Armstrong v. Shirvell

• Decision Date: 02 February 2015
• Docket Number: No. 13-2368,13-2368
• Citation: Armstrong v. Shirvell, No. 13-2368 (6th Cir. Feb 02, 2015)
• Parties: CHRISTOPHER ARMSTRONG Plaintiff-Appellee, v. ANDREW L. SHIRVELL Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

CHRISTOPHER ARMSTRONG Plaintiff-Appellee, v. ANDREW L. SHIRVELL Defendant-Appellant.

No. 13-2368

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

February 2, 2015

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0099n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: NORRIS, MOORE, and GIBBONS, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Andrew Shirvell, an alumnus of the University of Michigan and a former Assistant Attorney General for the State of Michigan, engaged in an online and in-person "campaign" against Christopher Armstrong, the former president of the University of Michigan's student council. Shirvell appeals many aspects of the proceedings in the district court, which resulted in the jury finding him liable for defamation, false light invasion of privacy, intentional infliction of emotional distress, and stalking. Most of Shirvell's objections lack merit, and we therefore affirm in part. The district court committed plain error, however, in its treatment of the compensatory damages for false light. We therefore reverse in part, vacate the judgment, and remand with instructions for the court to enter judgment in Armstrong's favor for the reduced amount of $3.5 million. This represents the total sum that the jury awarded, less the damages for false light.

I.

In 2010, Christopher Armstrong was elected president of the student council at the University of Michigan in Ann Arbor. The student council does not make University policy, but it works with, reports to, and advises the University on a range of issues.

Andrew Shirvell, a 2002 graduate of the University, worked as an Assistant Attorney General for the State of Michigan. In early 2010, Shirvell learned via an online newspaper report of Armstrong's election and also learned that Armstrong was openly gay. Shirvell began posting on his Facebook page about Armstrong, whom he had never met. Among other comments, Shirvell called Armstrong "dangerous" and a "radical homosexual activist" and a "major-league fanatic who is obsessed with imposing the radical homosexual agenda on the student body." Shirvell also set up a Facebook "fan page," entitled "Michigan Alumni and Others Against Chris Armstrong's Radical MSA Agenda," which purported to "expos[e] the real Chris Armstrong." He urged others, via Facebook and email, to join the "pro-family" group in order to "fight[] against Satan's representative." Shirvell took to his personal Facebook page to express outrage when Facebook deleted his "fan page" about Armstrong. He wrote: "I will not be SILENCED by the likes of Armstrong. You're going down fruity-pebbles." His self-proclaimed "outrage" continued from there: "I better not see Chris Armstrong at MY [church] parish in Charlotte - that's all I got to say." He claimed that Armstrong was scared of him and—in commenting on another story involving gay students—"remember[ed] the good old days when 'guys' like this would get their asses kicked at school."

Not content with Facebook posting, Shirvell then established a blog entitled "Chris Armstrong Watch," which discussed Armstrong's "character and his agenda and other items." The blog purported to be a "watch site," providing "testimony" and "an expose of the REALChris Armstrong." The blog was accessible to the public from April 2010 until September 30, 2010, when Shirvell removed it from public view. The blog featured a picture of Armstrong's face next to a swastika. It called Armstrong "a radical homosexual activist, racist, elitist, & liar." It attributed to Armstrong a "Nazi-like hatred of the First Amendment," explaining, "Much like Nazi Germany's leaders, many of whom were also homosexuals, Armstrong believes that any and all opposition must be suppressed by whatever means necessary." The blog further stated that Armstrong "mocks Christians," and called Armstrong an "anti-Christian bigot[]." One entry claimed that Armstrong attended an event "whose intent was to encourage underage drinking," and that Armstrong "spent most of this time [after the semester ended] engaging in underage binge-drinking." The blog made repeated references to Armstrong's participation in—and facilitation of—underage drinking. It alleged that Armstrong showed contempt toward law enforcement. Shirvell—re-posting online conversations between Armstrong and another student at the University—claimed that these conversations revealed Armstrong's "tendency toward sexual promiscuity," and thus labeled Armstrong "a perverted homosexual exhibitionist." Shirvell interpreted another online conversation as demonstrating that Armstrong had previously hosted an "orgy" in his college dormitory, at which "homosexual shenanigans" were rampant. Days after this entry, Shirvell authored another blog post proclaiming: "Armstrong engages in sexual escapades at 'churches & children's playgrounds.'" He linked Armstrong to "possible involvement" in violent attacks against places of worship in the wake of California's passage of Proposition 8. He alleged that Armstrong used his welcome to freshmen as "a thinly veiled attempt to cause sexually confused, and perhaps some impressionable, 17-and-18-year-olds to experiment sexually with members of their own gender."

Shirvell also reported on an alleged romantic relationship between Armstrong and another student. Shirvell claimed that the other student was "not out of the closet," but that Armstrong "basically seduced" the student and quickly became obsessed with him. Explaining that the other student, "[t]hanks in large part to Armstrong's influence . . . has indeed morphed into a proponent of the radical homosexual agenda," Shirvell called Armstrong "a very, very twisted sick individual who is manipulative and cunning in a most devilish way."

Shirvell also appeared on television to rant about Armstrong. In September 2010, in an interview on local station WXYZ, he said that Armstrong held the presidential position in order "to promote special rights for homosexuals at the cost of . . . heterosexual students." Shirvell later appeared in front of a national audience with CNN's Anderson Cooper. Standing by his blog and Facebook posts, Shirvell told Cooper that he had "gotten stuff from third-party sources," and argued that Armstrong was not giving interviews because "he can't defend what's on the blog." When Cooper suggested that Shirvell was a bigot, Shirvell retorted, "The real bigot here is Chris Armstrong." Two days later, back before a national audience on Comedy Central's The Daily Show, Shirvell said that Chris was "acting like a gay Nazi," and that this explained his decision to include a picture of Armstrong next to a swastika on the blog.

Across these various forums, Shirvell attempted to justify his commentary by pointing to several purportedly legitimate concerns. Shirvell, a proud Roman Catholic, apparently feared that Armstrong would discriminate against Christian, pro-life, and pro-family people. In one post, Shirvell warned that these groups would be "violently persecuted." Second, he claimed that "Armstrong's radical agenda includes mandating 'gender-neutral' housing" at the University, an initiative that Shirvell opposed. Third, he believed that Armstrong would use his platform as president to "promote the homosexual lifestyle." Finally, Shirvell opposedArmstrong's membership in a student group known as the Order of the Angell, an organization that—according to Shirvell—was known as "the University of Michigan's version of the KKK," and had "a well-documented history of racism and elitism." Shirvell claimed that Armstrong lied before the election about his intentions to join the group.

In addition to broadcasting his views, Shirvell tracked Armstrong down in Ann Arbor. At first, Shirvell posted flyers around campus and in students' mailboxes. He soon discovered Armstrong's off-campus residence and made an appearance at a party there. On several occasions, he marched up and down the street outside Armstrong's house, protesting. Fearing for his safety and that of his roommates when they needed to leave their home, Armstrong called the campus Department of Public Safety and received an escort. Shirvell later followed Armstrong to two campus events in the space of a day, holding a sign that branded Armstrong a racist liar and advertised the Chris Armstrong Watch blog. On one occasion, Shirvell stood outside Armstrong's residence while Armstrong was hosting a party, called police to complain about the noise, then filmed the ensuing proceedings and posted about the party on his blog. On one occasion, while Armstrong was speaking at a rally, Shirvell heckled him and took pictures of him. After discovering online that Armstrong planned to attend a friend's birthday party, Shirvell went, uninvited, to the party. Armstrong and his friends became concerned.

Shirvell approached students outside of an Ann Arbor night club on one occasion—while holding a sign saying "Chris Armstrong is a racist liar," and quizzed them about their online conversations. Shirvell told one student that he planned to go to her house the following day because he had heard she was hosting a party. The friend, afraid that Shirvell might endanger her guests, decided to cancel the party. Another time, Shirvell learned that Armstrong's friends were celebrating a birthday at a bar. He showed up at the bar, then followed the group to anotherbar around a mile away. When confronted, he lied about his identity, then asked for Armstrong. Shirvell believed Armstrong was supposed to be with the group, and produced a printed Facebook invitation to prove it.

Shirvell continued to monitor Armstrong's activities even while Armstrong was off campus. In the summer of 2010, Shirvell learned that Armstrong was working as an intern in Washington, D.C., in the office of then-Speaker Nancy Pelosi. In a blog post entitled "Pelosi's Office Reconsiders Armstrong's Internship; Currently Investigating...