what happens when the government is the employer? Surely that must present a First Amendment issue since it is the government that is restricting the speech. In the past month, the scope of First Amendment protection for public employees has taken center stage in the controversy surrounding Michigan Assistant Attorney General Andrew Shirvell.

Shirvell had a blog dedicated to attacking an openly gay student at the University of Michigan. The blog is now password-protected, but it was available to the public on the Internet for about six months. Among other things, the blog accused the college student of engaging in sexual escapades in public places, attempting to convert the Michigan student body to homosexuality, and leading a widespread conspiracy to promote what Shirvell deemed the “homosexual agenda.” In addition to blogging, Shirvell also targeted the student by going to his house, following him on Facebook, and contacting his employer. Shirvell eventually attracted national media attention, and he was a guest on Anderson Cooper’s news program on CNN (see picture here), where he reiterated his attacks on the student and attempted to justify his actions.

Shirvell took a personal leave of absence from his job at the state attorney general’s office after going on CNN. When people called for Shirvell to be fired for his antics, Michigan Attorney General, Mike Cox, initially said Shirvell had a constitutional right to say what he wanted outside of work time. Oh, if only it were so simple.

For much of the 20th century, the government had free reign to fire employees for their speech. As Justice Oliver Wendell Holmes famously said, “A policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” The Supreme Court began to chip away at the discretion of government employers to control speech in the 1950s, when the Court held the state could not require its employees to take an oath that they had never been affiliated with Communism. It is now well-established that public employees enjoy limited First Amendment protection for their speech.

Over time, the courts have developed a test for determining whether an aggrieved public employee has a First Amendment claim against its government employer. First, the court must determine whether the employee spoke as a citizen on a matter of public concern such as education policy or government malfeasance. If not, (for instance, if the speech relates to a personal employment matter or if the employee was speaking pursuant to his or her role as a government employee), the employee has no First Amendment cause of action. If the speech does address a matter of public concern, then the court must assess the government’s justification for treating the employee differently from the general public. The Supreme Court itself has acknowledged how difficult this inquiry can be, and applying the test to Shirvell’s speech demonstrates why the outcomes of these cases are often hard to predict.

The first threshold – whether Shirvell is speaking as a citizen – is easy. Shirvell was obviously not speaking pursuant to his job duties as a state attorney on his blog. The question of whether he was speaking on a matter of public concern is more difficult. The Supreme Court has said this inquiry is determined based on the same standard used in invasion of privacy cases. If the matter is of general interest and value to the public, it is subject to some First Amendment protection. Shirvell’s speech is arguably political to the extent it addresses a larger “homosexual agenda” in society. But there is also a strong argument that his speech is simply an individual attack on one person’s sexual orientation, which has no value or interest to the public at large.

Even assuming Shirvell’s speech is considered to address matters of public concern, the court would then conduct a balancing test, weighing his right to political expression against the government’s interest in maintaining an efficient and effective workplace. The facts are quite similar to a case in the Second Circuit Court of Appeals, where a policeman working in New York City was fired for anonymously distributing racist and anti-Semitic materials. In that case, the court said the government was justified in firing the employee because the effectiveness of the New York Police Department depended on the respect and trust of the community, which meant the police could not be seen as biased against certain segments of the population. Similarly, as officers of the court, the legitimacy of the state attorney general’s office could be compromised by the hateful and discriminatory speech of one of its lawyers.

The Michigan Attorney General has apparently rethought his position on the issue after his initial statement because Shirvell has since been fired from his position as Assistant Attorney General. The incident shows how the knee-jerk reaction of crying afoul under the First Amendment might make for a good sound byte but not necessarily a valid argument.