Has the ABA Abandoned the First Amendment?

It is a concept that can eventually wend its way into the workers’ compensation industry, and that thought should chill you to the bone. Lawyers, whether you love ‘em or hate ‘em, are in many ways the final vanguard of protection for our rights as US citizens. They are the soldiers trained to represent and defend us; assuring our rights and fair treatment under the law. So when the American Bar Association recently adopted Rule 8.4(g) of the ABA’s Model Rules of Professional Conduct, which institutes a “Speech Code” for lawyers, we best start paying attention. If this rule is adopted by state and local organizations as well as courts, it could have far reaching consequences. Limiting the free speech rights of the people who must represent our interests is a dangerous path, indeed.

A lawyer friend last week forwarded to me a video of Eugene Volokh, a noted First Amendment expert and Law Professor at UCLA. In it, Professor Volokh quickly outlines the dangers and concerns the legal community should have about this concept. Under this rule, lawyers are not just subject to restrictions within the courtroom, but in any legal setting or debate. And complaints from alleged violations of this rule could lead to sanctions, suspension or worse.

The rule, as adopted, reads as follows:

It is professional misconduct for a lawyer to:

 (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination 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. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

While sound minded people oppose discrimination on the basis of race, sex, religion, etc., it is the fluid nature of discriminatory interpretation today that is presenting true concerns. In our ultra PC world, even simple terms such as “he”, “she”, “him”, “her” or “mankind” can now be offensive and discriminatory based on the perception of the party hearing the terms. As former Attorney General Edwin Meese said of this rule when proposed:

The rule’s official comments sweepingly interpret discrimination “related” to practicing law to include “verbal conduct” and “business or social activities.” Anything a lawyer says to another person — whether speaking in church or over dinner — sharing his viewpoints on same-sex marriage, transgenderism, Black Lives Matter or illegal immigration, would enable any hearer to file a complaint with the state bar authority.

There is a saying, often attributed to 18^th century writer Voltaire but is believed to be the creation of historian Beatrice Evelyn Hall, that says, “I disapprove of what you say, but I will defend to the death your right to say it.” When I was in school the origin of that phrase was attributed to founding patriot Patrick Henry. Nevertheless, no matter who originally uttered those words, they were a foundational lesson in the importance and sanctity of our First Amendment rights.

Today, we are somehow morphing “will defend to the death your right to say it” into “will assure my right to hear no contradicting ideas.” I know many today will disagree with me, but this is not a good thing. Not a good thing at all.

The encroachment on free speech rights in this nation started on the hallowed grounds of higher education; ironically the same hallowed grounds that 50 years ago hosted the fight for enlightened dialogue and unencumbered speech. Today these insular institutions offer safe spaces, free speech zones and “acceptable speech” criteria. Words deemed offensive are banned. Students who use gender specific pronouns are penalized, while the scrawling of political propaganda on sidewalks is labeled hate speech. 

Now, the legal guardians of our constitutional system are potentially subject to similar rules and restrictions. And when both your education and legal systems become tightly controlled by political correctness that determines “approved thought”, your entire social structure could be imperiled.

Can you imagine the day in workers’ compensation where mental claims might be compensable solely based on words people heard? You may say it is a ridiculous notion (you would be right), but it is not an impossible one. Last year students at Lebanon Valley College in Pennsylvania protested to rename a gymnasium named after retired college president, Clyde Lynch. The reason? “Lynch” was an offensive word. At Mount Holyoke College, a premier women’s institution, a planned performance of the play “The Vagina Monologues” was cancelled as it could be offensive to “women without vaginas”. Colleges and universities today are calling in grief counselors for what, to many of us, are the slightest of possible infractions and offenses.

Those same students of today are the workers of tomorrow, and now the people who will both champion their causes and defend their employers, as well as those who will sit in judgment over the entire process, are potentially adopting similar restrictions on open language and free thought. Our industry will very possibly be steered to an entirely new world of injury and disability; one based on thought protocols and political correctness. I would say we best be prepared for that, but I don’t have the slightest idea how we would go about it.

At least that is what I think. You don’t have to agree with me. But, for today, it is still my right to say what I believe.

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

– Martin Niemöller