Today brings some updates in the ongoing saga of Andrew Shirvell, the Michigan assistant attorney general who writes Chris Armstrong Watch, a blog devoted to attacking the openly gay student body president of the University of Michigan. We’ve covered the story extensively (see here and here).
First, Shirvell’s blog is now “open to invited readers only” — i.e., it’s password-protected.
Second, Chris Armstrong is seeking a restraining order against Shirvell (who has shown up at events attended by Armstrong and also at Armstrong’s home). Judge Nancy Francis declined to issue an immediate restraining order but scheduled a hearing for next week. (Shirvell has already been banned from the Michigan campus, despite his status as a UM alumnus.)
Third, and most notably, Shirvell has taken a personal leave from the Michigan AG’s office. This announcement was made today by a spokesperson for Attorney General Mike Cox — who also mentioned that Shirvell will be the subject of a disciplinary hearing when he returns to work.
The news that Shirvell is out of the Michigan AG’s office, at least temporarily, will be welcome to many. But some observers, including our own Elie Mystal, have called for more: namely, Shirvell’s firing.
Let’s pause and consider: Would it be that easy to fire Andrew Shirvell? As a former government lawyer who once blogged about judges while appearing before them as a prosecutor, I have some thoughts on this….
Despite his reprehensible views and overall lunacy, I feel a certain amount of empathy for Shirvell. Once upon a time, I was a government lawyer who blogged in my spare time — and got in some hot water after I revealed my authorship of Underneath Their Robes, in an interview with the New Yorker.
(And once upon a time, I wrote over-the-top opinion pieces complaining about the homosexual agenda — before adopting a “if you can’t beat ‘em, join ‘em” approach. So I can empathize with Shirvell on that score too.)
My boss when I was writing Underneath Their Robes, Christopher Christie — then the U.S. Attorney for New Jersey, and now the governor — did not attempt to fire me (and to this day I’m grateful for his kind treatment of me). With his agreement, I put my blog behind a password, just like Shirvell, and went back to being a prosecutor. I continued to work as an assistant U.S. attorney until I left for a full-time blogging job at the politics site Wonkette.
Had Chris Christie wanted me to resign, I would have gone quietly. Interestingly enough, though, it’s not as easy as some might think to fire a government lawyer for his extracurricular blogging activities. The Detroit News explains:
[Michigan Attorney General Mike] Cox told CNN he didn’t intend to fire Shirvell, citing civil service rules that protect government employees from being “fired willy-nilly” for exercising their rights of free speech….
“I’m at fault here,” Cox said. “I’ve been saying for weeks that (Shirvell’s) been acting like a bully, that his behavior is immature, but it’s after-hours and protected by the First Amendment.”
A lawyer for the ACLU, Jay Kaplan, agreed with Cox: “You can say what you want on your own time…. We believe that the answer to hate speech is more speech.”
Cox directed some snark at another lawyer-turned-politician who has weighed in on L’Affaire Shirvell. He suggested that Governor Jennifer Granholm, who declared on Twitter that she would have fired Shirvell, is oversimplifying the situation:
“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.”
In defense of Governor Granholm, civil services rules do permit a government lawyer to be fired for engaging in “conduct unbecoming a state employee.” But “conduct unbecoming” is arguably in the eye of the beholder. Cox’s decision not to fire Shirvell, in order to avoid potential litigation that could be costly and distracting, seems at least understandable.
Readers, what do you think?
P.S. This is not the first time Shirvell has made an ass of himself. See here.
Assistant AG takes leave amid gay-bashing controversy [Detroit News via ABA Journal]
University of Michigan student body president seeks restraining order against assistant state attorney general [AnnArbor.com via WSJ Law Blog]
AG Cox: Andrew Shirvell has been suspended [Michigan Daily via ABA Journal]
Michigan Asst. AG, Owner of Blog Targeting Gay Student, Takes Leave [WSJ Law Blog]
Asst. AG On Leave After Blog Tirades Against ‘Radical Homosexual’ Student Leader [ABA Journal]