Court: State lawyer’s ‘bullying’ of gay student not protected by 1st Amendment

A state attorney fired for an anti-gay campaign against a college student can’t collect unemployment benefits, the Michigan appeals court says, rejecting claims that his off-hours activities were protected by the First Amendment.

Andrew Shirvell (left), with a defaced image of gay college student Chris Armstrong that Shirvell posted on his blog in 2010.

The attorney general’s office was justified in firing Andrew Shirvell in 2010 because his posts on Facebook and an anti-gay blog, as well as his campus visits and TV appearances, clearly had an adverse impact on the agency’s credibility, the court said in a 3-0 decision released Friday.

The court overturned a ruling by an Ingham County judge, who said Shirvell was entitled to jobless benefits because he was fired for exercising free speech.

“The department, as the chief law enforcement agency in the state, represents all of the citizens of Michigan irrespective of race, gender, sexual orientation, religion or creed. … Shirvell’s conduct reasonably could have created the impression that neither he nor the department enforced the law in a fair, even-handed manner without bias,” the court said.

There’s no dispute that Shirvell targeted Chris Armstrong, an openly gay student government president at the University of Michigan. Shirvell appeared on local and national TV shows to defend his blog and criticize what he called Armstrong’s “radical homosexual agenda.”

In response, Attorney General Mike Cox’s office received more than 20,000 complaints.

“Shirvell’s conduct undermined one of the department’s specific missions — i.e. the integrity of its anti-cyberbullying campaign,” said judges Stephen Borrello, Christopher Murray and Peter O’Connell. “By employing an individual such as Shirvell, whose conduct Cox agreed amounted to bullying, the department undermined its own message.”

Reached for comment, Shirvell of Palm Coast, Florida, said he’ll appeal the case to the Michigan Supreme Court.

“Every public employee, whether liberal or conservative, will now be in fear of what they’re doing on their off hours,” he said.

Armstrong’s attorney, Deborah Gordon, said the decision was “excellent.”

In a separate matter, a federal jury in 2012 ordered Shirvell to pay $4.5 million to Armstrong for defamation and emotional distress. An appeal is pending.

“You cannot expect to behave in such an outrageous, illegal, harmful, menacing manner and think that your employer is going to keep you on board as a government employee and it’s not going to affect how you’re perceived by the public,” Gordon said.

I Have a Few Words for Justice Antonin Scalia and His Ignorance About the Separation of Church and State

I’m not really sure if there are many people walking this planet who I have such utter disdain for as I do Supreme Court Justice Antonin Scalia. He’s an arrogant blowhard who has no business on our Supreme Court. But there he’s been for nearly three decades, since Ronald Reagan appointed him in 1986.

He’s a big reason why I’ve advocated that Supreme Court Justices should have limits on how long they can sit on the bench. It’s absurd to think that a justice could be appointed and rule for several decades. Not only that, but it’s nearly impossible to remove one from their position. They’re not elected and have almost no system of checks and balances. For all intents and purposes, they’re a group of nine dictators that wield power over the United States and there’s almost nothing Americans can do about it.

Well, during Scalia’s time on the Supreme Court he’s made it pretty clear that his personal views drive his interpretation of our laws. Not our actual Constitution. He’s often ruled against cases that sought to protect civil rights, women’s rights, equality for women and minorities.

In other words, he’s nothing more than a radical right-wing conservative wearing a robe. He defines what it means when someone uses the term “activist judge.”

Take for instance his recent comments where he essentially pissed all over our First Amendment, claiming that religion should be favored over secularism.

What Ted Cruz Gets Wrong About the First Amendment

Texas Sen. Ted Cruz is shrewdly aware that Americans of every political persuasion are disgusted by big money in politics. He knows that hundreds of elected officials representing millions of people and 16 states have already endorsed a constitutional amendment to overturn Citizens United and related court decisions. And because he knows that defending the ability of corporations and a few billionaires to spend millions upon millions of dollars influencing elections is no winning position, he has taken to framing these efforts as plots to repeal the First Amendment.

The constitutional amendment that was reported out of the Senate Judiciary Committee last week will not, as Sen. Cruz claims, allow legislators to ban books or silence political opponents. But Sen. Cruz is trying to replace logic with hyperbole, saying that if you’re for this amendment, you’re against the First Amendment. His overheated rhetoric is an attempt to ignore an important truth in the history of our Constitution: We have always had balancing tests for every amendment. No amendment is absolute.

Sen. Cruz’s argument at a Judiciary hearing that any restriction on speech will cause an inexorable slide into censorship and tyranny defies the constitutional tradition of balancing the right to free speech with other important ideals like safety, privacy and democratic equality. The first balancing test is safety: Does Sen. Cruz really believe that everyone should be allowed to falsely cry “fire” in a crowded theater? Another is privacy: Libel laws protect against the use of speech to defame or slander without evidence. Anti-child pornography laws are an eminently justifiable regulation on the First Amendment for both safety and privacy reasons. Does Sen. Cruz oppose those? A third balancing test for the First Amendment should be a political system that has an equality of speech, which is why campaign spending limits are so important.

The constitutional amendment we propose will not infringe on citizens’ First Amendment rights; rather, it will restore the constitutional legitimacy to laws that set reasonable limits on spending in our elections. If anything, such an amendment should be seen as a bulwark for the First Amendment, which seeks balance among the cacophony of voices that exist in a free society. If Sen. Cruz believes so strongly in free speech, he should be concerned about billionaires from both ends of the political spectrum drowning out the voices of average Americans. Because it is not with the same dearness that we hold the right to get up on a soapbox and make a speech, or to write for a brochure or a newspaper, as we do to put the 11,427th negative ad on the air or to make sure that all the ad space is bought so your opponent can’t get on the air. With billions of dollars cascading into the system and distorting our politics, this false equivalency — likening the free speech of an individual to the campaign spending of a multibillion-dollar corporation — is dangerous and insulting to the American voter.

Indeed, Americans’ free speech rights flourished throughout the 20th century alongside numerous laws aimed at shielding government from the influence of well-funded special interests. Sen. Cruz must know that there was no book burning, no voter intimidation or disenfranchisement caused by these campaign finance restrictions in the period before Citizens United. These laws simply tried to protect the voices of average citizens from being shoved to the margins by the overwhelming power of moneyed interests to broadcast their message, which is stronger than ever. And now Citizens United has opened the floodgates to billions of dollars coming into the system undisclosed, unregulated and unanswered. Today, in terms of the ability to influence officeholders, the scales are tilted heavily in favor of corporations over voters, and wealthy individuals over middle-class families.

Giving corporations and a few hundred individuals — whether it’s Sheldon Adelson or George Soros — the right to buy unlimited influence in our elections undermines our entire system of elected representation and self-government and could force elected officials to spend more time courting donors and avoiding corporate attack ads than listening to the needs of their constituents.

It is clear that, throughout history, the application of the First Amendment has always required a balancing test, and there is no more important balance to be achieved than the noble goal of making sure our democracy works in an equal and fair way. That is what our amendment would do — it would restore some semblance of the principle of one person, one vote, and help us move toward the level of equality that the Founding Fathers sought in our political system.

The Religious Right’s Campaign to Strip All Citizens of Religious Freedom

Turn on any cable news show and you’ll hear conservatives, particularly from the Religious Right, giving long tirades about religious freedom and how the Left is seeking to strip it away from good God-fearing Americans. But if you watch how the Religious Right works in court, you know that it’s actually the other way around.

Religious freedom has been a strongly-held belief in America since the very beginning. All three branches of government have worked hard to preserve the rights of Americans to choose for themselves whether they wished to be Protestant, Jewish, Catholic, or an atheist. It’s a fundamental part of the system that our country built itself on: the right to believe as you will, and to change your mind about it.

Legislative bodies and the courts have centered those rights around the individual—allowing the individual to choose for themselves how they would or would not believe in a god, rather than imbuing an institution with the right to choose for them.

But how is this actually playing out in the courts and in the legislatures?If you were to believe the talking points of conservative punditryland, you might think that the right to believe (or not) as you will is under attack from the Left, and that no-good liberals (particular the gays) are trying to force Americans to accept their wicked ways and deny those good God-fearing citizens their right to worship in peace.

Hobby Lobby

In the Sebelius v. Hobby Lobby case before the U.S. Supreme Court right now, the owners of the private for-profit corporation Hobby Lobby chain are seeking an exemption from a provision within the Affordable Care Act that requires that the health insurance their employees receive include coverage for birth control methods such as morning after pills and IUDs. Hobby Lobby’s owners, the Green family (who happen to be evangelical Christians) say that they consider such birth control methods to be abortifacients—despite the medical and scientific community pointing out that they are not—and as such their company should be exempted from the Affordable Care Act because providing their employees with insurance coverage for such methods is a violation of their religious freedom.

Republican Now Want to JAIL Anyone Who Discloses Fracking Chemicals

The GOP of North Carolina is taking steps to ensure that their population remains ignorant of the dangerous chemicals and materials used during fracking, by passing a law that makes it a felony to disclose what chemicals are used in the fracking process. The bill, introduced on Thursday by three Republicans, including a member of the Republican leadership, establishes procedures for fire chiefs and healthcare providers so they can obtain the information in matters of emergency, but the corporate overlords have spoken, and the guinea pigs on the street have to remain ignorant — or else.

The bill also requires that emergency responders who receive the information sign confidentiality agreements, meaning that they can’t share, either. It’s not made clear what the penalty for sharing that information is for healthcare providers and first responders. The bill would also prevent local governments from passing any rules or regulations on fracking, as well as impede water testing procedures.

For some reason, the issue of what chemicals are used is a contentious issue. The companies claim that these potentially cancerous chemicals are a “proprietary secret,” while public safety advocate rightly claim that they’re a public hazard and that if they’re going to be forced into our drinking water, we should at least know what they are.

Hannah Wiseman, a Florida State University assistant law professor who studies fracking regulations, said of the bill:

The felony provision is far stricter than most states’ provisions in terms of the penalty for violating trade secret . . . I think the only penalties to fire chiefs and doctors, if they talked about it at their annual conference, would be the penalties contained in the confidentiality agreement. But [the bill] is so poorly worded, I cannot confirm that if an emergency responder or fire chief discloses that confidential information, they too would not be subject to a felony.

She adds that in some sections of the bill, this appears to be the case, and goes on to say that:

It allows for trade secrets to remain trade secrets, it provides only limited exceptions for reasons of emergency and health problems, and provides penalties for failure to honor the trade secret

If you remember North Carolina for anything, remember that back in February there was a massive rupture of a coal ash pool that flooded into the nearby Dan River, courtesy of Duke Energy. Republican Governor Pat McCrory’s top environmental regulators basically allowed it to happen by thwarting three suits against Duke Energy that may have prevented the disaster.

Was there ever a clearer admission of where the Republican loyalties lie? These obsequious corporate boot-lickers willingly and potentially sacrifice children to leukemia and other diseases caused by god only knows what chemicals in their fracking processes, and sacrifice our environment to the Golden Calf on Wall Street without a care in the world, so long as they make money.

Virginia Marriage Equality Decision Exposes Religious Right’s Hatred of America

We predicted it yesterday: Religious Right leaders would say in response to the Virginia marriage equality ruling that more rights somehow equals fewer rights, and Tony Perkins of the Family Research Council (FRC) did not disappoint. It was Valentine’s Day so Perkins sent his love to Judge Arena L. Wright Allen, calling her, among other things, “arrogant” and an “activist judge” (that’s what Jesus said to do to your enemies, right? Lay some hate on ‘em?):

It appears that we have yet another example of an arrogant judge substituting her personal preferences for the judgment of the General Assembly and 57 percent of Virginia voters. Our nation’s judicial system has been infected by activist judges, which threaten the stability of our nation and the rule of law.

Actually, Judge Wright Allen substituted the Constitution for the judgment of 57 percent of Virginia voters. The Founding Fathers feared this – the tyranny of the majority – and wrote the Constitution to account for such “excesses of democracy” as they were called. As they knew – and as Judge Wright Allen knows, a majority doesn’t trump the law of the land, but they can trump right and wrong if the law does not protect the interests of the minority as well as the majority.

In the words of James Madison:

The lesson we are to draw from the whole is, that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. In a republican government, the majority, if united, have always an opportunity. The only remedy is, to enlarge the sphere, and thereby divide the community into so great a number of interests and parties, that, in the first place, a majority will not be likely, at the same moment, to have a common interest separate from that of the whole, or of the minority; and in the second place, that in case they should have such an interest, they may not be so apt to unite in the pursuit of it. It was incumbent on us, then, to try this remedy, and, with that view, to frame a republican system on such a scale, and in such a form, as will control all the evils which have been experienced.