The First Amendment and Government Employees

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Chris McLaughlin

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[Update: in 2015, the Michigan Court of Appeals ruled that the First Amendment did not protect Shirvell’s conduct, based on reasoning similar to that discussed below.]

What are the limits of First Amendment protection for government employees?  Consider this somewhat surreal story making recent headlines.

Andrew Shirvell is an assistant attorney general for the state of Michigan.  He is also an anti-gay activist who is appalled that the recently elected student body president of the University of Michigan, Shirvell’s alma mater, is openly gay.  Shirvell complained about the student on a blog created specifically for that purpose.  His many postings included a comment that the student is “Satan’s representative on the Student Assembly” and a picture of the student with a Nazi swastika superimposed on his face.

Once news of Shirvell’s blog and his in-person hounding of the gay student leader on campus became widely known, many people—including the governor of Michigan—called on state attorney general Mike Cox to fire Shirvell.  Cox, on whose campaign Shirvell worked, refused.  Cox stated that although Shirvell has “been acting like a bully and his behavior is immature, his conduct is after-hours and protected by the First Amendment.”

Is he right? Does the First Amendment protect this type of conduct by a government lawyer?

With all due respect to Attorney General Cox, I think he’s dead wrong on the constitutional issue.

All government employees voluntarily restrict their ability to exercise free speech when they accept public employment.  In fact, for most of the country’s history government employees had no First Amendment rights.  Oliver Wendell Holmes summed up that view in 1892 when he observed, “A policeman may have the constitutional right to talk politics, but he has no constitutional right to be a policeman.”

Thankfully for us government employees, Holmes’ view no longer controls.  As a result of several U.S. Supreme Court decisions, most notably Pickering v. Bd. of Education, 391 U.S. 563 (1968), Connick v. Myers, 461 U.S. 138 (1983), and Garcetti v. Ceballos, 547 U.S. 410 (2006), it’s now generally accepted that individuals do not relinquish all of their First Amendment rights simply because they are employed by the government.  But the speech in question needs to clear several tests before First Amendment protections apply.

First, the speech must touch on a matter of public concern. Complaints about your boss or your working conditions don’t implicate matters of public concern and therefore aren’t protected by the First Amendment. Comments about issues relating to public safety, public finances and similar “big picture” issues do justify constitutional protection.

Second, the speech must fall outside of the employee’s job duties.  In other words, your boss has the right to tell you how to conduct your job and what to say while doing it.  For example, if your job as general counsel to a state agency involves all matters of legal compliance, the First Amendment would offer no protection if you were fired for repeated complaints to your boss about alleged public record law violations within the agency.

Third, the employee’s interest in free expression must outweigh the government’s interest in the efficient and effective provision of services. Often this balancing test turns on when, where, and how the speech was made.  Speech made in the office during work hours can be much more disruptive to the provision of government services than speech made at home on the weekend. But who makes the speech is even more important.  The more an employee is involved with policy issues, the more likely that the government’s interests in controlling that employee’s speech will prevail.  When senior government employees make statements that contradict official government policy, First Amendment protection is almost non-existent.

Applying these three tests to Andrew Shirvell’s blog, I think he could be fired without constitutional concern.

First, the public concern test.  I very much doubt that the sexual orientation of a college student body president is a matter of public concern.  But Shirvell claims that the student’s “radical homosexual agenda” is a political issue.  Let’s give Shirvell the benefit of the doubt and assume that at least some of his comments touch upon a matter of public concern.

Second, the job duty test.  It is certainly not part of Shirvell’s job as an assistant attorney general to blog about the sexual orientation of college students, which means the speech could qualify for First Amendment protection.

Third, the balancing of the interests. Here is where I think Shirvell’s constitutional protections evaporate. As Cox points out, Shirvell made the speech on his own time.  But that fact isn’t dispositive.  I think the fact that these anti-gay comments were uttered by an assistant attorney general who is the legal representative of the state is dispositive.  The government’s interest in controlling the speech of its legal representatives is extremely high.  I think that interest surely trumps Shirvell’s interest in informing the world that gay people aren’t fit to lead the University of Michigan student body. If so, then the First Amendment would not protect Shirvell’s blog postings.

That constitutional conclusion doesn’t end the inquiry, however. Michigan, like North Carolina, mandates that some of its public employees can be disciplined or fired only for “just cause.”  That term is notoriously difficult to define, but in North Carolina “unacceptable personal conduct” with some connection to the public employee’s job can justify an adverse employment action.  For example, a highway patrol officer could be fired for a DUI conviction.

Attorney General Cox himself described Shirvell’s behavior as immature, bullying, and demonstrating poor judgment, a conclusion which seems to support a just-cause termination for one of the state’s legal representatives.  And Shirvell’s conduct clearly calls into question his willingness to represent all of Michigan’s citizens, be they gay, straight or otherwise.  That fact alone could justify his termination.

Shirvell is also a lawyer, which means he is subject to ethical constraints on his conduct beyond that applicable to other government employees. Legal ethics prohibit conduct that is “prejudicial to the administration of justice,” a term the American Bar Association defines to include racist and discriminatory conduct.  Shirvell’s postings that equate gays with Nazis and Satan seemingly would constitute prohibited conduct under the ABA’s definition.  Attorneys are generally not disciplined for obnoxious speech, but given Shirvell’s role as a legal representative of the people his conduct could be an exception.

Click here for a more detailed analysis of these First Amendment issues and here for Shirvell’s appearance on CNN.

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