First, with the Stupak Amendment, and now, with Adventures in Bigotry, I’m continually in awe of what happens to the Constitution in the hands of Michigan representatives. It’s been an incredibly interesting week of discussion at the University of Michigan Law School. A Michigan Assistant Attorney General, Andrew Shirvell, has for months been stalking and harassing UofM’s openly gay student body president, Chris Armstrong, calling him, inter alia, a racist, elitist Nazi recruiter for the homosexual agenda. Mr. Shirvell has been barred from campus and, as of a couple days ago, the hearing for Mr. Armstrong request for a personal protection order against him has been delayed. This issue became national news over the past week, in major part due to CNN’s coverage and interviews with both Mr. Shirvell and legal analysts.
Likely in response to this controversy, Mr. Shirvell has taken a voluntary leave of absence, and it has been reported that he will face disciplinary action on his return. Why that is or what will happen is entirely unclear. Michigan’s Attorney General has been largely inconsistent when expressing his views on the matter, in the same breath defending and decrying Mr. Shirvell’s conduct, but appears to remain committed to not firing him (personally, I’m having an especially hard time reconciling the Attorney General’s apparent decision to take disciplinary action with his persistent defense of this conduct as protected). Michigan’s Governor has tweeted that, were she still the Attorney General, Mr. Shirvell “would have already been fired.”
The focus of campus debate has been on whether this kind of vitriolic bullying is protected by the First Amendment. This isn’t the first time the University of Michigan has hosted this debate. In the 1989 District Court case John Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989), a university policy aimed at addressing discrimination and harassment was enjoined as an infringement on the free speech rights of the campus community. The policy sanctioned too many things via vague guidelines, and the court found protected speech and conduct had been made subject to the policy during its implementation. Four years later, another Michigan university became the center of a more related First Amendment controversy when the basketball coach repeatedly utilized racial epithets to “motivate” his players. Dambrot v. Central Michigan University, 839 F. Supp. 477 (E.D. Mich. 1993). The same District Court also enjoined this university’s policy against harassment as overbroad and vague, but found the university’s decision to fire the coach raised no constitutional issues. The Sixth Circuit agreed, finding the coach’s choice of words was not protected speech. Dambrot v. Central Michigan University, 55 F.3d 1177 (6th. Cir. 1995).
Both courts noted the following two-part analysis is used to determine whether the public employee’s discharge violated the First Amendment: (1) whether the employee’s speech is on a matter of public concern (determined by a statement’s content, form, and context); and, if so, (2) whether the employee’s free speech interests outweigh the interests of the employer government. If the answer to both parts is yes, the employee’s First Amendment rights have been violated. Both courts found the coach’s speech was not on a matter of public concern and that the university had a right to terminate him for his choice of “motivational” tools.
Just for the sake of discussion, applying this two-part analysis to the issue at hand is a challenge. The test itself, along with Michigan’s anti-harassment statute, is rather subjective. In the case which established this two-part enquiry, the U.S. Supreme Court noted the following: “When an employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” Connick v. Myers, 461 U.S. 138, 146 (1983). Mr. Shirvell has described his comments as part of a political campaign against a public figure. Many arguments have been put forward to combat this view. Other than recount them, or put forward any more, I choose to “suffice it to say.” So, suffice it to say, the threshold question of whether Mr. Shirvell’s comments are on a matter of public concern is the hottest part of the campus-wide and nation-wide debates.
First Amendment jurisprudence and commentary does appear to be fairly settled on one issue, though, which has been mentioned in the context of this debate – that is, essentially, that the answer to hate speech is more speech. In the spirit of that simple yet axiomatic solution, the University of Michigan Law School’s LSRJ chapter has joined with other student organizations in supporting Chris Armstrong as our elected president and as a person deserving of safety and respect in our community. We are also firmly engaged in co-sponsoring educational events on bullying and the inexcusable toll it is taking on campuses across the U.S. Mr. Shirvell and the Attorney General claim to strongly believe criticizing the actions and beliefs of a public official is a constitutionally safeguarded activity. Sounds good to me – shame on the both of you.