I forgot to post my C-J column for last month, and reprint it below with permission of the Courier-Journal. Although the topic that prompted it as an American Bar Association, anyone who works in a job requiring a license should be alarmed at this attempt to censor free speech. And as I've written about previously, more and more people are required to obtain licenses for their jobs -- even sod growers!
Those speech codes that have made free expression on college campuses so perilous for conservatives are no longer limited to the Academy. Thanks to the American Bar Association, licensed professionals appear to be the next to encounter censorship posing as “tolerance.”
Long a bastion of liberalism, the ABA has outdone itself with vague new restrictions to eradicate “bias.” The ABA recently amended Rule 8.4 in its Model Rules of Professional Conduct to compel lawyers toadhere to a speech code or face disciplinary action — like suspension or disbarment.
Rule 8.4 prohibits “harmful verbal or physical conduct that manifests bias or prejudice toward others.”
Much of the impetus of this rule, according to the New York Times, is that we lady lawyers must be shielded from misogynists who call us “honey,” lest we’re forced to take to our fainting couches in the middle of a deposition.
Individual states determine whether to adopt the rule, but most state bar ethics rules track the ABA Model Rules, often verbatim.
The ABA also accredits law schools, which it forces to teach legal ethics classes that no doubt study the ABA Model Rules. So in addition to creating a new vehicle to punish lawyers who deviate from liberal orthodoxy, Rule 8.4 will lead to more left-wing indoctrination of law students. As if they need it.
The rule is much broader than typical discrimination laws. It applies to comments that can be perceived as “harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” “Harassment” means “derogatory verbal or physical conduct.”
Thankfully, those Founding Fathers who were lawyers were not subject to this speech code. They could never have criticized King George III — it would have manifested “bias” against his “national origin” (British), and his “socioeconomic status” (King).
Ostensibly, the rule will improve the reputation of the legal profession by protecting people from being offended. In reality, it punishes lawyers who speak about controversial topics and hold a politically incorrect viewpoint that supposedly “manifests bias.”
Affirmative action gets an exception from the rule; lawyers may show “bias” so long as it helps a favored group.The rule does not apply to “legitimate” advice or advocacy,” whatever that means.
Nonetheless, the rule’s breadth is potentially quite staggering; it extends far beyond the courtroom.
“Verbal… conduct” that occurs at a “bar association, business or social activities in connection with the practice of law” is subject to discipline. That could encompass a conversation about current events at a law firm dinner or bar association cocktail party or maybe a Rotary luncheon. It could apply to a lawyer giving a speech, or writing a column.
And if the Federalist Society, for example, hosted a debate on transgender bathrooms, or immigration reform, a lawyer who takes the wrong position on those topics risks discipline for professional misconduct. Because this rule was amended to promote leftist ideology, only one lawyer in a debate need worry.
In one sense, Rule 8.4 is not surprising. As the Federalist Society pointed out, Justice Samuel Alito’s prediction in his dissent from the gay marriage case,Obergefell v. Hodges, is coming true — sooner than anyone expected: “I assume that those who cling to the old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employees, and schools.”
The ABA rule does more than label someone a bigot: at its most draconian, disciplinary action can prevent a lawyer from practicing law — providing for one’s family — for holding a political or religious viewpoint that the authorities deem “biased.”
Even bar disciplinary action that is less severe than disbarment, like a reprimand, is still deeply embarrassing. Consequently, the possibility of a bar complaint terrifies lawyers. That chills free expression and open debate, which is exactly the point — to replace freedom of speech with freedom from speech that is offensive to some.
The profession most responsible for protecting the First Amendment would eat its own for exercising their First Amendment rights. The Framers would be appalled.
Disciplinary action should be imposed if a lawyer steals from a client or bribes a judge or commits any number of ethical breaches. It should not apply to expressing an opinion, even an unpopular opinion.
Former Reagan administration Attorney General Ed Meese complained to the ABA about the rule’s “clear and extraordinary threat to free speech and religious liberty.” The ABA rule, Meese said, “resembles the laws and tactics of oppressive regimes around the globe that America unapologetically opposes. It is not an overstatement to say that this proposed rule borders on fascism."
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