Image: Andrew Shirvell
Marissa McClain  /  AP
University of Michigan alumnus Andrew Shirvell, an assistant attorney general, says when he's not at work, he has a right to say whatever he wants.
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updated 10/1/2010 7:57:50 PM ET 2010-10-01T23:57:50

A Michigan prosecutor who used his personal blog to attack the openly gay student body president at the University of Michigan has spurred debate about public employees' rights to say terrible things on their own time.

Andrew Shirvell, 30, started a blog in April in which he regularly lambasted 21-year-old Christopher Armstrong as a racist with a "radical homosexual agenda." Shirvell has said that when he's not at work, he has a right to say whatever he wants.

Cliff Sloan, a First Amendment expert with the New York-based Skadden, Arps, Slate, Meagher & Flom law firm, said public employers must be careful because the First Amendment says government can "make no law abridging the freedom of speech." Still, judges and state officials have some discretion when comes to dealing with workers, he said.

"While they have a right to free speech, they don't have a right to a public service job," said Sloan, the former publisher of Slate magazine and a partner in Skadden, Arps' Washington office. "Government can set some limits on the appropriate conduct and behavior of their employees."

Free speech is less of an issue in the private sector, where companies have far more leeway to decide what workers can say. Where the line is drawn with government jobs seems to vary from state to state. In Kansas, workers involved in controversial protests have kept their jobs, while those in New Jersey and Nebraska have been fired.

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Shirvell took a leave from his job as an assistant attorney general Thursday, and a spokesman for Attorney General Mike Cox has said he could face a disciplinary hearing when he returns. John Sellek said he couldn't say what that hearing might involve, but Cox has said he's troubled that Shirvell videotaped police breaking up a party at Armstrong's Ann Arbor home over Labor Day weekend.

Kary Moss, executive director of the Michigan chapter of the American Civil Liberties Union, said that while Shirvell has a right to speak his mind, "law enforcement can and should get involved" if he has been involved in criminal harassment and stalking.

Armstrong applied Sept. 13 for a personal protection order, claiming Shirvell has followed him around Ann Arbor since April and heckled him during speeches, among other things.

Image: Chris Armstrong
Sam Wolson  /  AP
Chris Armstrong, the openly gay leader of the University of Michigan's student assembly, has applied for a protection order against Shirvell.

In Kansas, members of Westboro Baptist Church in Topeka are known — and often condemned — for picketing soldiers' funerals. The members claim soldiers' deaths are punishment for the nation's tolerance of homosexuality.

The pastor's daughter, Margie Phelps, is scheduled to present arguments next week to the U.S. Supreme Court that the picketing is speech protected by the U.S. Constitution. When she appears before the high court, she'll be on leave from her job as director of a state program helping inmates re-enter society.

Phelps' brother, attorney Fred Phelps Jr., also works for the Kansas Department of Corrections.

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Corrections Secretary Roger Werholtz and Gov. Mark Parkinson's spokeswoman declined to comment on their employment.

Jane Carter, executive director of the Kansas Organization of State Employees, said state workers comment frequently on the Phelpses' employment. But, she said, the union hasn't heard complaints about Margie Phelps' conduct as a supervisor.

"We all have our religious rights," Carter said.

In other states, however, workers have been fired for violating ethics codes.

New Jersey transit worker Derek Fenton was fired two days after he burned pages from a Quran on Sept. 11 outside the site of a proposed Islamic cultural center, that would include a mosque, near ground zero. The transit agency said last month that Fenton had violated its code of ethics and "his trust as a state employee."

The legal director for the New Jersey chapter of the American Civil Liberties Union has said the firing may have violated Fenton's First Amendment rights.

Michigan's civil service rules specify only that state attorneys can't take outside work representing people suing the state. However, all civil service workers can be disciplined for "conduct unbecoming a state employee," according to the rules published on the state's website.

In Nebraska, state trooper Robert Henderson has fought his 2006 firing for joining a group with ties to the Ku Klux Klan. The trooper told an investigator he joined the Knights Party — which has described itself as the most active Klan organization in the United State — in June 2004 to vent his frustrations about his separation from his wife, who left him for a Hispanic man. Henderson also posted four messages on the group's website.

An arbitrator overturned his firing, noting Henderson was entitled to his free speech rights. The state appealed the decision, and the matter is now before the state Supreme Court.

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Associated Press Writers Mike Householder in Ann Arbor and John Hanna in Topeka, Kan., contributed to this report.

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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