That’s it? What we might call in today’s vernacular “snowflake hurt”? Snowflake hurt
is no harm at all, or nominal harm at most,
and is merely the acceptable consequence
of the robust verbal rough and tumble that
accompanies our revered foundational principle of free speech. Snowflake hurt, which
must be endured by each of us willingly if
not cheerfully, daily, is part and parcel of the
free society we enjoy as Americans.
My advice to the associate? #chilloutbro
(I try to speak their language.) Find a safe
space and wait quietly until the sensation of
deep offense completely subsides. If it happens within a reasonable time, congratulations, success in the legal profession is yet
thinkable. And it’ll get easier with practice.
But if it does not go away, or takes inordinately long, consider a move to China or
North Korea, where “the birds have ears
and the bees have eyes,” and even family
members routinely rat each other out to
the thought police. See Life and Death in
Shanghai by Nien Cheng, or In Order To
Live by Yeonmi Park.
John Milton ran afoul of government
censors in 1644 and chose at considerable
personal risk to directly challenge his masters
in a speech before Parliament, quoted in part
above. Now nearly 400 years later, nothing
has changed. Powerful lawyers whose core
function is to protect your rights meet on
weekends in vacation destinations scheming
to take them away. And minions across the
land back them up. When Section 8. 4(g) of
the Model Rules comes to a theater near
you, as it inevitably will, resist it. And if it is
adopted in Arizona, as it full well may someday be, defy it. Let John Milton’s fine example be your guide.
—Stephen W. Baum
P.S. I wonder if Ethics Counsel would
opine that this very communication, which
is arguably “derogatory or demeaning” to,
or “manifests bias” toward, Ethics Counsel,
would “clearly be prohibited” by the Model
Since the Model Rule proscribes only “conduct,” it is fair to ask
if speech is even covered. Comment 3 to the Model Rule answers
that question, uncorking the spectacular euphemism “verbal …
conduct.” We are all familiar with Supreme Court cases holding
that conduct (e.g., flag burning) is speech in order to gain the
protection of the First Amendment. Here, drafters of the Model
Rule have perversely concocted “verbal … conduct” in an apparent attempt to avoid the protection of the First Amendment. (It
should be noted that the specious turn of phrase actually used
in Comment 3 is “verbal or physical conduct,” obscuring all the
more the sinister ultimate objective of suppressing free speech.)
The tenuousness of this ruse is exposed by merely substituting “speech” for “verbal … conduct” in the text of Comment 3:
“[D]iscrimination includes harmful speech … that manifests bias
or prejudice towards others. Harassment includes … derogatory
or demeaning speech.” This is just another attempt by end-around
to punish “hate speech.” But “hate speech” (as commonly understood), last I checked, is still eminently protected by the First
Amendment, as are lawyers from attempts by government to limit
their speech via bar rules. See Shapero v. Ky. Bar Ass’n, 486 U.S.
466, 469 (1988).
What a joke. What a joke it must be. Let’s hear the joke. I challenge Ethics Counsel, for our compleat edification, to tell us all the
joke that Ethics Counsel considers so odious as to warrant bar discipline under the Model Rule. And then tell us who decides what
constitutes a racist or sexist joke, or racist and sexist (presumably
twice as reprehensible)? All hearers? A majority by show of hands?
The listener with the most delicate sensibilities? A judge who tells
us “I know it when I hear it”? Are listener(s) the victim(s)? (Who
else? Humankind? Womankind? Soccerkind? (the WNBA?)) To
complain, must the listener(s) be the same race and gender as the
soccer player (who is presumably the butt of the joke)—
otherwise, is there standing? What if the listener is only mildly offended
rather than deeply offended (or more likely (excuse my cynicism)
feigning deep offense in order to sanctimoniously virtue-signal by
punishing others for bad taste or thinking out loud)? What if the
partner telling the joke is the same race and gender as the soccer
player? What if the joke’s butt is instead a male, white, Christian
chess player? What if the joke is an adept double entendre that is
merely misconstrued? What if instead of awkward silence, a suppressed chuckle or a hearty guffaw is heard? Is mirth a defense?
The enduring beauty of the First Amendment is that none of
this nonsense matters. A mere joke, howsoever heinous, is protected speech in the United States of America. And a lawyer’s free
speech should be no less protected than that of any other citizen.
Why didn’t this niggling detail cross the minds of the Delegates,
or enter into Ethics Counsels’ calculus?
And what about harm? Where is the harm? On pain of bar
discipline and possible disbarment, shouldn’t the harm be severe,
pervasive, lasting, objectively damaging harm? Harm prejudicial to
the administration of justice? What have we here? Deep offense?
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