Look Who Is Gutting the First Amendment!

by Johanna Markind
August 26, 2016

The struggle between free speech and speech codes that are intended to prevent harassment and discrimination appears set to leap from college campuses to law offices around the United States.

On August 8, 2016, the American Bar Association (ABA) approved resolution 109, which curtails freedom of speech. The approved resolution amended its model rule of professional conduct 8.4. It prohibits

“conduct that the lawyer knows or reasonably should know is 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.”

The official comment explains:

“discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct.”

The model rule is non-binding, but has potentially great influence on professional conduct rules that state courts require lawyers to follow. Should state courts adopt the change, lawyers found to violate it could be sanctioned and possibly disbarred. Because professional rules are legally binding on lawyers, the prospect that states may regulate “verbal conduct” implicates First Amendment concerns.

The ABA declined to answer questions for this article, as did the American Civil Liberties Union (ACLU). The ACLU, which calls itself “our nation’s guardian of liberty,” and touts itself as fighting for “your right… to speak out — for or against — anything at all,” has not issued any statements or press releases about the model rule revision.

Ilya Shapiro, Cato Institute’s senior fellow in constitutional studies and editor-in-chief of Cato’s Supreme Court Review, views the ABA resolution as “a kind of a speech code that restricts perfectly acceptable speech. It’s like safe spaces on college campuses, where anything you say might offend someone and therefore you can be punished for it.”

Many American colleges, motivated at least partly by a desire to protect members of growing minority populations on campus, have adopted speech codes. The codes have arguably fostered a culture chilling free speech, enabling people who claim offense to shut down dissenting voices. The past two years, for example, have witnessed members of a student government impeached for wearing mini-sombreros to a tequila-themed party, a college master hounded into resigning for publicly disagreeing with a college’s cautionary note not to don offensive Halloween costumes, and a professor accused of racism and pressured into taking a sabbatical for supporting the state of Israel’s fight against a recognized terrorist organization.

Read more here: https://www.gatestoneinstitute.org/8753/aba-first-amendment

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