I don’t buy the “WAAAAAAAAAAHHHHHHHHHHHHHHH!! What about Karl Rove?” defense. Rove is a bonafide public figure. He was protested for things that he actually did and things that he wanted to do. Some of what El Douchebag did to Armstrong is protected speech. Most of Shirvell’s misbehavior is stalking and intimidation of someone based on who he is. You could argue that black ministers are public figures. Would burning a cross on Jeremiah Wright’s lawn be protected speech?
I wonder how difficult it is to dismiss an employee who is clearly insane but who hasn’t made any actual threats against anybody and may be capable of meeting the minimum requirements of their job. Example (and this is not Shirvell to my knowledge: suppose you have a guy who hears voices, talks to them, carries on conversations with them, and sometimes makes absurd statements or comments (none threatening) to his coworkers (“Don’t drink Coke, it’s made out of demon piss… no really, demon piss” or “There’s a guy who’s listening to us through that electrical socket” or just bursting into laughter for no reason during a meeting).
However, his reports and minimum job responsibilities get done.
Would there be a basis to fire him in some states? He’s not doing anything that’s threatening, and he is doing his job, but he’s interfering with the ability of others to do their jobs due to his insanity, and there are indicators- none that you can “put your finger on” but enough everybody has the same fear- that one day he’s going to go bonkers and possibly hurt himself or somebody else.
And Armstrong is a limited purpose public figure on the topic of gay rights and gay-friendly activism. So when Shirvell appears in connection with those types of events, he’s just as protected as Rove’s protesters are.
You didn’t ask me, but I’ll respond anyway. Toobin and Tierney are giving the infotainment equivalent of legal commentary, not serious legal analysis. The “you have a constitutional right to speech, but not to a job” is actually the exact reasoning repeatedly rejected by the Supreme Court in this context. And, as Bricker noted, Tierney appears not to know what either constructive dismissal or adverse employment actions are.
Almost all of the alleged “stalking” in this case is protected expression that cannot be criminalized, to the extent it can be called expression on a matter of public concern, and to the extent that is the correct standard. Neither of those issues is well-settled in the law.
As to firing a government employee not for the expressive conduct per se, but for what the expressive conduct reveals about the employee’s character or personality, I don’t think the distinction is plausible. You don’t get to fire non-policymaking government employees because of their wacky viewpoints. If their off-duty speech starts interfering with their on-duty work, then you start to be able to apply the exception the Supreme Court has laid out, but it is a high burden to meet and it is not clear that it can be based on others’ reaction to the content of the speech.
Except that the protesters that actually DID go to Karl Rove’s house with the intent of confronting Rove were not charged with any crime or subject to any sanctions at all. And in Rove’s book, he discusses the implications of their presence and relates conversations with his attorney on the issue, and they agree that there is no legal recourse for Rove. So I don’t agree with your conclusion – and neither, I think, would too many folks on this board.
Each of the other actions in that paragraph do not involve contacting Armstrong directly, and seem thus to be out of reach of the law.
I endorse Richard Parker’s commentary completely.
I’ll add that as a private sector worker, he could be fired with no problem. In a state where cyberbullying laws existed, I suppose he could be convicted, and the conviction then might make him ineligible for the job.
If his on-the-job activity makes it impossible for him to perform his job functions, he could be dismissed on that basis.
But it’s a bit disenheartening that there was never even a breath of discontent over people showing up at Rove’s house and screaming at hime as he drove into his garage, and here people are frantically searching to find something, anything, to hang this nutcase for… and refusing to believe the fact that there isn’t anything.
And it’s because of the two cases I laid out a couple of pages ago, the real answer is that in their gut, people feel that what happened to Rove is OK, because he was a bad man that did bad things; what’s happening to Armstrong is wrong because he’s not a bad guy and hasn’t done bad things.
Can we at least be honest about that?
Sure but there is a process for getting rid of him. In most states it’s going to be 1. Investigate if he isn’t performing his job function or if he’s interfering with others ability to do their job. If he is found deficient at his job or to be interfering with others he’d be called into his bosses office, given a written warning or whatever other method they are required to use. Effectively telling him cease and desist from distracting his fellow workers. If he continues he gets fired.
What doesn’t happen is some individual or group of individuals decide he should be fired and cry till it happens. There are specific guidelines for firing people. If the state has a need to terminate someone they can. The simply need to prove that need by the rules in place.
[QUOTE=Bricker]
But it’s a bit disenheartening that there was never even a breath of discontent over people showing up at Rove’s house and screaming at hime as he drove into his garage, and here people are frantically searching to find something, anything, to hang this nutcase for… and refusing to believe the fact that there isn’t anything.
And it’s because of the two cases I laid out a couple of pages ago, the real answer is that in their gut, people feel that what happened to Rove is OK, because he was a bad man that did bad things; what’s happening to Armstrong is wrong because he’s not a bad guy and hasn’t done bad things.
Can we at least be honest about that?
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If you ran for councilman, making you a “limited public figure” or whatever the term is- and you and Lady Bricker walked outside of your house and were almost blinded by flashbulbs from paparazzi who then followed your car all over town, flashing constantly and trying to bait you even, would you see no difference at all in that and the paparazzi who click pictures of Lady Gaga or Brangelina or whoever’s big these days?
Rove is a public figure by any definition- this kid is only one by a legal definition with 23 asterisks. Being as objective and as non partisan as possible it’s fair to say Karl Rove has been an extremely controversial character who was influential in the policy that led to the Iraq War. Rove is wealthy and has many years of experience in dealing with the press and probably with stalkers as well and it’s reasonable to expect to have them in his job. It’s reasonable for Rahm Emmanuel to expect to be followed down the street or to have people protesting him from time to time.
I hate Glenn Beck with a passion- I think he’s a lying sack of shit, half crazed and all amoral- but you can’t find one time on this or any other MB where I’ve said that he should be arrested or restrained from going near Obama or anybody else he makes millions criticizing. Obama’s the president: it’s to be expected that there will be fanatics and even flat out liars out there who make careers off of criticizing him. However, if Glenn Beck decided to stop criticizing Obama and start spending an hour a day ranting and raving over my brother, also a Democrat and currently running for regional office in Alabama and about on par with Armstrong in the degree to which he’s a public figure, and started accusing my brother of planning the financial downfall of the country and a genocide if he got elected to an office that has very little power to begin with and none outside of his area code, then I’d think he’d lost whatever passed for sense before and that this was just crazy. (And my brother’s middle aged and rich; Armstrong’s only a few months past being a minor and has no money.)
I would NOT think it was comparable to criticizing a legitimately famous and controversial figure, and there is simply no comparing a student body president to Karl Rove or to any other person who could go on the nightly news without need for introduction. I don’t give a damn what the legal definition of public figure is, I’m speaking in terms of realism of being a public figure and the degree to which they can defend themselves and the reasonableness to expect people to fanatically dedicate their lives to defaming them. You’ve admitted yourself that this guy is nuts- THAT is the issue, not his party loyalty (which I have no idea if he even votes or not).
Protesting Rove doesn’t necessarily make somebody nuts. Devoted perhaps, maybe fanatical- I haven’t seen the signs. If somebody talked about nothing BUT Karl Rove and did nothing but write about him and stalk him in their spare time then yes, I’d think they were nuts.
Question: some of the Shirvell’s stalkery behavior took place while Armstrong was in DC, doing a summer internship. Does DC have a cyberbullying law, and would it apply in this case, given that Shirvell was still in Michigan at the time?
Yes, that is the issue. But there’s a strong push here to move from “nuts” to “must be fired,” or “Must be arrested.” It’s those latter instances that troubles me.
Cooper’s latest dealing with the leave of absence and Cox’s ties to Shirvell
Serious question: in a world in which a government employee who’s a teacher can be fired for posting nekkid pictures on a private website, is it seriously true that this schmuck can’t be fired for his behavior? Are the standards for being a teacher really that much higher than the standards for being an AAG?
I would say that the standards are much more subjective.
I doubt that there are very many teachers who are hired by the state through the civil service process. More often they are hired by a local school district that doesn’t have so many elaborate rules.
It may be that teachers at state colleges would be an exception to this.
Listen, bricker is spot on about the Michigan law here. Shirvell is creeping me the hell out, and he’s probably dangerous to Armstrong, in some way.
BUT.
There is no Michigan law which allows him to be fired for what he’s done. Should there be? Dunno. But there is no such law. There is likewise no law for arresting creepy people. (Thank god- I wouldn’t have made it through my 20’s)
Does Armstrong have a good faith basis for a PPO, and is the no-trespass order issued by U-M a good idea? Yeah.
I do think there should be.
In general, I’d agree, but the Michigan Legislature is particularly stupid, even given the baseline of stupidity in any legislature. So, I have no confidence that they wouldn’t COMPLETELY jack up the law.
What would you base the law on? His conduct as employee of the state, or more as a cyber-stalking/bullying law?
I would draft a robust cyber-stalking law, patterned after states whose laws have at least weathered some measure of First Amendment challenge, and then use the content-neutral fact of a criminal conviction under those laws to fire him… assuming his conduct continued after the passage of the laws, that is.
Seems reasonable. Given the nature of his conduct to date, I can’t imagine him stopping his actions, regardless of law, can you?
Not sure. He seems to have made an effort to keep his conduct just under the line insofar as legality. If the line moves, I honestly can’t guess whether he can (or will) conform his conduct accordingly.