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

[Evo]

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

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

I'm laughing so hard it hurts. I was reading my post and going "what?". And considering how profound my posts are, I'm sure it is a great loss to mankind.

 

[D H]

I made my post, stepped out of the room, came back in, and read your reply. "Wait a second! That's not ...

... right"

Ooops.

 

[Evo]

I made my post, stepped out of the room, came back in, and read your reply. "Wait a second! That's not ...

... right"

Ooops.

Oh, and you're right, btw, he hasn't decided yet.

 

[mugaliens]

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.

Absolutely correct! His speech, his freedom to speak, his right to speak, is indeed utterly protected. His employment, however, is only conditionally protected:

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.

Absolutely not, although it does depend on the nature, intent, and frequency of what the employee is saying. An offhand comment overheard by a reporter in a coffeeshop about one's boss sometimes being a jerk, even if that boss is the President, is held in a different light by the courts than a website created by the employee to intentionally convince the masses that their boss is a jerk.

Certainly false comments can subject an employee to reprimand, termination, or even lawsuits for slander.

1A rights do not protect your job from being canned if you make disparaging remarks about your employer or his policies, regardless of whether your employer is a small business, AIG, or a local, county, state, or federal government. In fact, most employment contracts, including those within government circles, include clauses allowing for termination on this basis.

The Whistleblower Act doesn't protect employees who make disparaging remarks; it protects employees who report illegal wrongdoing. One can like, even enjoy their employer, but if they're conducting illegal dumping operations, employees have both a fiduciary duty to the stockholders of the company, as well as a civic and legal duty to the community, to report the wrongdoing.

 

[D H]

An offhand comment overheard by a reporter in a coffeeshop about one's boss sometimes being a jerk, even if that boss is the President, is held in a different light by the courts than a website created by the employee to intentionally convince the masses that their boss is a jerk.

If your (direct) boss is the President, an offhand comment overheard by a reporter in a coffee shop (or overheard by a reporter embedded with your command) can get you fired. On the other hand, if you are a lowly civil servant many times removed from the President, writing scandalous stuff on your own time about the President will not get you fired. Some of the 911 truthers were civil servants. Did they get fired? No.

There is a big difference between those executive grade jobs and GS pay scale civil servants. Get high enough in the executive grade and you have to hand in your letter of resignation, signed but not dated, when you accept some new appointment. Run of the mill civil servants are strongly protected from political shenanigans on the part of their superiors.

Certainly false comments can subject an employee to reprimand, termination, or even lawsuits for slander.

Of course. The First Amendment is not absolute. Then again, have you heard of any civil servant 911 truthers who were fired because of some blog they wrote about that topic?

1A rights do not protect your job from being canned if you make disparaging remarks about your employer or his policies, regardless of whether your employer is a small business, AIG, or a local, county, state, or federal government. In fact, most employment contracts, including those within government circles, include clauses allowing for termination on this basis.

Wrong, at least on the part of government employees. Read the Michigan code of conduct for employees. It very specifically addresses first amendment rights of state government employees.

That governments cannot fire employees for protected speech made on the their own time is settled law. See http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=391&invol=563", for example.

Speaking of settled law:

The classic "appeal to authority" logical fallacy (that courts have agreed with you) hardly suffices.

Where is that dang ROTFL smiley? The courts, the Supreme Court in particular, are the ultimate decision makers regarding the constitutionality/unconstitutionality of some question. Your opinion doesn't count at all. Nor does mine. Nor does that of some political pundit. Our opinions matter only to the extent that we can vote for judges or vote for politicians who have the power to appoint judges. Ultimately, the only opinions that do count are those of the judges who decide on cases. This is not an "appeal to authority" logical fallacy. It is the way our country works.

 

[Al68]

Where is that dang ROTFL smiley? The courts, the Supreme Court in particular, are the ultimate decision makers regarding the constitutionality/unconstitutionality of some question. Your opinion doesn't count at all. Nor does mine. Nor does that of some political pundit. Our opinions matter only to the extent that we can vote for judges or vote for politicians who have the power to appoint judges. Ultimately, the only opinions that do count are those of the judges who decide on cases. This is not an "appeal to authority" logical fallacy. It is the way our country works.

That's not the way honest political debates work. In an honest political debate, the opinions of others, SCOTUS in this case, are the opinions that "don't count". That's why it's a logical fallacy to use them.

And it's pretty disgusting as well. Substituting a court's opinion for honest debate, as if the debate is "settled" by the court's decision, is grossly contrary to "by, for, and of the people".

Should we just eliminate this forum altogether, since PF members don't get to pass laws, so our opinions on them "don't count", only the opinions of lawmakers count, that's "how our country works"? Can you even be serious with this nonsense?

Where is that dang "That's so disgusting" smiley? Oh, is this it:

 

[BobG]

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.

Actually, #1 is illegal, #3 is legal. #2 and #4 may be illegal or legal, depending on the details.

As long as #2 is a letter written by a private citizen, the teacher can't be fired, even if some of the students, parents, and other school employees happen to know the letter writer is a teacher. If the letter is written by a teacher of the school, firing the teacher could be legal, since the teacher is representing the school without their permission. In other words, the legality or illegality could depend solely on how the teacher signed the letter.

In Shirvell's case, pursuing his causes while at work means his actions could be interpreted as representing the Michigan AG Office and he could be fired.

#4 could be legal or illegal using the same rationale as for #2, but with more restrictions (i.e. - did the letter writer reveal proprietary information that only an employee could know, etc). Actually, many of those same restrictions would apply to #2 (a DoD employee revealing classified information, etc), except FOIA makes it a lot harder for the government to protect info than private companies.

For example, if a person is a member of a group trying to preserve local parks in the community and the person's employer is trying to buy one of the parks from the city to build a new shopping mall, the person shouldn't be fired for writing a letter for his organization criticizing the idea of the city allowing a park to be converted to a shopping mall. In fact, if he's signing the letter as a member of the organization, his letter isn't even a reliable indication that he opposes selling this particular park to his company; only that he's committed enough to preserving parks in general to join the group.

 

[D H]

That's not the way honest political debates work. In an honest political debate, the opinions of others, SCOTUS in this case, are the opinions that "don't count". That's why it's a logical fallacy to use them.

No, it is not. While you are entitled to your own opinions, you are not entitled to your own facts. When you say something that is factually wrong, that that is your opinion does not change the fact that what you said was factually wrong.This, for example, is factually wrong:

It is logically impossible for "failure to employ" to ever violate the first amendment.

So is this:

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.

You are not the one who decides that whether such firings violate the First Amendment. Your statement that "it would not violate the first amendment" is factually wrong.

Suppose instead you had said something along the lines of "I don't like how broadly the courts interpret the First Amendment. I think we need to narrow its scope." Now that is fine. That would be a starting point for a valid debate. We could talk about mechanisms to change the nature of the courts.

 

[Evo]

Violating your employers "Code of Conduct" can get you fired. Codes of Conduct can be very specific. If it is a violation of the COC to use your computer to access the public internet, you can get fired for it. Not adhering to dress codes can get you fired. What you say can get you fired. One of the best managers we had in the training center got fired for telling a joke, and it wasn't even off color. Some new guy was about to be fired for failing training, so he claimed he found that the instructor's jokes were offensive to him, although everyone else agreed the jokes were fine.

 

[BobG]

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.



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

in any case, re-read the thread.

Yes. The Constitution isn't designed to protect criminals or pointless hate speech, etc. It's designed to prevent innocent people from being convicted of crimes they didn't commit or from improperly categorizing an unpopular political position as being a crime against the state, etc.

For example, when you consider a law such as random sobriety checkpoints, it's not the rights of drunk drivers you're concerned with - it's the rights of the sober drivers that also have to stop at these checkpoints.

In the case of speech, the right to make legitimate speech is protected by prohibiting the government from deciding whether a speech is legitimate or not (or at least places serious restrictions on it). You accept the bad to preserve the good.

I think that's an important distinction when it comes to laws such as Arizona's mandatory ID laws, laws that allow the government to confiscate property of suspected drug smugglers, etc. They sound good as long as the guilty are the only ones affected, but that's virtually never the case.

I think that's an important distinction when it comes to laws such as Arizona's mandatory ID laws, laws that allow the government to confiscate property of suspected drug smugglers, etc. They sound good as long as the guilty are the only ones affected, but that's virtually never the case.

 

[Al68]

No, it is not. While you are entitled to your own opinions, you are not entitled to your own facts. When you say something that is factually wrong, that that is your opinion does not change the fact that what you said was factually wrong.

What facts? That the courts disagree with me? I have never disputed that despite your bait and switch tactics. I also never said that firing someone wouldn't violate state law, despite your bait and switch tactics to misrepresent my statements.

This, for example, is factually wrong:

It is logically impossible for "failure to employ" to ever violate the first amendment.

Yet you seem to be unable to show why. Note that "it's logically impossible" does not mean that "no court could rule that way".

So is this:

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.

That's exactly what I said, and you know it.

You are not the one who decides that whether such firings violate the First Amendment.

What are you talking about? I don't have the right to an opinion? Or it's automatically wrong because the courts disagree with it? Or it's automatically wrong because the court's opinion is legally binding while mine is not? Pick your fallacy.

Your statement that "it would not violate the first amendment" is factually wrong.

Your repeated failure to show otherwise notwithstanding?

Suppose instead you had said something along the lines of "I don't like how broadly the courts interpret the First Amendment..."

I made no claim regarding how the courts interpret the first amendment. I claimed that firing someone would not violate the first amendment.

You have no offered no logical argument to support the claim that firing someone would violate the first amendment. The fact that courts have ruled so is not a logically valid argument.

Can you explain how firing someone could violate the first amendment or not?

 

[D H]

What facts? That the courts disagree with me? I have never disputed that despite your bait and switch tactics.

How does relying on precedence, the very heart of the common law system, connotate bait and switch tactics? You don't seem to understand the concept of precedence. I don't have the time, and this is not the place, to give you the civics lessons which you apparently missed in school.

 

[Gokul43201]

The two of you (D H and Al) are addressing slightly different issues. Al wants to debate the logic, where precedence is irrelevant. D H is only concerned about the correct legal interpretation, for which the decisions of the courts are paramount. I think the theoretical (and I don't mean that disparagingly) discussion that Al is interested in is less directly relevant to this thread (and may be worth pursuing in the previous thread, if still open, or a new one).

 

[CRGreathouse]

I was going to make the same point, but I didn't want to get into the middle of this. It's clear that you're arguing different things.

 

[Al68]

How does relying on precedence, the very heart of the common law system, connotate bait and switch tactics?

As is obvious to the last two posters, we are talking about two different things. That's what "bait and switch" means. And since I find it impossible that you honestly cannot comprehend what is obvious to me and the last two posters, I have to assume you are simply dodging the issue on purpose.

You don't seem to understand the concept of precedence. I don't have the time, and this is not the place, to give you the civics lessons which you apparently missed in school.

Ad hominem arguments and snide remarks aren't logically valid arguments, either.

Can you explain how firing someone could violate the first amendment or not?

I'll take your response as a big "NO".

 

[nickyrtr]

Read the Michigan code of conduct for employees. It very specifically addresses first amendment rights of state government employees.

So are you saying that if Jennifer and Scott Petkov were State of Michigan employees, they could not be fired for this?: http://www.myfoxdetroit.com/dpp/news/the_edge/dying-girl-taunted-by-neighbors-in-trenton" .

If that happened, do you really think the AG or anyone else would go to great lengths to emphasize that the Petkovs have the right to free speech? The only reason "free speech" is being brought up in the Shirvell case is because of who the target of his harassment is.

 

[D H]

As is obvious to the last two posters, we are talking about two different things. That's what "bait and switch" means.

Do cut the garbage, please: Stop throwing loaded terms like "bait and switch" around.

We are discussing different things. You don't care about precedence; I do. My rationale for caring about precedence is simple: Precedence is the heart and soul of our common law system. As Gokul said am "only concerned about the correct legal interpretation, for which the decisions of the courts are paramount." You appear to be arguing that we should move toward a European civil law system.

To caricaturize the two systems, in civil law almost all cases are unique while in common law almost all cases are carbon copies of some other case. In civil law each case has its own extenuating circumstances, its own subtleties. Judges in civil law have to pay attention to these unique details. In common law each case is in some way similar to some other previously decided cases. Judges in common law have to pay attention to that historical precedence.

Common law requires that one look for the commonality with settled law. In this case, the settled law is very clear, as is the rationale for that settled law. In the bad old days of the 1800s almost every government job was a political appointment. Back then, if you wanted to be a garbage collector you needed to find the government employee in charge of hiring garbage collectors and pay the appropriate bribe. That person filtered a share of those bribes up. The people at the top became very, very rich. Google "Boss Tweed" for the prototypical example of patronage gone wild in the 19th century.

Civil servant reform ended all of that. The Hatch Act placed even more restrictions on what government employees cannot do but at the same time placed restrictions on what civil servants are allowed to do (and cannot be fired for doing). Topmost amongst those protected activities is the ability to "express his or her opinion privately and publicly on political subjects" (Hatch Act, Sec. 734.203).

The same concepts percolate down to state, county, and local governments. The Michigan state employee's code of conduct is for the most part statements regarding what a state employee cannot do. The one exception to this list of "cannots", things that can get someone fired) is a statement regarding a protected behavior, a "cannot" that restricts the state (source: http://courts.michigan.gov/mji/resources/ModelCodeOfConduct.pdf):

I am free to participate in political activities during non-working hours as long as such activity does not use or appear to use my position or court in connection with such activities.​

So what does this have to do with Shirvell? He was participating in political activities. The law doesn't say that the political activities have to be about important politics. It just says "political activities." What the courts deem to be political activities is a very, very, very broad topic. Writing a letter to the editor of your local tiny newspaper is, or can be, a political activity in the eyes of the courts. So can writing a blog.

 

[Evo]

Going back to the OP and the fact that he was fired for violating restrictions ON THE JOB. Why is the First Amendment even being brought up?

This is about what he did ON THE JOB. Am I wrong? Was it stated that he was fired for what he did OFF THE JOB? If I missed that, someone please post it now.

This thread hasn't been on topic since the OP. I don't recall a thread going this bad in a long time. If I've missed where it was stated that he was fired for off duty activities, I will be glad to admit I am wrong.

 

[D H]

So are you saying that if Jennifer and Scott Petkov were State of Michigan employees, they could not be fired for this?: http://www.myfoxdetroit.com/dpp/news/the_edge/dying-girl-taunted-by-neighbors-in-trenton" .

Oh, please. Do you have any more non sequiturs to throw around?

 

[turbo]

Going back to the OP and the fact that he was fired for violating restrictions ON THE JOB. Why is the First Amendment even being brought up?

This is about what he did ON THE JOB. Am I wrong? Was it stated that he was fired for what he did OFF THE JOB? If I missed that, someone please post it now.

He did things (actions) that went far beyond free speech, and crossed over into stalking and harassment, if the news accounts are accurate. That is enough to get him fired. Is there a good reason to parse all the arguments about why he should have been fired?

 

[nickyrtr]

Oh, please. Do you have any more non sequiturs to throw around?

Why is that a non sequitur? Legally speaking, what is the difference between Shirvell harassing the guy at UM and the Petkovs harassing their neighbors?

 

[Evo]

He did things (actions) that went far beyond free speech, and crossed over into stalking and harassment, if the news accounts are accurate. That is enough to get him fired. Is there a good reason to parse all the arguments about why he should have been fired?

So is this an issue of free speech violations? It was stated that he wasn't fired for what he did on the job?

Closing thread and deleting OT posts if evidence showing that the AG's office did not say he was fired for what he did on the job. This isn't about "what if" or "maybe if", this is about what has been stated as reason.

 

[D H]

Why is that a non sequitur? Legally speaking, what is the difference between Shirvell harassing the guy at UM and the Petkovs harassing their neighbors?

Let me count the ways:

1. The target of the Petkovs harassment was a child. Shirvell's target was an adult.
2. The Petkov's adult targets were private citizens. Shirvell's target was an adult who held a publicly-elected position. That it was a ridiculously lowly position is irrelevant. The Supreme Court makes a big distinction between adult elected public officials from private citizens.
3. Harassment is not protected speech. The disciplinary hearing found exactly that regarding Shirvell's activities at 1:30 AM are not protected speech.

 

[Evo]

Let me count the ways:

1. The target of the Petkovs harassment was a child. Shirvell's target was an adult.
2. The Petkov's adult targets were private citizens. Shirvell's target was an adult who held a publicly-elected position. That it was a ridiculously lowly position is irrelevant. The Supreme Court makes a big distinction between adult elected public officials from private citizens.
3. Harassment is not protected speech. The disciplinary hearing found exactly that regarding Shirvell's activities at 1:30 AM are not protected speech.

Publicly elected official? He was President of the student body of a University. He was not a publicly elected official.

This thread is closed.