The Volokh Conspiracy
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No California Bar Discipline for Lawyer Who Tweeted "They Should Be Shooting the Looters" and "Shoot the Protesters"
"Respondent presented this court with a credible and reasonable interpretation of the meaning behind her words, i.e., that she posted the above-noted tweets as an expression of her anger, fear, and frustration with the violence taking place around her and in disagreement with some of the sentiments she saw being expressed by others on Twitter."
Yesterday's decision by State Bar Court of California Judge Dennis Saab in In the Matter of Brown stemmed from the Office of Chief Trial Counsel of the State Bar of California (OCTC) charging a lawyer with, among other things, engaging in "moral turpitude" and violating state and federal law "by directing others to commit acts of violence." Here's an excerpt from the (long) opinion (for more factual details and for more on the other charges, see the full opinion):
OCTC alleges that, between May 29 and May 31, 2020, Respondent committed acts of moral turpitude by posting certain tweets "that directed other[s] to commit acts of violence, including calls to shoot, summarily execute, and burn down the homes of members of the public." In particular, the [OCTC] alleges the following tweets constituted misconduct: (a) "Can't wait. At least a reason to shoot them" (Tweet No. 1); (b) "They need to be shot" (Tweet No. 5); (c) "Yes and they should be shooting the looters" (Tweet No. 14) and "They should be shot. And if it was your business you'd pull the trigger" (Tweet No. 15); (d) "Shoot the protesters" (Tweet No. 7); (e) "Let's burn your house" (Tweet No. 13); and (f) "Omg Scarborough you've hit a new low in stupidity. Let's go burn your house down with you in it" (Tweet No. 10).
Because [this count] charges Respondent with misconduct based purely upon the content of her speech, the protections of the First Amendment are implicated.
Brandenburg is the seminal case addressing the protections of the First Amendment as applied to speech that advocates for violence or illegal action. In Brandenburg, a Ku Klux Klan leader stated to those gathered at a rally, which was covered by media and shown on television, "if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." The leader also announced a march on Congress. As a result, the leader was charged with a violation of the Ohio Criminal Syndicalism statute, which prohibited (1) advocating crime, violence, or unlawful methods of terrorism as a means of accomplishing political reform; and (2) gatherings with the purpose of teaching criminal syndicalism. In finding that the Ohio statute violated the First Amendment, the Court distinguished mere advocacy (protected speech) from incitement to imminent lawless action (not protected speech)—the latter involving intent to provoke lawless action and circumstances that would suggest that such action is imminent and likely to occur.
OCTC contends that Brandenburg is not applicable to Respondent's speech because of the fact that she is an attorney. However, Respondent was not speaking in her capacity as an attorney and the court did not receive any evidence demonstrating that her speech was prejudicial to the administration of justice or otherwise related to the practice of law. Therefore, the court sees no basis to afford it diminished protections as "attorney speech" and OCTC must establish that Respondent's speech is otherwise unprotected. Under the test established by Brandenburg, in order to establish that Respondent's speech crossed the line from mere advocacy into unlawful incitement, OCTC must establish: (1) Respondent's culpable state of mind, i.e., that she had the specific intent to incite imminent lawless action; and (2) that such imminent lawless action was likely to occur, i.e., a listener was present who was able to understand and follow through on Respondent's intent.
Though OCTC challenges the applicability of Brandenburg to this attorney disciplinary proceeding, it maintains that the elements of the Brandenburg test have been met. OCTC argues that Respondent's intent is established by looking at the plain language of her tweets, the socio- political context in which they were posted, and the numerosity of her tweets. OCTC further argues that the imminence and likelihood requirements are established because the tweets were posted during the ongoing protests, a volatile environment fueled by anger over the excessive use of force by police that had been building to a tipping point, making it likely that someone would respond to the calls for violence. The court does not agree.
Preliminarily, the court notes that Respondent's tweets cannot be understood in isolation from their context because it is context that gives meaning to our words and actions. Moreover, Respondent's individualized perception of the events going on around her is particularly relevant to understanding her motivation for and intent behind the statements made in her tweets.
Significantly, more than two hours before Respondent posted her first tweet, small riots had erupted in parts of Los Angeles. Yet instead of looking to the specific context for each of Respondent's tweets, OCTC focuses on the generalized global context during the relevant time frame, presenting an incomplete and selective picture of the circumstances giving rise to Respondent's tweets.
For example, the specific context of Tweet No. 1, which was posted at 7:53 p.m., is not entirely known because only tweets from two of the three individuals that Respondent was replying to were presented. From the information that was presented, it appears that Respondent was merely reacting to someone else's post about events going on in Washington D.C. Moreover, "Can't wait. At last a reason to shoot them" is an expression of a provocative opinion, not a directive. Even if it were viewed as a directive, it is not clear to whom the tweet would have even been directed nor that any person in a position to so act even saw the tweet.
The same is true of Tweet No. 5 ("They need to be shot"), Tweet No. 10 ("Omg Scarborough…Let's go burn your house down with you in it"), Tweet No. 13 ("Let's burn your house"), Tweet No. 14 ("Yes and they should be shooting the looters"), and Tweet No. 15 ("They should be shot…if it was your business you'd pull the trigger"). These tweets were all posted while riots were taking place in and around Los Angeles and are not specific calls for action directed to anyone in particular. Tweet Nos. 5, 10, and 13 were replies to other individuals, but the crucial context for Respondent's statements, i.e., the tweets that precipitated such a response from Respondent, were not presented in evidence. And Tweet Nos. 14 and 15, which are phrased as commentary on something that someone else said, also appear to be missing necessary context.
The only tweet that can arguably be seen as a directive, is Tweet No. 7 ("Shoot the protestors"), which was apparently posted in reply to an earlier tweet that was warning protestors at the intersection of Fairfax Ave. and La Cienega Blvd. that police were on their way. However, it was not established to whom Respondent's tweet was directed nor that any listener was at or near the intersection of Fairfax Ave. and La Cienega Blvd. at the time that Tweet No. 7 was posted. Significantly, Tweet No. 7 was posted at 6:17 p.m. on May 30, 2020, while full- scale riots were underway in parts of the city, including looting and violence near Respondent at the Grove.
In evaluating whether OCTC has established the requisite evidence of Respondent's intent, this court must resolve all reasonable doubts about culpability in favor of Respondent and must choose the inference leading to innocence if equally reasonable inferences may be drawn from the facts. Here, Respondent presented this court with a credible and reasonable interpretation of the meaning behind her words, i.e., that she posted the above-noted tweets as an expression of her anger, fear, and frustration with the violence taking place around her and in disagreement with some of the sentiments she saw being expressed by others on Twitter. Respondent did not use any Twitter feature to widely enhance her tweets or to otherwise ensure they might be viewed by people who could and would act as she suggested.
And, when it was brought to her attention that her tweets had upset people, she expressed immediate regret and remorse over her incredibly poor choice of words. In view of the totality of the circumstances surrounding Respondent's tweets, the court finds that there is not clear and convincing evidence that Respondent intended for her words to incite imminent lawless action. Rather, the evidence tends to show that Respondent's speech was an ill-advised and careless expression of her thoughts and emotions in response to her perceived experience.
Even if Respondent's intent had been established, OCTC failed to establish that the circumstances of Respondent's speech were such that it was likely to incite imminent lawless action. It was not clear who was the intended audience for the tweets nor that any person in that audience was able to understand the directive communicated by the tweets and was in a position to act on such directive. {In Hess v. Indiana (1973) the Court held that because Hess's statement "[w]e'll take the f---ing street later" or "[w]e'll take the f--ing street again" at an antiwar demonstration was not directed to any person, it could not be incitement and was protected speech. [Expurgation in State Bar opinion. -EV]} Respondent did not specify where or when the communicated action was to occur. {The tweets did not direct people to shoot protestors at any particular location nor did they disclose the home address of Scarborough and/or any address for that matter.}
No witness was presented that saw the tweets at, or even near, when such tweets were posted. None of the five protestors who testified at trial saw Respondent's tweets while at a protest. The Twitter symbols under Respondent's tweets showed only one of her tweets received any comments (Tweet No. 7)—none of which were presented in evidence—and only one of Respondent's tweets received any likes (Tweet No. 14). As for the other tweets, the Twitter symbols were either missing or contained no evidence of comments, re-tweets, likes, or direct messages. In sum, assuming arguendo that it had been shown that Respondent intended such action—shooting protestors and burning Scarborough's and/or other person's homes—there was not clear and convincing evidence to establish that such action was both imminent and likely to occur.
The court acknowledges that the State Bar undoubtedly has a strong interest in the protection of the public, the preservation of confidence in the legal profession, and the maintenance of the highest professional standards of attorneys licensed in this State. However, while the State Bar may have a special interest in regulating attorney conduct, this does not give the State Bar the unfettered authority to regulate attorneys in their daily lives to censor unfavorable speech that it deems "reprehensible, unethical, and outside the bounds of good moral conduct expected of attorneys." OCTC's concern for the potential adverse effect on the public perception of lawyers and confidence in the fair administration of justice is purely speculative and based on the subjective effect on potential listeners. Therefore, it is not a compelling justification for the infringement upon Respondent's freedom of expression.
Although the Court does not condone Respondent's tweets, which are unbecoming of an attorney, OCTC did not show that Respondent had the intent to incite imminent lawless action, that her tweets were likely to be heard by an audience that would understand her intent, nor that such imminent lawless action was likely to occur as a result of her tweets. Therefore, Respondent's pure speech, which is otherwise protected by the First Amendment, cannot be the sole basis for professional discipline ….
Brown "was represented by attorneys Anthony Radogna of the Law Offices of Anthony Radogna, Krista L. Baughman and Jesse D. Franklin-Murdock of Dhillon Law Group Inc., and Christopher Brizzolara."
