So, despite this truly despicable behavior, Shirvell is still an Assistant Attorney General. Though as of this morning, he was apparently suspended (update: it's apparently a "leave of absence"). His boss, Attorney General Mike Cox has lightly condemned the behavior as showing "immaturity and a lack of judgment", but also saying that becuase it's not on work time, Shirvell has a First Amendment right to say these things. In reaction to the order from Gov. Granholm to suspend him, Cox says: ""I don't know why she's so freaking irresponsible. ... she went to Harvard Law School," Cox said. "The civil service rules are a huge shield for free speech and she knows that." Cox's views reflects a broad misconception about the First Amendment held by, I'd argue, most US citizens - one which I'd like to clear up.
First I'd like to make a general, perhaps obvious point: Just because something is in fact "speech" does not mean it's protected by the First Amendment. For example, there's harassment law. You've probably seen enough Law & Order to know there are hearsay rules - things you just can't say in court, and most famously, no yelling "Fire!" in a crowded theater. Additionally, if the government has a reason to stop speech which does not refer to content, even "protected" speech doesn't raise a First Amendment issue. I'll illustrate with an example my First Amendment prof likes to use in class: If a guy is standing in Central Park with a sign that says "Impeach Obama," and a cop asks him to move, is that a First amendment issue? It depends on the cop's motives. If the cop asks him to move because he doesn't like the sign or if he's afraid others won't like the sign, then we've got a problem. If the cop asks him to move because it's Octboer 1st at 2PM and every 1st of the month at 2PM the city sprays insecticides, then there's no First Amendment issue. It's not just that the signholder loses in court, it's that he doesn't even make it to trial. Similarly here, for Cox to blithely say that Shirvell has a First Amendment right to say these things is kind of careless. It's not entirely certain that he does, and the analysis has to run deeper than throwing up his hands and yelling "Free Speech!"
The primary case illustrating what Cox has the authority to do about Shirvell is called Pickering v. Board of Education (1968). Pickering involves a teacher that wrote into a local newspaper to complain about the School Board's policies, primarily allocation of funds between education and athletics. The case held that "absent proof of false statements knowingly or recklessly made by him, a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment." A couple cases have come along later, namely Connick v. Myers (1982) and Garcetti v. Ceballos (2006), which have limited this holding. Essentially, after Garcetti, if speech is made pursuant to employment or is only of personal, not public, interest it is not protected. For example, if someone complains about how unfair it is that she personally is forced to transfer offices and is then fired, that's fine (Connick), or if an Asst. DA complains publicly about the legitimacy of a warrant, he can be fired (Garcetti).
Ok, so how does this map to Shirvell? First off, I doubt Shirvell passes the first test in Pickering. He's made public statements on his blog and elsewhere that are provably false, and that he must know are false, or if not, he'd be reckless in not knowing. So that's the threshold question. If he fails this test, the State can essentially fire him with impunity. Next question: is Shirvell engaging in speech of general public interest as a private citizen? I can probably buy this, but it's kind of a stretch. Shirvell keeps calling it a political campaign, but as Anderson Cooper pointed out, neither one of them is campaigning for anything. Still, Shirvell claims he's writing the blog on his own time, and I suppose if Armstrong were putting forth a Satanic, homosexual agenda, it would be worthwhile information for the public to know. So ok, we'll give him that.
The final question, assuming we make it this far, is a little stickier. Is he making statements pursuant to his employment? In the traditional sense, probably not, since he's not talking about a case or anything. But his duties as AAG are very broad. What if he has to prosecute a hate crime against a gay kid, for example? Clearly he's not going to do a very good job. I'm not sure this is enough under Garcetti, but again, I don't believe we make it this far anyway.
As a final point, I'm not sure the First Amendment gets implicated in a firing here at all. Remember the guy with the sign and the insecticide? Assume Shirvell's looking at an ethics violation for harassing a citizen that is not involve in a case and whom he should have nothing to do with. Armstrong has a restraining order against him - suppose he violates that? Shirvell picketed on Armstrong's lawn - that's "very, very close to stalking," as law prof Jonathan Turley noted. These are rationales for firing a civil servant that have nothing whatsoever to do with the content of his speech. If he's harassing Armstrong for being gay, for having poor taste in clothes, because he's attracted to Armstrong and never left the 3rd grade, or for no reason at all, he'd still be disciplined. That is also a way to move along the speech/conduct distinction - if the content of the speech is not what's offensive, it's probably conduct, which is punishable.
So while AG Cox is right that civil servants do get First Amednment protection, he's making the standard move of yelling "free speech!" and letting the analysis end there. Incidentally, that's what Sarah Palin did when advertisers started leaving Dr. Laura after her racist rant - yell that her "free speech" rights were being violated. It's actually surprising how broadly this view is accepted even though is doesn't hold up to the slightest scrutiny. That's just not how the First Amendment works in this country. Mike Cox should know that, and apparently Granholm does. Maybe that Harvard degree did her some good after all, eh Mike?
