Free Speech

Andrew Shirvell Is Out at the Michigan AG’s Office

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Andrew Shirvell, now a FORMER Michigan AAG.

We mentioned this briefly last night in an update appended to Non-Sequiturs, but it’s big enough news that it merits more coverage. Michigan assistant attorney general Andrew Shirvell — whom we’ve covered extensively, for his blogging campaign against Chris Armstrong, the openly gay (and ridiculously handsome) student body president at the University of Michigan — has been fired by Michigan Attorney General Mike Cox.

(A commenter had this punny response to the news: “Gosh. Is that the last time Andrew Shirvell will run into trouble with Cox?”)

I previously wondered whether Shirvell deserved to be fired. As AG Cox noted in explaining why he didn’t fire Shirvell immediately, government lawyers have free speech rights too.

Most of you weren’t as concerned. In an Above the Law reader poll last month, over 80 percent of respondents said that Cox should fire Shirvell.

And so he has. According to the Michigan AG’s office, Shirvell went well beyond the bounds of permissible free speech….

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Mississippi Lawyer Jailed — For Not Reciting Pledge of Allegiance

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Man, have things changed in Mississippi. Mississippi used to be a hotbed for rebellion against the Union, and now it’s putting lawyers in jail for refusing to pledge allegiance to the flag. That’s progress, baby! (Sorry, I just wanted to see what it would look like to write a paragraph portraying Mississippi as progressive about anything.)

Mississippi lawyer Danny Lampley was found in contempt of court and jailed for refusing to recite the pledge of allegiance in open court. According to multiple reports, Lampley stood for the pledge and was “respectful,” but did not recite the words. Chancellor Talmadge Littlejohn (what a name!) then specifically asked Lampley to recite the pledge, and when he refused, he was held in contempt.

An Oxford, Mississippi lawyer who once hired Lampley covered the story on his blog…

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Michigan Assistant AG Andrew Shirvell Goes On Leave
And: Should AG Mike Cox Fire Shirvell?

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Michigan AAG Andrew Shirvell

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….

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And: Should AG Mike Cox Fire Shirvell?“

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Craigslist Loses Its Eroticism

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Craigslist services section earlier this week

The “censored” box that Craigslist put over the “Adult Services” section of its website may have been a last hurrah before capitulating to demands from attorneys general that the section be eliminated. Today, the censored box disappeared from the site.

The “adult services” section is gone, but two new services sections appeared: “cycle” and “marine.” Their offerings are not as exciting as the now-disappeared lusty section. There are multiple ads for jet ski repair in the new marine section in New York, and a “massage special” in the cycle section. It looks like would-be prostitutes are going to have to work on their bike and boat repair skills.

The law — i.e., Section 230 — was on Craigslist’s side. Why did it capitulate?

Read on at Forbes.com.

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Fourth Circuit Decides First Amendment Trumps Social Security Number Privacy

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Court clerks in Virginia may be shaking their fists at the Fourth Circuit today. In an interesting ruling on free speech, privacy, and public records, the court ruled that an angry blogger has the right to publish public officials’ and court clerks’ Social Security numbers in order to protest the fact that Virginia puts records online that publish citizens’ social security numbers. We skimmed the opinion, but didn’t see a citation to Hammurabi.

B.J. Ostergren has been writing TheVirginiaWatchdog.com since 2003 to bring attention to the fact that state governments play fast and loose with people’s Social Security numbers when putting land records online. Her advocacy got many of them to actually start attempting to redact SSNs from the documents before putting them online, but the system was still imperfect.

She started posting land records containing unredacted SSNs, which led the state to pass a law in 2008 to make what she was doing illegal. She sued and the courts supports her, though the Fourth Circuit eliminated some conditions imposed by the district court…

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Quote of the Day: F*** Yeah!

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We agree with the Networks that the indecency policy is impermissibly vague. The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. Other expletives such as “pissed off,” up yours,” “kiss my ass,” and “wiping his ass” were also not found to be patently offensive.

– Judge Rosemary S. Pooler, in a Second Circuit opinion in a case remanded by the Supreme Court. The Second Circuit struck down an FCC obscenity rule for being unconstitutionally vague and violating the First Amendment.

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Quote of the Day: Is Fortunetelling Protected Speech? Signs Point to Yes.

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While we recognize that some fortunetellers may make fraudulent statements, just as some lawyers or journalists may, we see nothing in the record to suggest that fortunetelling always involves fraudulent statements.

– Judge Clayton Greene Jr., writing for the Maryland Court of Appeals in Nefedro v. Montgomery County, which struck down a ban on paid fortunetelling on First Amendment grounds.

(Gavel bang: ABA State and Local Government Law newsletter.)

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Citizens United v. FEC: The Decision, Its Implications, and the Road Ahead

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A liveblog of a panel about Citizens United at the ACS National Convention, after the jump.

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‘Genocide-Denying’ Law Professor Peter Erlinder Imprisoned in Rwanda

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A law professor from Minnesota is not having a very good start to his summer break. As we previously mentioned in the Memorial Day Docket, a William Mitchell College of Law professor, Peter Erlinder, 62, traveled to Rwanda last month to help with the legal defense of Victoire Ingabire, an opposition leader running against current-President Paul Kagame in the central African country’s August elections.

Erlinder, who previously defended a Rwandan accused of genocide during the International Criminal Tribunals in 2003, was arrested within a week of his arrival for denying that genocide occurred there. (If you need a history lesson here, watch Hotel Rwanda.) From the Associated Press:

Erlinder is accused of violating Rwanda’s laws against minimizing the genocide in which more than 500,000 Rwandans, the vast majority of them ethnic Tutsis, were massacred by Hutus in 100 days. Erlinder doesn’t deny massive violence happened but contends it’s inaccurate to blame just one side.

Erlinder’s views are generally controversial. See, e.g., this open letter he wrote about Darfur (via the WSJ).

Erlinder could face up to 25 years in prison. His defenders say his arrest has more to do with his efforts on behalf of an opposition candidate than his views on genocide. But the Rwandan government has a different view:

[Rwandan Prosecutor General Martin] Ngoga’s office compared Rwanda’s laws to those in some European countries against denying the Holocaust.

“We understand that human rights activists schooled in the U.S. Bill of Rights may find this objectionable,” government spokeswoman Louise Mushikiwabo said in a statement. “But for Rwandans — schooled in the tragedy of the 1994 genocide and who long for peace — Mr. Erlinder’s arrest is an act of justice.”

How did Erlinder get into this mess? We corresponded with his daughter, who shed some light on the situation….

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Why Citizens United Is Not the End of the World

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This morning I attended a very interesting panel discussion sponsored by the Yale Law School Center for the Study of Corporate Law, Citizens United: Mountain or Mole Hill? Because the talk was sponsored by my rather left-leaning alma mater, I expected the answer to the question presented to be “Mountain” — and not just any mountain, but Mount Doom.

I was pleasantly surprised. The deeply thoughtful discussion pointed more in the direction of “Mole Hill.” This was especially surprising given the liberal bona fides of the three star panelists:

  • Floyd Abrams, the longtime Cahill Gordon partner and celebrated First Amendment lawyer, who argued in the case for Senator Mitch McConnell (as amicus curiae, in support of Citizens United);
  • Heather Gerken, the J. Skelly Wright Professor of Law at Yale Law School, and a leading scholar of election law and voting rights; and
  • Samuel Issacharoff, the Reiss Professor of Constitutional Law at NYU School of Law, and an expert in voting rights and civil procedure.

Both Professors Gerken and Issacharoff worked on the Obama campaign. And we all know what President Obama thinks of Citizens United.

But what did this eminent trio of panelists have to say about the case?

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