Author: Stephen Doyle, Associate Member, University of Cincinnati Law Review
In Abrams v. U.S., Justice Holmes crafted the concept of the United States being an arena for political thought. Since Abrams was decided in 1919, the right of individuals to express their political thoughts has expanded to include almost all forms of speech. However, in Shirvell v. Department of Attorney General, the Court of Appeals of Michigan was charged with determining how far the freedom of political speech truly reaches. In Shirvell, a government official tasked with protecting U.S. citizens was fired and denied unemployment benefits due to his repeated derogation of homosexuals. Ultimately, the court correctly decided that the Department did not violate his First Amendment right by terminating his employment.
Shirvell stemmed from the termination of Andrew Shirvell, a former Assistant Attorney General in Michigan, and the denial of his subsequent application for unemployment benefits. The Attorney General, Mike Cox, terminated Shirvell’s employment on November 8, 2010, following a flood of negative calls and emails from individuals expressing discontent with Shirvell. The discontent resulted from televised interviews of Shirvell conducted by CNN’s Anderson Cooper 360 and Comedy Central’s The Daily Show. The interviews focused on Shirvell’s blog, which made homophobic remarks about the University of Michigan Student Assembly President, Chris Armstrong. In fact, Shirvell’s blog criticized Armstrong’s “radical homophobic” agenda, which consisted of extending cafeteria hours, reducing tuition, and providing gender-neutral student housing.
Once terminated, Shirvell filed a claim for unemployment benefits and a grievance alleging unjust termination because the First Amendment protected his speech. Both agencies responsible for adjudicating the claims ruled against Shirvell, but he won the unemployment compensation case on appeal to the circuit court. Shirvell then appealed the termination case to the Michigan Court of Appeals, while the Department of Licensing and Regulatory Affairs/Unemployment Insurance Agency and the Department of Attorney General appealed the unemployment benefits case.
A unanimous court held that Shirvell’s termination and denial of unemployment benefits were constitutional. The court considered and utilized the analysis in Pickering v. Board of Education and the Pickering-Connick balancing test to reach the conclusion that any First Amendment interest claimed by Shirvell was outweighed by the Department of Attorney General’s interest in upholding public trust, maintaining harmonious workplace relationships, and operating efficiently.
The Shirvell decision raises two significant issues. First, did the court apply the correct test to determine if the First Amendment offered protection for Shirvell’s blog? Specifically, was the Pickering-Connick balancing test appropriate, or should a hate speech test have applied? Second, which additional facts could have caused Shirvell to obtain a favorable result?
Hate Speech or Government Employee Speech
The success of Shivell’s claim turned on whether the First Amendment protected the speech on his blog. The court, using the Pickering-Connick balancing test, concluded that Shivell’s speech was unprotected. The Pickering-Connick test affords First Amendment protection in certain instances when a government employee speaks as a private citizen on matters of public, and not personal, concern. In applying the test, the court assumed “that Shirvell spoke as a private citizen on a matter of public concern.” Because of several factors, such as Shirvell’s position, the Department’s anti-cyber-bullying campaign, and the public outcry, the court found that the First Amendment would not protect his speech as a government employee.
Had the court applied a hate speech analysis, such as the standard created in Snyder v. Phelps, the result might have been different. In Snyder, the Supreme Court held that the First Amendment protected Westboro Baptist Church’s right to peacefully picket at a gay teen’s funeral. The Court recognized that the speech occurred in a public place and related to a public issue, and thus was offered “special protection” by the First Amendment. While the subject matter on Shirvell’s blog and Westboro’s signs were similar, Shirvell’s blog attacked only one individual, Armstrong, whereas Westboro celebrated the death of groups of people. Had it applied the Snyder standard in Shirvell, the court would have likely found that the First Amendment protects the material on the blog because Shirvell’s posts were not as offensive as the signs carried by Westboro.
Forced to choose between the aforementioned standards, the court ultimately relied on the Pickering-Connick analysis. In defending himself under the Pickering-Connick analysis, Shirvell argued that his posts and protests concerning Armstrong’s “radical homosexual agenda” occurred in his free time and on his personal computer, which made him a private citizen and not a representative of the department. In Rankin v. McPherson, another case regarding government employee speech, the Supreme Court, in applying Pickering, held unconstitutional the termination of a government employee who made remarks hoping for Ronald Reagan to be shot. Because the Court held that the remarks did not negatively influence the office’s reputation or interrupt the office’s workflow, the First Amendment protected her speech. Here, once Shirvell’s interviews aired on CNN and Comedy Central, “[t]he Department was inundated with a ‘huge response’ from citizens, [receiving] ‘thousands’ of calls and e-mails” that created a situation beyond its control. This extremely negative response was missing in Rankin, but present in Shirvell. The public outcry over Shirvell’s comment showed that his speech significantly interfered with the flow of work and potentially damaged the reputation of the office. The public outcry stemming from Shirvell’s remarks resulted in detrimental reputational and operational effects upon the Attorney General’s Department; therefore, the Pickering analysis was the appropriate analysis to apply.
How Far Does Pickering Stretch?
The constitutionality of Shirvell’s termination and the subsequent denial of unemployment benefits relied on the existence of several crucial factors. The Department’s anti-cyber-bullying campaign, the public’s many complaints to the Department concerning Shirvell’s interviews, and Shirvell’s position with the Department were factors the court considered in weighing Shirvell’s interest in free speech against the Department’s interest in maintaining workplace efficiency. It would have been difficult to predict the outcome in Shirvell had one or more of the above factors been missing. Had the public not responded with overwhelming negativity to Shirvell’s interviews, Rankin-type application of the Pickering-Connick balancing test likely would have afforded Shirvell First Amendment protection. In addition, had Shirvell not been a government employee, Pickering would not have applied.
In Shirvell, the court seemed to weigh the positions of Armstrong and Shirvell against each other to create a sliding scale of equitable power. As an assistant attorney general, Shirvell represented the people of Michigan. Armstrong was a student body president with campaign promises of gender-neutral housing, longer cafeteria hours, and decreased tuition rates. Armstrong’s position and any potential political impact were incomparable to an individual running for a state office. Therefore, Shirvell possessed far more political power than Armstrong. Had the weight of these factors been different, as in Rankin, the result may have been different.
Finally, the court emphasized a reprimand issued by the Department against Shirvell for an interview that aired on a local news network. The Attorney General advised Shirvell not to participate in another interview that could tarnish the office’s reputation. Shirvell defiantly ignored his employer’s advice, and participated in two more interviews, this time on national television. Without the prior reprimand, Shirvell’s termination—and thus his subsequent lawsuit—simply might not have occurred.
In Shirvell, the Michigan Court of Appeals relied on several elements that fit neatly together to outweigh First Amendment’s protection of Shirvell’s speech. In applying Pickering, the court held that, even assuming Shirvell spoke on a matter of public concern as a private citizen, the disruption to the efficiency of his workplace caused by his televised interviews justified his termination from the Department. Had the court not applied Pickering, or if even one factor had been slightly different or perhaps missing, the court may have reached a different conclusion. Nonetheless, the Michigan Court of Appeals has taken a firm stand that government employees will not be allowed to express offensive speech that affects the employee’s workplace.
 Abrams v. United States, 250 U.S. 616, 624 (1919) (Holmes, J., dissenting).
 Some forms of speech are not protected by the First Amendment. See e.g., Virginia v. Black, 538 U.S. 343 (2003) (holding speech intended to intimate is unprotected); Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, 447 U.S. 557 (1980) (holding that commercial speech intended to mislead or deceive is unprotected); and Miller v. California, 413 U.S. 15 (1973) (holding that obscene speech is unprotected); Brandenburg v. Ohio, 395 U.S. 444 (1969) (holding that imminent and lawless action that is likely to incite violence is not protected).
 Shirvell v. Dep’t of Att’y Gen., 2015 Mich. App. LEXIS 8 (Mich. Ct. App. Jan. 8, 2015).
 Id. at *5
 Id. at *3. The blog also claimed Armstrong was a “radical homosexual activist, racist, elitist, and liar” and a “privileged pervert,” portrayed a picture of Armstrong next to a rainbow flag with a swastika containing the word “resign,” and alleged Armstrong of being a member of the KKK, among other offensive posts.
 Id. at *2.
 Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968).
 See id.; Connick v. Myers, 461 U.S. 138, 147 (1983). The court first considers whether the employee is a private citizen speaking on public concern, then balances the interest in operating efficiency and refraining from interfering with day-to-day personnel decisions.
 See Shirvell, 2015 Mich. App. LEXIS 8
 See infra note 16, and accompanying text.
 See Id.
 Id. at *44.
 See Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011). Chief Justice Roberts did emphasize the narrowness of the holding in the opinion, nothing that it only applies to Westboro Baptist Church’s case.
 Id. at 1219.
 Id. at 1213. “They stated, for instance, ‘God Hates the USA/Thank God for 9/11,’ . . . ‘Thank God for IEDs,’ ‘Thank God for Dead Soldiers, . . .’”
 Shirvell, 2015 Mich. App. LEXIS 8 at *19.
 See generally Rankin v. McPherson, 483 U.S. 378 (1987).
 Id. at 389.
 Shirvell, 2015 Mich. App. LEXIS 8 at *23. The Department had to reassign employees to handle the emails and calls from the public, as well as take time to conduct a press conference on the matter.
 Around the time of his interview with a local news station, the Department created and began pushing an anti-cyber-bullying policy.
 The court also relied on Shirvell being previously reprimanded for an interview aired on a local news network, the basis of offensive speech directed towards homosexuals, Armstrong’s position as a lowly university student body president and not a more public politician, and Armstrong already being elected to his position at the time of the blog posts.
 See CNN, CNN Official Interview: Andrew Shirvell of the blog ‘Chris Armstrong Watch’, YouTube (Sept. 28, 2010), https://www.youtube.com/watch?v=NLEyMKbSA2k.