Legal conservatives will either conform or resist. They should resist.
Earlier this week, the American Bar Association amended its Model Rules of Professional Conduct to include a speech code — the exact kind of speech code that’s been struck down repeatedly on campuses. Keen to address the crisis of female lawyers occasionally being addressed as “honey” or “darling” (at least that’s how the New York Times addressed the alleged need for the rules), the ABA endorsed sweeping speech rules that, if adopted by state bar associations, will apply not just to courtroom conduct but also to participation in any “bar association, business or social activities in connection with the practice of law.”
The new rule prohibits “harmful verbal or physical conduct that manifests bias or prejudice toward others” and defines harassment as “derogatory or demeaning verbal or physical conduct.” At the same time, the rule claims that it doesn’t apply to “legitimate” advice or advocacy. It’s good to know that the ABA is now in the business of determining when my legal arguments are “legitimate.”
Moreover, as UCLA law professor Eugene Volokh notes, the new ABA rule is broader than typical workplace anti-discrimination laws, which prohibit harassment only when it is so “severe and pervasive” that it “creates an offensive work environment.”
If my state board of professional responsibility adopts these new rules, then I’m clearly in trouble. Just in the past year I’ve engaged in the following kinds of speech that many people, including fellow lawyers, find biased or derogatory.
I have argued that men cannot become women. Many would claim I’m “biased” against the transgendered and engaged in derogatory speech every time I scorn the notion of a woman with a penis or the idea of a pregnant man.
I have argued that the right to same-sex marriage is not protected by the Constitution, and I do not believe that any same-sex union is legitimate in the eyes of God. In other words, it’s not truly a marriage. Once again many of my legal colleagues would consider me “biased” and “derogatory” — this time against gays and lesbians.
I understand that belief in violent jihad is deeply imprinted in the DNA of Islam and that so many millions of Muslims support jihadists that in some regions support for ISIS, Hamas, or Hezbollah can’t even be considered “radical.” To some, this means I’m an “Islamophobe” (I’ve been called that many times) and “biased.”
Moreover, I frequently share these views in legal contexts, including continuing-legal-education seminars and speeches at law schools. In fact, just last month I spent almost a full hour of a CLE seminar expounding on not just jihad’s roots in historic Islam but the “pyramid of hate” that dominates much of the Muslim world.
As with many speech codes, enforcement isn’t the point. It’s about the fear of enforcement — the chilling effect.
But I certainly have a right to my biases, and I even have a right to be derogatory. As courts have long noted, “there is no ‘harassment exception’ to the First Amendment’s free speech clause.” Indeed, words like “biased” or “derogatory” are so broad that, like the language of college speech codes, the ABA policy could encompass “core political and religious speech, such as [speech pertaining to] gender politics and sexual morality.” Even among elementary-school students, who are presumably far more emotionally fragile than lawyers, “damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that [anti-discrimination law] is designed to protect.”
So unless bar associations can make the case that aggrieved legal feminists are snowflakes more fragile, and deserving far greater protection from free speech, than a fifth-grade girl, then this new speech code doesn’t stand a chance in court.
But as with many speech codes, actual enforcement isn’t the point. It’s about the fear of enforcement — the chilling effect. It’s about creating the impression that certain ideas are completely out of bounds — specifically, any idea or expression that offends favored victim groups. The application to “social activities” is particularly disturbing. Are dinner conversations at bar association events now within the jurisdiction of the thought police?
Lawyers live in fear of ethical complaints. A mere allegation can ruin a career, and defending yourself from ethics boards can be painful and expensive even if your law practice remains intact. The safest course is always silence. The safest course is compliance. After all, you don’t want to be one of those people — the bigots and the haters.
#related#It is troubling indeed that there are so few defenders of free speech in the ABA that exactly “no lawyers signed up to speak against the proposed rule”; it passed by a voice vote at the ABA’s annual convention. There’s no groupthink quite like liberal-lawyer groupthink. When they feel strong enough, they will mobilize to crush dissent. The legal Left obviously feels strong.
As for me, I have no intention of complying with this rule. Pass it in any jurisdiction where I practice, and I’ll defy it. Try to enforce it, and I won’t just see you in court, I’ll see you in the legislature, and I’ll see you in the national media. You’ll hear my “bias” shouted from the mountaintops. The best response to censorship is massive resistance. Legal conservatives will either learn to resist or they’ll learn to conform. Silence equals defeat. Only speech can save you now.