The American Bar Association is having trouble with its campaign to stifle the free speech rights of its member lawyers, according to a new report.
The ABA, in its Rule 8.4, uses vague terms such as “deragotory” and “demeaning” to categorize various forbidden statements and to punish lawyers who violate its standards.
In part, the rule states, “Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such 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 Alliance Defending Freedom argues the speech code “would subject attorneys to professional discipline for merely engaging in speech that another might find ‘derogatory,’ ‘demeaning,’ or ‘harmful’ – terms so broad and subjective as to sweep in a host of constitutionally protected speech.”
And the restrictions apply to lawyers whether they are in court, communicating internally inside their own law firms, working in bar association events or “even in social settings.”
ADF Senior Counsel Bradley Abramson said the Montana legislature is the most recent critic.
While the rule has been adopted by the national association, individual state supreme courts must authorize it before it is applicable in the states. The Montana Supreme Court is considering the move.
In response, the Montana Senate and House of Representatives have adopted a joint resolution declaring that adopting the rule would be unconstitutional, violating the First Amendment rights of Montana’s attorneys.
Among the problems the lawmakers found were that the rule tries to regulate attorney conduct that the legal profession has no legitimate interest in controlling. And it would interfere with the ability of Montana lawmakers, many of whom are lawyers, to carry out their legislative duties.
His report pointed out that the opposition to the speech rule began even as the ABA discussed the plan.
“Of the 481 comments filed with the ABA prior to its adoption, 470 opposed the rule, many on the grounds that the new rule would be unconstitutional,” he wrote.
For instance, the Christian Legal Society contended it essentially imposes a “cultural shift” on all lawyers.
“It seems to inject a rule of conduct that is better understood as advancing a particular theory of social justice,” the group said.
Further, it would directly pose “significant threats to attorneys’ freedoms of speech, expressive association, assembly, and free exercise of religion.”
“The proposed rule creates a cloud of doubt that will inevitably chill lawyers’ public speech on one side of these current political and social issues, while simultaneously creating no disincentive for lawyers who speak on the opposing side of [sexual orientation, same-sex ‘marriage’ and more],” the group said.
Abramson pointed out that even the ABA’s own Standing Committee on Attorney Discipline and the Professional Responsibility Committee of the ABA Business Law Section warned that the new rule may violate attorneys’ constitutional rights.
“Last December, the Texas Attorney General announced his opinion that the rule is an unconstitutional restriction on attorneys’ free speech, free exercise of religion, and freedom of association rights,” the report continued, “And earlier this year, the National Lawyers Association’s Commission for the Protection of Constitutional Rights issued a statement declaring that the rule would violate attorneys’ free speech, free association, and free exercise rights under the U. S. Constitution.”
Other state groups that have opposed the speech restrictions include the Illinois Bar, Pennsylvania Supreme Court Disciplinary Board and South Carolina Bar Committee on Professional Responsibility, he reported.
“The South Carolina Bar’s Committee on Professional Responsibility explained that the new rule is unconstitutionally vague, unconstitutionally overbroad, and constitutes an unconstitutional content-based speech restriction.”
It’s not the first time the ABA has adopted a plank of the progressive agenda.
Last year, WND reported the ABA was accused of trying to “purify” itself of those who believe men and male and women are female.
Herb Titus, who taught constitutional law for 26 years and was the founding dean of Regent Law School, and Bill Olson, who served in three positions in the Reagan administration, practice law at Bill Olson, P.C., and wrote an article for a series created by the United States Justice Foundation.
They have posted at the Federalist Society for Law & Public Policy Studies a critique of a proposal from the ABA.
The organization was reviewing a plan to redefine “professional misconduct” if anyone “in conduct related to the practice of law,” discriminates against anyone “on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.”
The ABA said this “applies to conduct related to a lawyer’s practice, of law, including the operation and management of a law firm or law practice.”
Titus and Olson contend it’s the ABA’s “plan to politically purify the legal profession.”
“Justice Samuel Alito got it right. Dissenting from the Supreme Court’s same-sex marriage decision and responding to the majority’s reassurance that those who oppose same-sex marriage would have their ‘rights of conscience … protected,’ Justice Alito cautioned: ‘We will soon see whether this proves to be true. 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,'” the two wrote.
The dispute developed as the ABA’s ethics committee decided to adopt protections for people confused about their gender identity.
Further, the chief justice of the Alabama Supreme Court, Roy Moore, now under a lifetime suspension for his view that marriage is the union of a man and a woman, wrote to Dennis Rendleman of the ABA Ethics Committee.
He charged the organization was elevating “sexual behavior, appetites, and self-styled identity to the level of unchanging characteristics such as race, sex, ethnicity and national origin.”
“I am under no illusions that the ABA is a conservative or even an apolitical organization, but I would expect it to defend the sanctity of the attorney-client relationship rather than punish attorneys who have sincerely held religious or traditional beliefs and wish to obey God and their conscience,” Moore wrote at the time.
He told the ABA, “By subordinating an attorney’s ethical duties to the sexual orthodoxy du jour, the proposed rule will relegate attorneys with traditional religious views to either self-censorship or professional scorn.”