Is Shirvell's Firing Justified for Harassing a Publicly-Elected Official?

[Jasongreat]

The assistant Michigan AG can be fired, http://news.yahoo.com/s/ap/us_anti_gay_blog_attorney;_ylt=AptpsUE7SQw36_NVEsyssRGs0NUE;_ylu=X3oDMTN0dGQ5bWpoBGFzc2V0A2FwLzIwMTAxMTA4L3VzX2FudGlfZ2F5X2Jsb2dfYXR0b3JuZXkEY2NvZGUDbW9zdHBvcHVsYXIEY3BvcwM0BHBvcwMxBHB0A2hvbWVfY29rZQRzZWMDeW5faGVhZGxpbmVfbGlzdARzbGsDbWljaGFzc3RhZ2Fj" after all. It won't be the last we hear of this story, he is appealing the decision and the harassee sounds like he is going to continue with a libel and/or slander suit.

 

[D H]

Of course he could be fired. Do note: He has fired for what he did, not what he said or what he wrote. In that sad thread on Shirvell many people wanted him fired, on the spot, for what he said and what he wrote. That thread was sad because of the lynch party mentality displayed in that thread and the lack of understanding of what the First Amendment is all about.

The First Amendment restricts what the US government can do, per the 14 Amendment, it also applies to state governments. It does not restrict what a typical private employer can do. Suppose you are a left wing radical who was fired from a job after your employer found out you helped burn G.W.Bush in effigy. If your employer is any government agency they just violated your First Amendment rights. If your employer is the Republican party or some right wing media outlet, tough luck.

The First Amendment strongly restricted the conditions under which the state of Michigan could fire Shirvell. He was not fired on the spot; he was fired only after receiving due process in the form of a disciplinary hearing. He was not fired for what he said or what he wrote; he fired instead for stalking, harassment, misusing state resources, and lying during his disciplinary hearing.

Many of you in that sad thread conjectured about the nature of Shirvell's job. You wondered how someone this biased could protect "the people". That wasn't his job. His job was to prepare and argue the state's side of appeals of criminal cases. You wondered how an "Assistant Attorney General" would treat underlings. He had no underlings. Read the article referenced in the original post.

A big part of the problem here is the media. There was a lynching party mentality at CNN and elsewhere. Surely they found (or should have found) the same things that I found: That Shirvell argued the state's side in cases appealed to the Michigan Supreme Court and higher, and that the title "Assistant Attorney General" in Michigan is pretty much meaningless. Every attorney in the state Attorney General's office, all 250+ of them (I counted 277) is an "assistant attorney general".

 

[Evo]

Of course he could be fired. Do note: He has fired for what he did, not what he said or what he wrote. In that sad thread on Shirvell many people wanted him fired, on the spot, for what he said and what he wrote. That thread was sad because of the lynch party mentality displayed in that thread and the lack of understanding of what the First Amendment is all about.

What is wrong with people condemning his behavior? His behaviour was dispicable. This is, after all, a forum for people to voice opinions on topics.

This is what I remember people saying in that thread which agrees with the statements below.

"To be clear, I refuse to fire anyone for exercising their First Amendment rights, regardless of how popular or unpopular their positions might be," Cox said in a statement.

But he said Shirvell's conduct went beyond free speech when he showed up three separate times outside Armstrong's Ann Arbor home, including once at 1:30 a.m.

"That incident is especially telling because it clearly was about harassing Mr. Armstrong, not engaging in free speech," Cox said.

His behavior was not protected by the First Amendment, which is why he has been fired.

 

[Al68]

The First Amendment restricts what the US government can do, per the 14 Amendment, it also applies to state governments. It does not restrict what a typical private employer can do. Suppose you are a left wing radical who was fired from a job after your employer found out you helped burn G.W.Bush in effigy. If your employer is any government agency they just violated your First Amendment rights.

That is simply and obviously false. It is logically impossible for "failure to employ" to ever violate the first amendment. The first amendment guarantees only a right to free speech, not a right to employment or a combination of the two.

He was and still is perfectly free to say what he wants. That, not his job, is what the first amendment guarantees.

 

[D H]

He had a job with the state of Michigan. Short of conspiracy or other illegal acts, government employees cannot be fired for what they say or what they write on their own time.

Do you have any understanding of what the First Amendment is about?

 

[Proton Soup]

What is wrong with people condemning his behavior? His behaviour was dispicable. This is, after all, a forum for people to voice opinions on topics.

This is what I remember people saying in that thread which agrees with the statements below.

His behavior was not protected by the First Amendment, which is why he has been fired.

i think DH is spot-on. there is a mentality among certain people that "hate speech" is not protected speech and has to be punished. and that mentality was the prevailing trend in that thread.

 

[Al68]

Do you have any understanding of what the First Amendment is about?

Yes. It prohibits laws that restrict speech. We have discussed this before in that other thread.

What was not provided before as far as I know was an explanation of how declining to employ someone constituted a restriction of their speech if done by government, but not a restriction of their speech if done by a private employer.

In the absence of such an explanation, there isn't much else to discuss.

 

[Al68]

i think DH is spot-on. there is a mentality among certain people that "hate speech" is not protected speech and has to be punished. and that mentality was the prevailing trend in that thread.

I don't remember that being anyone's position in that thread. Can you link the specific post?

 

[Evo]

He had a job with the state of Michigan. Short of conspiracy or other illegal acts, government employees cannot be fired for what they say or what they write on their own time.

Do you have any understanding of what the First Amendment is about?

That's just it, he was found guilty of doing these things while at work. The First Amendment doesn't apply.

The investigation revealed that while at work during normal business hours, Shirvell called Pelosi's office and posted attacks on Armstrong on the Internet. He also lied to investigating assistant attorneys general on several occasions during Friday's disciplinary hearing, Cox said.

"The cumulative effects of his use of state resources, harassing conduct that is not protected by the First Amendment and his lies during the disciplinary conference all demonstrate adequate evidence of conduct unbecoming a state employee," Cox said.

Are you suggesting that he was fired illegally? Are you suggesting that they have violated his First Amendment rights? If you are, can you go into detail because I am obvioulsy not seeing where you're going here.

Sorry DH, but I've looked at this in every possible way and unless the Attorney General's office is falsifying evidence, they are right to have fired him.

I'm thinking that perhaps you didn't read that he was fired for what he did while at work.

 

[D H]

Declining to employ someone is one thing, Al68. It can be quite hard to prove that something illegal is taking place in hiring practices. The proof is almost always statistical. Proving something from a sample size of one is rather challenging.

Firing someone who is already employed is a completely different issue. Do you understand the difference between hiring and firing?

 

[Al68]

Declining to employ someone is one thing, Al68. It can be quite hard to prove that something illegal is taking place in hiring practices. The proof is almost always statistical. Proving something from a sample size of one is rather challenging.

Firing someone who is already employed is a completely different issue. Do you understand the difference between hiring and firing?

Yes. Both "refusing to hire" and "firing" constitute "declining to employ". The difference is whether there was employment previously.

LOL <snide question censored>

 

[D H]

He was found guilty of doing these things while at work. The First Amendment doesn't apply.

Exactly. Or almost exactly. He wasn't tried and found guilty. He was fired as a result of a disciplinary hearing.

Are you suggesting that he was fired illegally?

No! He was rightfully fired for what he did. What he did (being a nuisance at 1:30 AM, stalking, harassment, misusing state resources, and lying during his disciplinary hearing) is not covered by the First Amendment. The Constitution is not a suicide pact."

Note well: He very explicitly was not fired for what he said or what he wrote.

 

[Evo]

Exactly. Or almost exactly. He wasn't tried and found guilty. He was fired as a result of a disciplinary hearing.


No! He was rightfully fired for what he did. What he did (being a nuisance at 1:30 AM, stalking, harassment, misusing state resources, and lying during his disciplinary hearing) is not covered by the First Amendment. The Constitution is not a suicide pact."

Note well: He very explicitly was not fired for what he said or what he wrote.

Ok, we agree there, I think we just crossed in what we were looking at.

 

[D H]

Yes. Both "refusing to hire" and "firing" constitute "declining to employ". The difference is whether there was employment previously.

That is a huge difference, and firing does not consitute "declining to employ".

Some examples:

1. Suppose you are the employee of some county, a heavily Republican county. You are a Democrat. On your own time you help a Democratic candidate. You are fired when your employer finds out about your activities.
2. Suppose you are a teacher at a school. On your own time you write a scathing letter to the editor about the goings-on in the school's administration offices. You are fired the day after your letter appears in the newspaper.
3. Suppose you are the employee of some private business. On your own time you set up a side business that directly competes with your employer. You are fired when your employer finds out about your activities.
4. Suppose you are the employee of some private business. On your own time you write a scathing letter to the editor about the goings-on in top levels of management in that business. You are fired the day after your letter appears in the newspaper.

Examples 1 and 2 are very different from examples 3 and 4. The first two are illegal. The latter two are not. The difference is that the employer is the government in examples 1 and 2, private businesses in examples 3 and 4.

 

[Proton Soup]

I don't remember that being anyone's position in that thread. Can you link the specific post?

just re-read the thread. imo, just on the first few pages you've got what, nismar, and turbo at least implying just that.

but BobG then kind of surprises me. i think he's saying this is illegitimate speech, but we protect it because it is a necessary evil.

In fact, something about DH's post bugged me. The First Amendment doesn't exist to protect ugly, distasteful, politically charged speech with which almost everyone disagrees or hateful speech. It exists to protect legitimate, accurate speech which the government doesn't want people to know. It takes away the authority to decide what's legitimate speech and plain drivel since, given the authority, the government could just classify any speech that criticizes the government to be drivel and suppress it.

then, jack steps up to the plate and nismar backs him up.

in any case, re-read the thread.

 

[Al68]

That is a huge difference, and firing does not consitute "declining to employ".

Just ad the word "further" right before "employ", then. But I never said there wasn't a difference. How big of a difference it is depends on the employment contract. But you have provided no reason why it has anything to do with the first amendment, since the first amendment prohibits laws that restrict speech. It does not require employment by government, and the difference between firing and refusing to hire has nothing to do with it.

Some examples:

1. Suppose you are the employee of some county, a heavily Republican county. You are a Democrat. On your own time you help a Democratic candidate. You are fired when your employer finds out about your activities.
2. Suppose you are a teacher at a school. On your own time you write a scathing letter to the editor about the goings-on in the school's administration offices. You are fired the day after your letter appears in the newspaper.
3. Suppose you are the employee of some private business. On your own time you set up a side business that directly competes with your employer. You are fired when your employer finds out about your activities.
4. Suppose you are the employee of some private business. On your own time you write a scathing letter to the editor about the goings-on in top levels of management in that business. You are fired the day after your letter appears in the newspaper.

Examples 1 and 2 are very different from examples 3 and 4. The first two are illegal. The latter two are not. The difference is that the employer is the government in examples 1 and 2, private businesses in examples 3 and 4.

I agree, and I never said otherwise. If you read my post, you would realize that I never claimed that such firing was not illegal. I said it would not violate the first amendment. Is that difference hard to comprehend?

 

[Al68]

just re-read the thread. imo, just on the first few pages you've got waht, nismar, and turbo at least implying just that.

but BobG then kind of surprises me. i think he's saying this is illegitimate speech, but we protect it because it is a necessary evil.



then, jack steps up to the plate and nismar backs him up.

in any case, re-read the thread.

Well, I'm too lazy to re-read the whole thing, but I re-read enough to see what you're talking about. I had forgotten that part of the thread, thanks.

 

[D H]

but BobG then kind of surprises me. i think he's saying this is illegitimate speech, but we protect it because it is a necessary evil.

No, he was saying that Shirvell's speech was ugly, hateful, crude, evil -- and utterly protected. The First Amendment is not about protecting the rights of people to sing Kum-bay-yah and ask everyone to come together and love one another right now. It is about protecting the rights of people whose thinking is diametrically opposed to everything we all hold dear.

 

[D H]

I agree, and I never said otherwise. If you read my post, you would realize that I never claimed that such firing was not illegal. I said it would not violate the first amendment. Is that difference hard to comprehend?

When a government fires an employee of that government for what the employee said or wrote on their own time, the government is de facto violating that person's First Amendment rights. That this is the case is settled law.

 

[Proton Soup]

No, he was saying that Shirvell's speech was ugly, hateful, crude, evil -- and utterly protected. The First Amendment is not about protecting the rights of people to sing Kum-bay-yah and ask everyone to come together and love one another right now. It is about protecting the rights of people whose thinking is diametrically opposed to everything we all hold dear.

no, i think it's about all these things. and i shudder at the notion of saying that it is about some specific type of speech.

and yes, i realize he was saying the speech was protected. i just don't like the idea that it wasn't the sort of speech the 1st amendment was designed to protect.

 

[Al68]

When a government fires an employee of that government for what the employee said or wrote on their own time, the government is de facto violating that person's First Amendment rights. That this is the case is settled law.

Then you should have no problem whatsoever explaining how that's the case, then.

I'm aware of past court decisions on this matter. But I have not made any claims or arguments about what courts have or have not decided.

I'm asking you to substantiate, or at least explain the logic behind, your claim. The classic "appeal to authority" logical fallacy (that courts have agreed with you) hardly suffices.

Edit: Evo is right, this entire discussion about free speech is off-topic. Needs another thread.

 

[Evo]

Can we get back to the OP, the fact that Shirvel was fired due to ON THE JOB VIOLATIONS?

In other words, let's get back to the OP. No more off topic posting. I probably should restart this entire thread.

 

[Proton Soup]

Can we get back to the OP, the fact that Shirvel was fired due to ON THE JOB VIOLATIONS?

In other words, let's get back to the OP. No more off topic posting. I probably should restart this entire thread.

and also off-the-job violations

 

[Evo]

and also off-the-job violations

Apparently "legally" they felt they had enough to can him. If people want to discuss if there were sufficient legal grounds, that will be fine. All we know is what's in the news, so let's stick to what has been released about his firing.

 

[D H]

There really isn't that much to discuss on that topic, Evo. He called Nancy Pelosi about Armstrong while on the job, to what end I haven't the foggiest. He stalked and harassed Armstrong, including at 1:30 AM (i.e. not on the government time card). He apparently lied during his disciplinary hearing. He was fired for all that, end of story. That topic has no legs.

 

[Evo]

Shirvel is appealing, so I'm sure if they are wrong it will come out.

Is he? I can't find any legitimate news sources that say this. The article cited in the OP did not say this. Every new article I have found quote Shirvell's attorney as saying that Shirvell has not yet decided whether he will appeal the decision. The OP said that he was appealing without any supporting evidence.

 

[Proton Soup]

But that's all we have to go on concerning the reasons for his firing. I assume the AG's office is aware this is under the microscope and wouldn't have made a decision unless they felt it could hold up. Shirvel is appealing, so I'm sure if they are wrong it will come out.

there was some delay in coming to this decision. you could interpret it a couple of ways. one is that they were being extra diligent. another is that they didn't feel they had a good case on the out-of-office stuff and so had to amass some more conventional (in-office) reasons. and the obvious question there is, if these were especially egregious before, then why wasn't he canned before this became a public issue? to that extent, he will probably argue that the in-office reasons are contrived or exaggerated.

 

[Evo]

there was some delay in coming to this decision. you could interpret it a couple of ways. one is that they were being extra diligent. another is that they didn't feel they had a good case on the out-of-office stuff and so had to amass some more conventional (in-office) reasons. and the obvious question there is, if these were especially egregious before, then why wasn't he canned before this became a public issue? to that extent, he will probably argue that the in-office reasons are contrived or exaggerated.

So we wait.

 

[Evo]

Is he? I can't find any legitimate news sources that say this. The article cited in the OP did not say this. Every new article I have found quote Shirvell's attorney as saying that Shirvell has not yet decided whether he will appeal the decision. The OP said that he was appealing without any supporting evidence.

AAARGGH! You deleted my post! You hit edit instead of quote!

No one else knows what I'm talking about. Mentors can accidently edit instead of replying and DH accidently edited my reply, which makes me look crazy.

Ten demerits DH! Go sit in the corner !

 

[D H]

Ooops! Stupid edit button right next to the quote button!

Looks like it is time for me to go to bed.