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That’s Not A Speech Code; It’s a Code of Ethics!



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Yesterday, Eugene Volokh highlighted what could be an ominous development for the legal profession: monitoring law-student speech to see if students meet the “character and fitness requirements” for the legal profession. The articulated concern stretches from “cyber-harassment” and “cyber-stalking” to “outrageous gender- or race-specific comments.” Professor Volokh points to this AALS (American Association of Law Schools) panel, put together by the AALS Section on Women in Legal Education:

Saturday, Jan. 9, 8:30–10:15 am: The First Amendment Meets Cyber-Stalking Meets Character and Fitness

Cyber-stalking and cyber-harassment have made their way to the legal academy. Some scholars say that on-line attacks constitute protected free speech. Other scholars say that this conduct is tortious and raises serious equality and civil rights concerns since internet stalking is often directed at women and minorities. But what about the character and fitness requirements that law students sitting for the bar must satisfy? Do law students who engage in harassment, smearing, and other such conduct (on Facebook, blogs, “Above the Law,” etc.) raise fitness and professionalism issues? Is there a problem with law students using websites to make outrageous gender– or race-specific comments (often about other students or faculty members)? (See http://lawvibe.com/the-autoadmit-scandal-xoxoth/ .) Is this conduct beyond question as free speech or does this conduct raise character and fitness issues that law schools must address? Does the fact that it is technologically difficult to identify all abusive posters impact the calculus?

I’d urge you to read Eugene’s entire post for his analysis of the legal implications, but I share his core concerns:
That reference [to "outrageous gender- or race specific comments"] also suggests that we aren’t even talking about a general civility code, equally applicable to al outrageously rude insults. There are many familiar problems with such general codes — but the “outrageous gender- or race-specific comments” focus suggests that this code is aimed at suppressing offensive viewpoints, and not just uncivil ways of expressing all viewpoints. The rationale for that can’t just be that rude law students make rude lawyers, who might browbeat witnesses, make life hard for litigants, opposing counsel, and judges, and so on. (That rationale would itself be insufficient to justify denying someone a license to practice law based on otherwise constitutionally protected speech, but I set that aside for now.) The rationale must be that people who “outrageous[ly]” express racist or sexist views are unfit to be lawyers, presumably because they’ll act on those views in the future.

Once accepted, this rationale would be very hard to cabin. Obviously it would be hard to resist extending it to “outrageous sexual-orientation-specific comments,” or comments that express “outrageous” views criticizing Islam. Equally obviously it would quickly apply to all speech, on websites or otherwise. And of course who would be the judge of when the expression of an opinion — whether about typical students, about students who have injected themselves into public debates, about law professors, or even about a race, sex, sexual orientation, or religion more broadly — becomes “outrageous”? Who decides what is legitimate criticism and what is “smearing”? Who decides what constitutes “harassment” (perhaps under the now-familiar but still extremely vague and broad “severe or pervasive enough to create a hostile, abusive, or offensive educational environment based on race, religion, sexual orientation, etc.” standard)? Why, disciplinary committees in law schools staffed by law professors, plus perhaps disciplinary committees in state bars.

It was only a matter of time before this virus spread to the legal profession.  In the last five years, we’ve seen the “helping professions” move to transform their codes of ethics and professional standards into instruments of ideological coercion. In 2006, under pressure from FIRE, ACTA, the NAS and other groups, a leading accreditor was forced to back away from ideological components of its “dispositions” criteria for teacher evaluation. In social work, both students and social workers have found themselves subject to ethics-based disciplinary action simply because they upheld traditional judeo-Christian views of sexual morality. At the ADF Center for Academic Freedom, we’re currently in federal litigation against Eastern Michigan University after the school expelled Julea Ward because she wouldn’t morally affirm homosexual behavior.

In these cases, again and again the other side protests: “We’re not restricting free speech; we’re just punishing unethical behavior.” Yet rules of ethics are a poor vehicle for regulating speech. Ethics rules that move from consensus and traditional professional restrictions (such as, “don’t steal from your clients, don’t sleep with your clients, don’t lie, etc.”) into the world of ideology and cultural controversy not only abuse the constitution (relabeling speech codes doesn’t insulate them from judicial review), they delegitimize the very concept of professional ethics — and the organizations that promulgate them.



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