United States District Judge Arthur J. Tarnow has affirmed a jury verdict of $4.5 million against Andrew Shirvell on September 11. Shirvell is the homophobic former Michigan assistant attorney general who the jury found committed various wrongful acts against Christopher Armstrong, a gay man who was at the time the newly-elected student body president at the University of Michigan. Judge Tarnow denied Shirvell’s motions for judgment as a matter of law, for a new trial, or to amend the judgment on damages.
Shirvell, who is an alumnus of the university, was angered when he read about Armstrong’s election, becoming fixated on doing something to discredit Armstrong. He started a blog devoted to attacking Armstrong for his “radical homosexual agenda,” claiming that Armstrong engaged in sexual misconduct in public places, among other things, with statements trading on anti-gay stereotypes. Shirvell showed up on campus and outside Shirvell’s home, ostensibly to “document” inappropriate conduct and to protest against Armstrong. Armstrong complained about Shirvell’s activities, which eventually led to his discharge from the attorney general’s office when an investigation showed that he had used his office computer to conduct some of his anti-Armstrong activities. Shirvell was also barred briefly from the university campus, and his conduct was referred to lawyer disciplinary authorities and local law enforcement agencies. The local prosecutor decided not to charge him with stalking, but Judge Tarnow found that this did not preclude Armstrong from seeking civil damages for Shirvell’s conduct.
Armstron’s lawsuit claimed that the blog attacks and stalking incidents were defamatory, an invasion of privacy and constituted intentional infliction of emotional distress. Shirvell moved to North Babylon, New York, after losing his job, so although Armstrong’s claims all arise under Michigan state law, the case is in federal court as a suit between citizens of different states.
Shirvell’s defense, repeated over and over again unsuccessfully at trial and in his post-trial motions, was that all his activities were protected by the First Amendment as freedom of speech. Shirvell argued that Armstrong, as the elected student body president who had put out press releases proclaiming his status as the first openly-gay man in that position, was a public figure. This would mean that he could only hold Shirvell liable for defamation if he could show that Shirvell made defamatory statements with “actual malice,” a legal standard requiring proof that the speaker deliberately lied or spoke with deliberate indifference whether their harmful statements were true. Shirvell also claimed that Judge Tarnow erred by not allowing him to argue to the jury that his remarks and conduct were protected by the First Amendment.
Judge Tarnow found that the question whether Shirvell’s activities were protected by the First Amendment was a question of law to be decided by the judge, not by the jury. The jury’s role is to decide questions of fact, and in a case of this sort, that meant deciding whether the plaintiff had succeeded in proving the various elements of his tort claims. It was up to the jury to determine whether the statements specified in Armstorng’s complaint were assertions of fact that were either true or false. Furthermore, because Armstrong was seeking damages for emotional distress, under Michigan law he had the burden to show that Shirvell made these statements either knowing that they were untrue or with reckless disregard for whether they were true or false – the actual “malice standard” that would apply in public figure cases and that the jury would be asked to determine.
Ultimately, the jury decided that the overwhelming majority of the statements were false, and that many of them were made with actual malice. The jury also heard evidence about the emotional distress that Shirvell’s actions caused to Armstrong, and determined how much money should be awarded to Armstrong to compensate him for this harm and to punish Shirvell for his misconduct.
Even though Judge Tarnow ruled as a matter of law that Armstrong was not a public figure and could win his defamation and invasion of privacy claims without proving actual malice, such proof would be necessary for him to win his emotional distress damage claim. This was Armstrong’s major damage claim, because he was not alleging any significant economic injury as a result of Shirvell’s statements. Thus, Shirvell’s continued reliance on the public figure issue in appealing the verdict seemed pointless, since the jury found that Armstrong’s evidence met the actual malice standard in order to justify the damage award.
Judge Tarnow devoted a large part of his opinion to the public figure issue, rejecting Shirvell’s argument that Armstrong’s position at the university made him into a public figure who would have to prove actual malice to win this case. “The mention of Plaintiff Armstrong in a limited number of mostly local news publications does not render Armstrong a ‘household word,’” he wrote. “Moreover, Plaintiff’s position as student body president did not provide Plaintiff with control or responsibility for government processes, and therefore does not qualify him as a public official. Finally, Defendant Shirvell also fails to identify a public controversy in which Plaintiff was involved, other than the attention brought on Plaintiff by Defendant’s own statements and actions.”
Shirvell pointed to newspaper articles quoting Armstrong about being the first openly-gay student body president at Michigan as thrusting himself into public controversy, but Tarnow rejected this, writing, “Again, a matter of public interest is not in and of itself a public controversy,” as he found that Armstrong could not even be considered a limited –purpose public figure. (A limited purpose public figure would be someone who has involved himself in a public controversy to the degree that protection of free speech on matters of public concern would require that the actual malice standard be met regarding statements relating to the Armstrong and the controversial subject.)
Shirvell’s blog and protest signs had stated that Armstrong had engaged in various kinds of misbehavior, offensive conduct, and even some criminal acts. Armstrong presented evidence that the statements were false. At trial, Shirvell argued that his statements were either true or non-actionable statements of opinion, but the jury disagreed, and courts are loathe to set aside a jury’s factual findings, especially when the plaintiff’s evidence that the statements are false stands largely uncontradicted by the defendant’s failure to put on much of a case. Shirvell, who represented himself at trial, only offered witnesses on the public figure issue, which Judge Tarnow found could not be presented to the jury, and provided no direct evidence that the contested statements were true.
On the issue of actual malice, Shirvell rested largely on his own testimony that he believed all the statements he made about Armstrong to be true, but his testimony provided no factual basis for those beliefs, and the court found that neither at trial nor in his post-trial briefs had he even bothered to address a large number of the statements that were in issue. Judge Tarnow noted that the post-hearing briefs made “specific reference to less than half of the statements at issue in this case. Of the unspecified statements, Defendant also fails to delineate which statements he alleges are true, which are allegedly protected opinion speech, and which are allegedly rhetorical hyperbole. This Court cannot dismiss the jury verdict based on Defendant’s generalized claims.”
The judge also rejected Shirvell’s arguments against the size and scope of the damage award, finding that it fell within the normal range for cases involving this type of behavior by the defendant.
Shirvell received volunteer legal assistance on his post-trial motions, and will likely seek to appeal the court’s rulings, since he continues to maintain that all his conduct connected with Armstrong is shielded by the First Amendment.