Free Speech

Arizona Supreme Court Rejects Proposed Lawyer Speech Code (Rule 8.4(g))

The rule would have banned, among other things, "harmful verbal ... conduct that manifests bias or prejudice towards others" "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," including "in bar association, business or social activities in connection with the practice of law."

|The Volokh Conspiracy |

Yesterday, the Arizona Supreme Court announced that it was rejecting the proposal; for more on why I think that's right, see this post. So far, it appears (based on data gathered by the Christian Legal Society), that

  • Arizona, Illinois, Minnesota, Montana, Nevada, South Carolina, and Tennessee have rejected the proposal.
  • The Louisiana, South Carolina, Tennessee, and Texas Attorneys General have issued opinions concluding that the rule is likely unconstitutional.
  • The Montana legislature adopted a joint resolution taking the same view.
  • Vermont is the only state that has adopted the proposal.

NEXT: Is Bank of America Really Cracking Down on Undocumented Immigrants?

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  1. My non-lawyer comment (based on 20 yrs experience in busy workaday criminal courts) is a point I have been graciously allowed to allude to several times in the Volokh forum, but have never formulated quite satisfactorily.

    We all know that in the actual real world only a small percentage of most non-lethal crimes anymore rate much of an investigation, much less prosecution and adjudication all the way to significant punishment.

    The funny thing, is that is even true in most courtrooms, of things exclaimed or muttered on the record or at least within earshot of the continuously recording video systems. The truth is most judges pretend not to hear a lot of stuff that could be contempt of court and even prosecutors can develop deaf ears if a case has already snowballed into way too much paperwork.

    Most offensive hate stuff erupts from the mouth of defendants, but sometimes from witnesses, or victims, or families of victims, or lawyers themselves, who I might add are a class of highly overworked and often extremely frustrated people. I learned very quickly, however, that reporting it every time one overheard one attorney wandering around fantasizing aloud about sodomizing another attorney with a broken bottle is a quick and sure way to bring all imaginable types of legal misery down upon one’s own head.

  2. So the only state that sends a Socialist to the Senate is also the only state that hates the 1st amendment.
    Funny how that worked out.

    1. So if a lawyer were to repeat Bernie’s latter day “Cross of Gold” rant against billionaire bankers, would that count as bias or prejudice towards others on the basis of “socioeconomic status” and be subject to sanction? How about if the rhetoric is directed against a former president of a college whose shady financing of a real estate deal bankrupted said college and got a golden parachute before the poop hit the fan?

      1. Politics *is* religion. Both are so convinced of the inherent rightness and righteousness of their positions, detailed control of other peoples’ lives is authorized.

        It’s a farce in slow motion, but the right wing is learning to weaponize all these “great ideas” of the left and use them.

        Those who do not learn from history and all that. Which in this case is trying to work around the absolutist nature of the First Amendment. Those fools! Why should we be bound by the ideas of slave owners 250 years ago? Pure simple majoritarian democracy can wield those powers safely!

  3. I disfavor the described Rule 8.4(g).

    Bigots have rights, too. Those rights should be protected, even as the bigots work against others’ rights.

    1. When racism and bigotry are redefined to include disagreement with someone about politics or policy, the terms have lost all meaning. Fortunately, the First Amendment eliminates the need for redefining or excluding words and the subjective examination of a speaker’s thoughts, even where the speaker is a lawyer.

  4. There is an exception to the casual, almost lackadaisical or random way that most laws get enforced, however, and that is if one should happen to threaten an important political interest. Then a special prosecutor may be assigned to pursue and destroy you by the intense investigation of your historical background for even the hint of a violation of all known laws, plus any process crimes that might accrue during the infinite and quite brutal on your family and associates period of the investigation itself.

  5. Pursuing the qualitative difference between the rule of law as done by the blindfolded lady in our usual haphazard world and the rule of law as it presents when a special prosecutor commences political predations, I assert:

    Targeted, intense investigations often open libraries of rarely-used statutes of the kind law professors can chew over so entertainingly.

    No political prosecutor operates without an arranged PR program standing by, basically a media propaganda escort service. Some prosecutors are advantaged by a newspaper of record setting a favorable partisan narrative every day. If you miss it, at 7 a.m. it will lead on network A. If you miss that, at 8 network B will recap it. If you miss that, at 9 network C reprises it basically word for word. When you get home in the evening public network D will be iterating almost verbatim the day’s talking point. Miss that, foreign network E will read you to bed with it.

    Wake the next day and downstream derivative talking heads will still be reminding you of yesterday’s critical message (the Foxy exception proves the rule.)

    So I postulate: if we have effectively a horizontal mono-culture media with highly uniform ideological weltanschaungs, would not ultimately the consequence be to under-inform the public and narrow its perspectives?

    1. If the objective is to control nations, appreciate that sublime propaganda minimizes use of easily-countered outright untruths. The optimal technique is to disseminate Fake News composed of fractional-truths while studiously blacking out certain real news that can not be mentioned in any doctored even artfully spun form. Simply never, ever mention it! Mono-culture media even in America, the First Amendment Paradise of the World, become stunningly, chillingly impressive in these times with their steely Stalinist discipline and totalitarian technique.

      They don’t even blink.

      The sad but undeniable effectiveness of Fake News generates the public misperceptions that become harnessed to over-authorize runaway witch hunters. The political hysteria party has a license to track down and bag something. It might just be the Constitution of the United States.

      1. To summarize, the effectiveness of silence as a mass propaganda device hinges on the unblinking Real News black out bit. Imagine intellectual life behind the Iron Curtain if there had never been Radio Free Europe. Imagine an America in which the monopolistic major media of the day never got around to mentioning to the patriot masses in the 13 breakaway colonies that Benedict Arnold (Washington’s bosom friend and commander of the critical West Point bastion) had gone over to the British! In fact, many Americans might not even learn of this to believe it until 1950 when an Attorney General finally unclassifies the last documents.

        1. Trump’s latest tweets of outrage over the FBI investigations being opened targeting GOP Congressmen on what appear to be suspiciously slim grounds raise the specter of the weaponized FBI and the Fake News cudgel that supports it being actually able to cull Congress of enough Republicans to get that impeachment vote the Dems dream about.

          Of course, something like all-out civil war will flash from this as surely as the Hindenburg trying to fly through a fireworks display during a gasoline cloudburst, but the Democrats are apparently going for it.

          It is a crying shame I am too old and too poor to grab up my pitchfork and fly to some hotbed of conservative pushback and perish on a brave barricade as in Les Miserables. No, I will just sit here and have this little essay contest with myself on Eugene V.’s dead thread, and even here I come in second best!

          Would you ever imagine that I once managed to sell op-ed columns to many major newspapers in the U.S.A.? Including one that the New York Times used Nov. 1, 1989, which is almost too ancient to research nowadays. It bothers me that the papers that used the most of my stuff, like the Houston Post, are gone now. I even sold columns to the Arkansas Gazette, but I doubt the Clintons regularly read the local Little Rock newspaper all the years they were in town. That’s not quite how the new progressive elites that will be controlling us operate.

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