The Washington Post (Danielle Douglas-Gabriel) covers the story, in an article titled "Student loan servicer MOHELA tells advocacy group to stop 'misleading claims.'" The article links to MOHELA's demand letter, which closes with,
This letter provides the SBPC [the Student Borrower Protection Center] with notice of the falsity of the above-described statements and insinuations. Consequently, if the SBPC continues to make and publish any of these false and misleading statements, MOHELA will treat that continuation as done with knowledge of the statements' falsity or with reckless disregard of their truth or falsity, which can lead to punitive damages under libel laws and other related laws. MOHELA is hopeful that you understand that MOHELA will take all appropriate action necessary to stop this conduct if you persist. MOHELA greatly values and aggressively protects its rights and reputation and intends to vigorously enforce its rights.
But MOHELA is a government entity, and government entities cannot sue for libel, regardless of whether they can show knowing or reckless falsehood.
Cassava Sciences, Inc. ("Cassava") is a biotechnology company that is conducting clinical trials for an Alzheimer's drug called simufilam. Following the second phase of the simufilam clinical trials, multiple short sellers, most of them scientists, published concerns about the integrity of the clinical trials and other studies related to simufilam. They sent letters to the Food and Drug Administration (the "FDA") that painstakingly analyzed published results, data, and methodology, published presentations aimed at investors that summarized the letters and analyzed Cassava's public representations, and posted hundreds of tweets, which were, by their nature, much less rigorous.
Cassava vigorously disagreed with the concerns expressed by the short sellers. Members of the scientific community in Cassava's position have a variety of options. They can publish a thorough, factually supported rebuttal. They can facilitate replication of their results by a neutral, unaffiliated lab. They can invite the scientists expressing concerns to review their unpublished underlying data. Here, Cassava is pursuing another approach: a lawsuit against the people who have critiqued its scientific findings….
Because the Court finds that the majority of the defendants' statements were protected under the First Amendment as statements of opinion or scientific debate, and that the fraction of statements that were adequately alleged to be defamatory were not published with actual malice, it dismisses Plaintiff's claims against all of the defendants.
Several months ago, I published several posts here on the VC arguing that the Court should have dismissed Lorie Smith's challenge to Colorado's anti-discrimination law for lack of Article III standing. [see here and here]. In response, Prof. Richard Re (UVA) took the opposite position [see here and here]; he wrote:
According to many commentators [e.g., me], the Court decided what was really a "fake" or "made up" case brought by someone who asserted standing merely because "she worries." As a doctrinal matter, these criticisms are unfounded [and] the premise underlying this popular criticism is plainly incorrect. … The Court spent several pages approvingly recounting the standing analysis issued by the court of appeals. And that discussion applied a "credible threat" standard, consistent with settled case law. . . . This is a case where the existing rules were followed. Leading cases in the area are unanimous …
This past week I gave the inaugural lecture at Catholic University Law School's "Sexuality and Gender Discussion Forum" on the question of standing in this case. This presented an opportunity to take a somewhat deeper dive into the issue, and I came away more convinced than ever that the Court's decision was deeply ill-advised, inconsistent with prior precedent, a substantial expansion of existing standing rules, and likely to wreak considerable havoc in the days ahead. Let me try to explain why.
First, the facts, as summarized in the Supreme Court's majority opinion (emphases added):
"Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing advice, and social media management services. Recently, she decided to expand her offerings to include services for couples seeking websites for their weddings. As she envisions it, her websites will provide couples with text, graphic arts, and videos to "celebrate" and "convey" the "details" of their "unique love story." … The websites will discuss how the couple met, explain their backgrounds, families, and future plans, and provide information about their upcoming wedding. All of the text and graphics on these websites will be"original," "customized," and "tailored" creations. The websites will be "expressive in nature,"designed "to communicate a particular message." Viewers will know, too, "that the websites are [Ms. Smith's] original artwork," for the name of the company she owns and operates by herself will be displayed on every one. …
[Alert readers may notice that some of these so-called "facts" - that her text and graphics will be "original," and "expressive in nature," and "communicative" - look a lot more like legal conclusions than facts. See below.]
The Court continued:
"[S]he has yet to carry out her plans. She worries that, if she does so, Colorado will force her to express views with which she disagrees. Ms. Smith provides her website and graphic services to customers regardless of their race, creed, sex, or sexual orientation. But she has never created expressions that contradict her own views for anyone—whether that means generating works that encourage violence, demean another person, or defy her religious beliefs by, say, promoting atheism. Ms. Smith does not wish to do otherwise now, but she worries Colorado has different plans. Specifically, she worries that, if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman.
Although Colorado had not yet attempted to enforce its anti-discrimination statute against Smith's wedding website business - how could it, given that she didn't have a wedding website business? - the Court held that she had standing to assert a "pre-enforcement challenge" because there was a "credible threat" that Colorado would make such an attempt in the event that she followed through with her plans.
And this was, in Professor Re's view, "entirely consistent with settled case law" on which the "leading cases" are "unanimous."
That is, I continue to believe, incorrect. Read More
As articulated by Justice Brandeis in Whitney v. California (1927), a foundational assumption of First Amendment jurisprudence is that the best remedy for potentially harmful speech, including false and misleading speech, is "more speech, not enforced silence." This extended Oliver Wendell Holmes' "free trade in ideas" model of speech in which the ultimate good is reached when people are free to exchange ideas in a marketplace without fear of government punishment (Nunziato 2018). However, the idea that an unregulated marketplace of ideas leads to the greatest public good has been increasingly challenged as our politics has become more contentious, polarized, and burdened with conspiracy theories that could potentially spread unimpeded through online networks (e.g., Sunstein 2021).
The January 6 Capitol riot provides the most striking example of this current state of affairs: Supporters of the sitting president, believing conspiracy theories about a stolen election (many of which were transmitted through social media), attacked the Capitol to disrupt the certification of the 2020 election. Of course, this is not an isolated incident—believers of conspiracy theories have been linked to numerous instances of societal harm. Supporters of the conspiracy theory-laden QAnon movement have engaged in harassment, kidnappings, domestic terrorism, and killings (Bump 2019). Those exhibiting beliefs in COVID-19 conspiracy theories—of which there are many—refuse social distancing, masking, and vaccination (Romer and Jamieson 2020), allowing the virus to spread unhindered. If conspiracy theories are causing people to engage in violent or otherwise harmful actions, doesn't the government have the responsibility to prevent those harms by limiting the reach of conspiracy theories?
It is clear that conspiracy theories (and other similarly dubious ideas) are subject to existing jurisprudential doctrine regarding defamation, imminent lawless action, threats, and false statements (Han 2017, 178). Indeed, one could argue with relative ease that at least some conspiracy theories serve no purpose in contributing to the marketplace of ideas, promoting healthy democracy, or aiding in the search for the truth, and that any personal or societal harm stemming from such conspiracy theories outweighs the merits of protecting them. But as with all other forms of speech, circumstances matter, and under current legal frameworks, only particular conspiracy theories—those that fall into one of the categories of low-value speech listed above—will be denied constitutional protection. The result is that most conspiracy theories, even those that are intentional lies, will constitute protected speech.
I've seen plenty before, but this one is from Texas Gov. Greg Abbott, and the particular target is "antisemitic speech." An excerpt from Wednesday's Executive Order:
WHEREAS, Section 51.9315(f) of the Texas Education Code requires all higher
education institutions to adopt policies detailing students' responsibilities regarding free expression on campus; and
WHEREAS, Section 51.9315(c)(2) of the Texas Education Code provides that students
should not participate in, and higher education institutions should not allow, expression that is unlawful or disrupts the operations of the institution; and
WHEREAS, antisemitism and the harassment of Jewish students have no place on Texas university campuses and will not be tolerated by my administration;
NOW, THEREFORE, I … hereby direct all Texas higher education institutions to do the following:
1. Review and update free speech policies to address the sharp rise in antisemitic speech and acts on university campuses and establish appropriate punishments, including expulsion from the institution.
2. Ensure that these policies are being enforced on campuses and that groups such as the Palestine Solidarity Committee and Students for Justice in Palestine are disciplined for violating these policies.
3. Include the definition of antisemitism, adopted by the State of Texas in Section 448.001 of the Texas Government Code, in university free speech policies to guide university personnel and students on what constitutes antisemitic speech.
The public Cortland Housing Authority (near Syracuse) required its tenants not to possess "firearms … or other weapons as defined by the laws and courts of the State of New York" on its property. In Hunter v. Cortland Housing Authority, decided Jan. 30, 2024 (though I somehow missed it), Judge Glenn Suddaby (N.D.N.Y.) held that this likely violates the Second Amendment,
First, as a threshold matter, the Court has trouble accepting defense counsel's argument that "[p]ublic housing … was assuredly not something that our Founding Fathers could have contemplated at the time of the drafting of the Constitution or the time of the drafting of the Second Amendment, [because] it just did not exist. Publicly-funded housing for low-income families was not … on their radar …. [A]s Justice Thomas said, it's a new circumstance in our modern society." To the contrary, in numerous states, past generations appear to have provided publicly funded housing for low-income families and individuals—albeit likely for less-definite terms of duration than in modern public housing—in the form of places such as publicly supported "almshouses," poor-houses, and poor-farms. Even if such historical analogues could be fairly characterized as "historical twin[s]" or "dead ringers," other relevant similarities would appear to exist to any historical regulation of firearms in boarding houses or the residences of indentured servants.
Granted, the Court does not demand that Defendants show that firearms were traditionally banned in these analogous places. The Court is dutifully mindful of the Second Circuit's criticism of reasoning from "historical silence." For example, lawmakers may not have been moved to forbid the possession of firearms by people who could not afford to own them, or the possession of firearms at locations where the firearms owner resided at the whim of a cautious or peace-keeping property owner. However, one would imagine that a thorough analysis of the Firearms Ban in question would at least start with an acknowledgment that any historical regulations of firearms in the above-referenced almshouses, poor-houses, and poor-farms would be relevantly similar to the Firearms Ban: after all, both the historical and modern regulations would impose a comparable burden (i.e., denying one the ability to defend oneself in one's—potentially congested—publicly funded residence through the use of a firearm), and both the historical and modern regulations would carry a comparable justification (i.e., preventing the unwarranted danger to others in close proximity to oneself due to the non-defensive use of a firearm).
Following the Supreme Court's remand to the Tenth Circuit, which in turn led to the remand to district court, Chief Judge Philip Brimmer (D. Colo.) rendered the following order Tuesday:
It is ORDERED that plaintiffs are the prevailing parties in this action under 42 U.S.C. § 1988(b). Plaintiffs and their counsel are entitled to recover their reasonable attorney's fees, costs, and expenses for work related to litigation before the district court. It is further
ORDERED that the First Amendment's Free Speech Clause prohibits Colorado from enforcing the Accommodation Clause of Colorado's Anti-Discrimination Act ("CADA"), Colo. Rev. Stat. § 24-34-601(2)(a)), to compel plaintiffs to create custom websites celebrating or depicting same-sex weddings or otherwise create or depict original, expressive, graphic or website designs inconsistent with her beliefs regarding same-sex marriage. It is further
ORDERED that the First Amendment's Free Speech Clause prohibits Colorado from enforcing CADA's Communication Clause to prevent plaintiffs from posting the following statement on her website or from making materially similar statements on her website and directly to prospective clients:
I firmly believe that God is calling me to this work. Why? I am personally convicted that He wants me – during these uncertain times for those who believe in biblical marriage – to shine His light and not stay silent. He is calling me to stand up for my faith, to explain His true story about marriage, and to use the talents and business He gave me to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman.
These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God's true story of marriage – the very story He is calling me to promote.
I just learned it from Third Circuit Judge Cheryl Krause's dissent from denial of rehearing en banc in Lara v. Commissioner. Black's Law Dictionary (Bryan Garner's 11th ed.) tells us that "c.a.v." stands for "curia advisari vult," which in turn literally means "The court will be advised; the court will consider," and "signal[s] a court's decision to delay judgment pending further consideration."
"In England, the phrase is still used in all Court of Appeal decisions when the judgment is reserved; that is, not delivered after the hearing." In America, for better or worse, it seems extremely rare; but in the Third Circuit, it's a thing, with the phrase generally being something like "hold the case c.a.v."
People lie to gain access to private property in a surprising variety of contexts. Civil rights "testers" create fake identities and pose as potential buyers or renters to investigate race discrimination by real estate agents and landlords. Union activists secure jobs at nonunion workplaces so they can organize the company's workers. Law enforcement agents pose as drug dealers to gain access to a narcotics warehouse. An investigative journalist infiltrates a white nationalist group so she can write a story about the group's philosophy and propensity for racially motivated violence. A private investigator working with a seniors' advocacy organization gets a job at a local nursing home to document elder abuse. In prior work, I have described these practices as "investigative deceptions," "intentional, affirmative misrepresentations or omissions about one's political or journalistic affiliations, educational backgrounds, or research, reportorial, or political motives to facilitate gaining access to truthful information on matters of substantial public concern."
Each of these situations bears important similarities. First, they all involve the intentional and material misrepresentation of the speakers' true identities, motives, and actual employers or sponsors. Second, the lies are told with the intent of deceiving the target of the investigation and the goal of gaining entry to private spaces and proximity to people who would not consent to such access if they knew the truth. Third, the access achieved through these lies potentially implicates some common law rights. Fourth, all of these liars seek a benefit not for themselves personally but for a greater social good. The information they discover will be used to enforce laws, facilitate political association, inform public discourse, and advance legal and social reforms. And finally, the persons deceived in each case would strongly prefer that the information that comes to light from these investigations not be publicly disclosed. In a sense, all of these lies could be categorized as a form of fraud.
The similarities among these types of investigate deceptions do not, however, carry over to the way that the law, ethics, and perhaps society view them. Civil rights testers, undercover police officers, and union salts are all widely accepted, legally permissible forms of investigative deception. However, much of the journalism profession disputes the ethics of undercover news investigations, and tort claims have been brought against news outlets and reporters for conducting such investigations. The legality of undercover investigations by advocacy groups has also been questioned. Some states have criminalized the investigative deceptions used by animal rights organizations, while others have enacted statutes creating new tort claims against undercover investigators; although some courts have declared those laws to violate the First Amendment, the doctrine is still evolving.
This essay explores the different contexts in which investigative deceptions are employed and seeks to understand why the lawfulness and acceptability of these lies are so divergent.
From Third Circuit Judge Cheryl Krause's dissent from denial of rehearing en banc yesterday in Lara v. Commissioner; Judges Shwartz, Restrepo, Freeman, Montgomery-Reeves, and Chung also voted to rehear the case en banc, but didn't write an opinion or join Judge Krause's:
When they ratified the Second Amendment, our Founders did not intend to bind the nation in a straitjacket of 18th-century legislation, nor did they mean to prevent future generations from protecting themselves against gun violence more rampant and destructive than the Founders could have possibly imagined. At a minimum, one would think that the states' understanding of the Second Amendment at the time of the "Second Founding"—the moment in 1868 when they incorporated the Bill of Rights against themselves—is part of "the Nation's historical tradition of firearms regulation" informing the constitutionality of modern-day regulations.
Indeed, since the Supreme Court tethered their constitutionality to the existence of historical precedent in District of Columbia v. Heller (2008), we and the other Courts of Appeals have consistently looked to Reconstruction-era, as well as Founding-era sources, and, even as the Supreme Court has acknowledged the "ongoing scholarly debate" about their relevance, it too has relied on Reconstruction-era sources in each of its recent major opinions on the right to bear arms. Notably, the Supreme Court is expected within the next few months, if not weeks, to issue its next seminal opinion, clarifying its historical methodology in the absence of Founding-era analogues.
Yet despite our own precedent acknowledging the relevance of Reconstruction-era sources, our recognition in an en banc opinion just last year that the Supreme Court relies on both Founding-era and Reconstruction-era sources, and an imminent decision from the Supreme Court that may prove dispositive to this case, the panel majority here announced— over Judge Restrepo's compelling dissent—that all historical sources after 1791 are irrelevant to our Nation's historical tradition and must be "set aside" when seeking out the "historical analogues" required to uphold a modern-day gun regulations. The panel majority then held—based exclusively on 18th-century militia laws and without regard to the voluminous support the statutory scheme finds in 19th-century analogues—that Pennsylvania's prohibition on 18-to-20-year-old youth carrying firearms in public during statewide emergencies is unconstitutional.
A financial institution shall not deny or cancel its services to a person, or otherwise discriminate against a person in making available such services or in the terms or conditions of such services, on the basis of:
(1) The person's political opinions, speech, or affiliations;
(2) Except [for a financial institution that claims a religious purpose], the person's religious beliefs, religious exercise, or religious affiliations;
(3) Any factor if it is not a quantitative, impartial, and risk-based standard, including any such factor related to the person's business sector; or
(4) The use of a rating, scoring, analysis, tabulation, or action that considers a social credit score based on factors including:
Earlier today, the US Court of Appeals for the Fifth Circuit ruled against Texas in a case where the federal government challenged the legality of the state's SB 4 immigration law. SB 4 is a new state law that criminalizes unauthorized migration, expands state law enforcement officials' powers to detain undocumented migrants, and gives Texas courts the power to order removal of migrants convicted under the law.
Today's decision is not a final ruling on the merits. Technically, all it does is uphold the district court's preliminary injunction blocking enforcement of the law until the courts reach a final decision in the case. However, one of the factors courts assess in deciding whether a preliminary injunction is warranted is "likelihood of success on the merits." And in analyzing that factor, the judges made it clear they think SB 4 is in fact illegal, and Texas deserves to lose.
Most of Chief Judge Priscilla Richman's majority opinion in the Fifth Circuit focuses on whether SB 4 is preempted by federal immigration law. For example, she concludes that the law's provisions on detention and removal conflict with federal laws granting many undocumented migrants the right to remain in the United States while they apply for asylum.
But the majority also rejected Texas's argument that the state has the power to enact SB 4 because illegal migration and cross-border drug smuggling qualify as an "invasion:"
Texas asserts that Article I, § 10 of the Constitution (the State War Clause) permits some applications of S. B. 4. The State War Clause provides:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Specifically, Texas contends that, at a minimum, S. B. 4's application to transnational cartel members is a constitutionally authorized response to an "invasion."
But Texas does not demonstrate why it would be entitled to vacatur of the preliminary injunction. Constitutional text, structure, and history provide strong evidence that federal statutes addressing matters such as noncitizen entry and removal are still supreme even when the State War Clause has been triggered. Such statutes do not pertain to laying any duty of tonnage; keeping troops or ships of war in time of peace; or entering into any agreement or compact with another state or a foreign power….
Texas has not identified any authority to support its proposition that the State War Clause allows it to enact and enforce state legislation regulating immigration otherwise preempted by federal law. One would expect a contemporary commentator to have noticed such a proposition. Instead, in The Federalist No. 44, James Madison glossed over the portion of the State War Clause at issue here by writing: "The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark…"
Thus, we cannot say Texas has persuaded us that the State War Clause demonstrates it is likely to succeed on the merits.
Thus, the Fifth Circuit rejected Texas's Invasion Clause argument (the clause in question is also sometimes called the "State War Clause"). I think this is the right result for reasons I outlined in a recent Lawfare article, and also in my amicus brief in United States v. Abbott, another case before the Fifth Circuit, where Texas has raised the same argument.
But the Fifth Circuit's discussion of the issue is fairly brief and cursory, and doesn't always make the right points. In particular, if illegal migration really does qualify as an "invasion" that "triggers" the Invasion Clause, the text suggests a state really could "engage in war" in response - even if federal law otherwise forbade it to do so. And war powers might include the power to detain or deport citizens of the enemy nation from which the migrants came.
The Fifth Circuit is nonetheless right to conclude that Texas has "failed to provide authority to support its proposition that the State War Clause allows it to enact and enforce state legislation regulating immigration otherwise preempted by federal law." But that's because there is no good evidence indicating illegal migration or drug smuggling qualify as "invasion." The text and original meaning undermine any such notion. A state facing such issues may have various problems. But it has not been "actually invaded."
While the Fifth Circuit reached the right conclusion on the invasion questions, the District Court did a much better and more thorough job of analyzing the relevant issues.
Judge Andrew Oldham filed a lengthy dissenting opinion, most of it devoted to the preemption issues, and to the argument that SB 4 might be legal in at least some applications. But interestingly, he does not consider the "invasion" argument, except to briefly note that the district court rejected it.
For those keeping score, Chief Judge Richman is a conservative George W. Bush appointee. Judge Irma Ramirez, the other judge joining her opinion, is a recent Biden appointee. Judge Oldham is one of the most conservative judges on the Fifth Circuit, appointed by Trump.
In sum, SB 4 is likely to remain blocked for some time to come, even as litigation in the case continues. This - for the moment - concludes a saga in which the Fifth Circuit imposed a temporary "administrative stay" on the district court injunction, the Supreme Court refused to lift it, but the Fifth Circuit itself dissolved the stay within hours, leaving the injunction in place until the court could consider it further.
The Fifth Circuit has now upheld the preliminary injunction, which means the law will remain blocked until the court reaches a final decision in the case or - less likely - the injunction is lifted by the en banc Fifth Circuit or the Supreme Court.
Litigation in this case is going to continue. But today's ruling strongly suggests the Fifth Circuit - like the district court - is inclined to rule against Texas on the merits. That, too, of course, might be reviewed by the en banc Fifth Circuit or by the Supreme Court.
Meanwhile, the "invasion" issue will be before the Fifth Circuit again in United States v. Abbott, which will heard by the en banc court (with all seventeen active judges participating) in April.
But plaintiff's claim that he was retaliated against for raising religious objections to the training, and discriminated against based on religion as to promotion, can go forward.
From Norgren v. Minn. Dep't of Human Servs., decided Thursday by the Eighth Circuit, in an opinion by Judge Ralph Erickson, joined by Judges Michael Melloy and Davis Stras:
We take the facts from [Aaron Norgren's complaint]…. Aaron, who continues to work at DHS, has served as a security counselor with the Forensic Mental Health Program for nine years….
[Aaron and his father, Joseph, who also worked at DHS, received an email] … instructing him to complete [online] workplace trainings titled, "How to be Antiracist (CRT Training)" and "Understanding Gender Identity and Expression: Moving Beyond the Binary." … Commissioner Harpstead also emailed employees that the trainings were necessary to foster "brave conversations" and "change … minds for life" and DHS Assistant Commissioner Karen McKinney told employees that "we need all of you to do this."
The Norgrens alleged that the trainings instructed employees to speak or refrain from speaking on certain political and ideological matters. For example, the trainings mandated a minute of silence for George Floyd. They also directed employees to stop using the phrase "I am not a racist" as a defense, to admit to a specific definition of the word "racist," to confess to racist policies they supported, and to accept that the United States is the root of racist ideas. The Norgrens alleged the gender identity training instructed them to refrain from telling others that their gender identities are wrong. The Norgrens opposed the racism training as violative of the traditional view of equality under Title VII, and they opposed the gender identity training as contrary to their sincerely held religious beliefs….
In February, I participated in an important panel at the American Bar Association Midyear meeting on viewpoint diversity. I will write much more about the event in due course. The video is below, and you can download the transcript here.
Here is the panel description:
Are the ABA and the legal profession doing enough to promote viewpoint diversity? A panel including longtime ABA members with diverse approaches will discuss the issue of viewpoint diversity at the ABA and more broadly.
Welcome and Introduction: Mary Smith, President of the American Bar Association
Panelists:
Josh Blackman, Centennial Chair of Constitutional Law at the South Texas College of Law
Ellen Rosenblum, Attorney General of the State of Oregon
Juan Thomas, Of Counsel, Quintairos, Prieto, Wood & Boyer P.A.
Philip D. Williamson, Partner, Teft Stettinius & Hollister LLP
Moderator: Hon. Danny J. Boggs, U.S. Court of Appeals, Sixth Circuit
This panel will discuss whether ABA policies, programs, and membership sufficiently reflect the diversity of viewpoints within the legal profession. Then-ABA President and future Supreme Court Justice Lewis Powell warned almost 60 years ago: "it is essential that the basic policy of avoiding political involvement be strictly followed except where issues clearly involve the Association's primary responsibilities," arguing that delving into partisan politics "could jeopardize the Association's very existence." As the self-described "national voice of the legal profession," the ABA represents all types of lawyers, with differing political views, and has now adopted many policy positions "on diverse issues of importance to the legal profession" including access to justice, criminal justice reform, gun violence, social justice in voting and many more.
Recognizing that we live in an era of sharp political and policy divisions, a recent ABA president asked that we as attorneys focus on "civics, civility and collaboration" to collectively restore confidence in our legal system. Other leaders urge that the ABA must speak out on controversial issues, on which consensus does not exist, even when lawyers disagree. One of our panelists recently observed in the ABA Journal that the Association "needs ideological diversity to ensure its future." While recognizing that "many attorneys contend that the ABA is insufficiently progressive and the bar is too conservative," he argues that present policies and positions of the Association lack the full spectrum of views, "alienate conservative lawyers" and have likely contributed to declining membership and "a growing disconnect" with state bars on issues of professional conduct and diversity. A new caucus within the ABA has organized to investigate and advocate on these issues and hopes this panel starts a conversation about diversity of viewpoints and professionalism within the ABA.
