In the month since students at Stanford Law School shouted down Judge Stuart Kyle Duncan at a Federalist Society Event, the media, politicians, and the online-o-sphere have dutifully performed the requisite Gnashing of Teeth. Certainly, serious discussion of the students’ actions, the university’s response, and the principles of free speech is warranted and important (though one might reasonably question whether the amount of attention paid to what law students are doing is a bit…excessive). But weaving its way through the discourse has been a darker, punitive, thread asking: how should vengeance be exacted upon these students?

My views on shouting down speakers at hosted campus events are well-documented: I consider it unacceptable to prevent a speaker from being heard by those who invited them so that they could hear them, and I think it is a counterproductive tactic that more often engenders sympathy for the speaker. Even so, while I have criticized students for engaging in these actions and administrators for not taking action to prevent it, I have always stopped short of calling for institutional discipline for students—believing that education is ultimately more effective than punishment (administrators who should be responsible for taking corrective action is another matter entirely). That’s not to say that discipline is never warranted; some instances may be so egregious that it is indeed called for.

Stanford Law’s administration apparently believes that this is not such an instance (and that it could not effectively determine who was disruptive and who was not), opting instead to require a half-day training for all students on “freedom of speech and the norms of the legal profession.” Reasonable minds can disagree with this institutional approach. But some have decided that disagreeing is simply not enough: if Stanford won’t punish the students, someone else should—and it should imperil their entire legal career.

George Washington University law professor John Banzhaf bombastically proclaimed that he would file a character and fitness complaint against “the students” (presumably all Stanford Law students, since he doesn’t know who they are) with the California state bar, questioning whether they have the “proper temperament to practice law.” The Manhattan Institute’s Ilya Shapiro argued with a straight face that what the Stanford students did should be considered worse than a DUI—a criminal offense that endangers the lives of others—for bar admission purposes. And now the Texas Board of Law Examiners, in response to a letter from Ted Cruz, has declared that it will “add questions to the bar application to inquire of applicants directly concerning incivility and violations of school policy.” Never one to let someone steal the spotlight, Banzhaf immediately announced that he would ask other senators to request the same in their own states.

One need not approve of the Stanford students’ actions to find this proposition troubling, with implications reaching far beyond the controversy du jour.

Virtually every state bar describes the purpose of the character and fitness using language like “protection of the public and safeguarding the administration of justice,” and “ensuring that members of the bar are worthy of the trust and confidence placed in them with respect to professional duties.” That is, to protect against unscrupulous or dishonest lawyers, and ensure that applicants will be able to abide by the rules of professional conduct they will be subject to once admitted to practice.

So if the students had traipsed into Judge Duncan’s courtroom and impeded its operations by shouting and protesting, these folks would have a good argument: a clear display of willingness to impede the administration of justice surely reflects on a prospective attorney’s ability to perform their duties in compliance with professional standards.

But that’s simply not what happened. The students disrupted a speaking engagement, not a courtroom. True, it was an event at a law school, featuring a judge. But it seems a stretch to argue that law students who would disrupt an event that in no way approximates any professional practice setting have demonstrated that they would act the same in the course of representing a client or appearing in court. After all, people speak in very different ways depending on the forum and context. I myself speak one way on social media, which differs from how I speak in media interviews, which differs from how I speak to a court. The argument feels similar to a frequent pearl-clutching response on Twitter: “why would you talk like this, would you say the same thing in court?” Well, of course not. I am aware of what forum I am in, and my language and tone is tailored accordingly.

Were the students’ actions appropriate for the forum and context? No.

But does that mean that the students were unaware of the difference between a speaking event and the forums they will find themselves in (as well as the interests that will be at stake) as practicing attorneys? I think the answer to that is also “no.”

That students were rude and uncivil to a judge seems to factor in heavily for those who believe that this should be a character and fitness issue. Ted Cruz wrote in his letter:

These protestors continuously interrupted Judge Duncan, jeered him, called him a racist, and subjected him to crude sexual slurs. . . . The idea that these future lawyers would find it acceptable to harass and insult a sitting judge boggles the mind, and seriously calls into question whether these students have the proper respect for the role of a judge, or the temperament to practice law.

It is entirely defensible to say that one shouldn’t be rude to a judge. But doesimpertinent behavior towards a judge generally disqualify one from the practice of law?

The states generally have broad leeway to set the standards for admission to practice and the rules of professional conduct for licensed attorneys. At the same time, attorneys do not trade in all of their First Amendment rights for a bar card. The state’s ability to regulate attorney speech extends only as far as its interest in ensuring competent representation and preserving the administration of justice.

Obviously, rude and insulting remarks leveled at a judge during the course of a judicial proceeding will properly result in sanctions and discipline. As the Supreme Court held, “in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed.” And the rules of professional conduct regulate some attorney speech carried out in the course of representing clients and appearing before the courts.

But attorney speech made outside the scope of professional duties is entitled to significantly more protection. Some believe that the students’ behavior directly relates to how they will perform their professional duties, arguing that law school is a professional setting, law students are learning to be professionals, and the speaker was a judge. I don’t think that argument holds up. In fact, the event seems analogous to those in which attorney speech has been held outside the boundaries of permissible regulation.

In 2020, the Pennsylvania bar adopted ABA Model Rule 8.4(g), which prohibited (among other things) “denigrating” or showing “hostility or aversion” to any member of a protected class within “the practice of law.” Included in “the practice of law” was any event at which CLE credit was offered. My former FIRE colleague Zach Greenberg filed a lawsuit alleging that the rule impermissibly regulated attorney speech, placing him at risk should someone be offended by one of his CLE presentations about the First Amendment. The U.S. District Court for the Eastern District of Pennsylvania held the rule unconstitutional. In doing so, the court repeatedly emphasized that attorney speech at CLE seminars, bar association meetings, etc. is so unrelated to the state’s interest in the administration of justice that it could not be subject to regulation. In my view, to argue that a FedSoc speaking event is more akin to the performance of professional duties than a CLE seminar strains credulity.

Commentary and criticism of judges (even when rude and uncivil) made outside the context of official proceedings is likewise given stronger First Amendment protection. Judges are public officials, and the preservation of unfettered debate about government affairs must be paramount.

Some states, drawing from Garrison v. Louisiana and New York Times v. Sullivan, have devised a rule that allows attorney discipline for making factual statements about judges knowing that they are false, or with reckless disregard for the truth. Thus, attorneys have been sanctioned for things like: alleging that a probate judge extorted money, accusing a judge of arranging for their unlawful arrest, and falsely claiming that a court improperly held an ex parte conference. The logic is sound: false factual allegations of specific misconduct by judges tangibly erode confidence in the justice system.

But where the interest is in the nebulous concept of the “dignity” of the judiciary, the First Amendment imposes a higher bar. Writing for the Court in Bridges v. California, Justice Black declared:

The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.

So when attorneys make opinion-based statements about a judge, courts have been significantly less willing to uphold disciplinary action. A handful of examples, the first two coming from Texas itself:

  • Setting aside the formal reprimand issued to an attorney who called a judge “a midget among giants,” the Texas Court of Appeals noted: “It is apparent from [Garrison v. Louisiana] that any bridle upon a free flow of information to the people concerning the performance and qualifications of public officials will have little chance of gaining constitutional approval.
  • In Polk v. State Bar of Texas, an attorney charged with a DUI called the judge presiding over his case “perverse.” The U.S. District Court for the Northern District of Texas enjoined the state bar from reprimanding him, noting that he was not speaking as an attorney of record, but as a citizen, and “[u]nder these circumstances the state has no more interest to punish Polk for his conduct as a private citizen than it does to punish a mechanic, business man or other nonlawyers for the same conduct.”
    • Notably, the Polk court also took a dim view of the idea that the need to protect the image of the profession overrides an attorney’s First Amendment rights: “While this ‘elitist’ conception may be applicable in non-First Amendment circumstances, the interest of the State in maintaining the public esteem of the legal profession does not rationally justify disciplinary action for speech which is protected and is outside the scope of an attorney’s professional and official conduct. Where the protections of the Constitution conflict with the efficiency of a system to ensure professional conduct, it is the Constitution that must prevail and the system that must be modified to conform.”
  • The Supreme Court of Oklahoma criticized an attorney for calling a federal judge “racist,” calling his comments “disrespectful” and “extremely bad form,” but nevertheless found them protected by the First Amendment and not subject to discipline by the bar.
  • New York’s highest court said simply that “isolated instances of disrespect for the law, Judges and courts expressed by vulgar and insulting words or other incivility, uttered, written, or committed outside the precincts of a court are not subject to professional discipline . . . Nor is the matter substantially altered if there is hyperbole expressed in the impoverished vocabulary of the street.”
  • Holding that statements of opinion and rhetorical hyperbole that impugn a judge are insulated from discipline by the First Amendment, the Ninth Circuit reversed the suspension of an attorney who called a judge “dishonest” and claimed he was “anti-Semitic” because he had sanctioned multiple Jewish lawyers.

It makes little sense to ding a candidate’s character and fitness for something that could not be grounds for disciplining an admitted attorney; if the First Amendment precludes professional discipline, surely it should preclude impediments to licensure.

The jeering and crude comments directed at Judge Duncan, conducted far outside the context of any official proceeding, seem the type of extramural opinion and hyperbolic insults that—while worthy of condemnation—have been held constitutionally protected even for members of the legal profession. Some of the invective may have been more extreme in its incivility than the facts in prior cases, but difference of degree rather than kind is usually immaterial for First Amendment purposes. Hateful speech. for example, does not become unprotected once it reaches a certain level of “hatefulness.” And of course, whether something is “uncivil” in the first place (and just how uncivil it is) is an entirely subjective matter.

Which brings me to the troubling idea of inquiring about “civility” in the character and fitness examination.

It is unclear exactly how the Texas bar plans to implement its newly-announced “incivility” inquiry (and this section should be read as separate from and broader than the Stanford incident). Texas can certainly demand that lawyers “treat counsel, opposing parties, the court, and members of the Court staff with courtesy and civility” while representing clients and appearing before the courts. But inquiring about “incivility” broadly, or demanding civility in all of one’s interactions, would be troubling.

Civility can be a virtue, but it is not always so. First Amendment jurisprudence is rife with acknowledgement that the upsetting, enraging, and indecorous speech is often the speech that makes a difference. Free speech, said the Supreme Court, “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Striking down a university’s “civility” speech code, U.S. Magistrate Judge Wayne Brazil explained:

For many people, what matters most about a particular instance of communication is whether it inspires emotions in the audience, i.e., whether it has the emotional power to move the audience to action or to a different level of interest in or commitment to an idea or cause. . . . [M]andating civility could deprive speakers of the tools they most need to connect emotionally with their audience, to move their audience to share their passion.

In certain limited forums, attorneys must be able to maintain composure and act with a sense of decorum and civility. That much is indisputable. But holding a candidate’s incivility in other forums as a mark against their fitness to practice law provides no benefit to the profession while undermining core principles of free speech.

If you think that’s a fair tradeoff for protecting the profession’s integrity and reputation, consider how it might ultimately play out.

Defending its prohibition of “denigration” and “expressing hostility or aversion” by attorneys, Pennsylvania argued that it had an interest in protecting the legal profession by preventing lawyers from “engaging in something ‘deplorable and beneath common decency.’” (Language that sounds remarkably similar to the present discourse). The court was not impressed:

[W]hile the Court admires the ideal of high standards of professionalism and benevolence which the Rule would have Pennsylvania lawyers aspire to, the state simply does not have the authority to police professionals in their daily lives to root out speech the state deems to be below “common decency.” That nebulous notion of decency, combined with the exceptional authority the state would have if allowed to monitor attorneys outside of judicial proceedings and representation of a client and determine whether they are “decent” enough causes this Court grave concern.

The concept of “civility” is at least as nebulous, implicating the same concerns that led the Supreme Court overturn a man’s conviction for wearing a jacket reading “Fuck the Draft” in a courtroom: “[O]ne man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.”

Virtually any speech that offends someone could be deemed as “uncivil.” That’s especially so if the speech levies harsh criticism, dismisses a deeply-held conviction, or argues against the rights of certain groups. That subjectivity makes “incivility” inquiries a convenient vehicle for rank viewpoint discrimination: speech one agrees with is naturally seen as reasoned disagreement, but the speech that attacks one’s deeply-held beliefs are easily cast as “incivility.”

Would a bar examiner be justified in negatively assessing a candidate’s “civility score” for participating in an anti-immigration rally or a campus “Affirmative action bake sale?” For generally saying “there are two immutable sexes” or “gays are disordered?” What about “Jews are going to hell” or the act of burning a Koran? All of these are considered deeply uncivil by many people.

Before you tell me that these are fanciful examples that obviously bear no relevance to fitness to practice law, remember that one of Pennsylvania’s justifications for implementing Rule 8.4(g) was to prevent discrimination against protected classes within the legal profession (which is prohibited under the rules of professional conduct).

If I am correct that a candidate’s character and fitness can’t be dinged for speech that an attorney could not be disciplined for, everyone is safe from such overreach—a candidate’s “uncivil” expression occurring outside the context of official proceedings or duties would be off the table, whether it involved saying mean things about a judge or expressing a controversial political view.

But suppose I am incorrect, and a student’s incivility is an appropriate data point regardless of whether it could form the basis for attorney discipline. That is, as some argue, the fact that a student engaged in such behavior raises a legitimate concern that they might do something similar in a context that would violate professional rules. In that case, there is no apparent reason that any of the above “uncivil” statements could not likewise be found to raise doubts about a candidate’s ability to practice law without discriminating. The admissibility of every candidate who has strayed from the safety of anodyne and uncontroversial speech is now at the mercy of the bar examiners’ own predilections.

As with all attempts to use vague and ostensibly viewpoint-neutral codewords to regulate speech: be careful what you wish for.

If you’re still with me, thanks for reading this far! I am sure that many who read this will disagree with my position—and I welcome thoughtful counterarguments.

I know that many are of the opinion that Stanford’s response should have been more forceful. But if you think the students overreacted to Judge Duncan’s presence, consider whether escalating this into a licensure issue isn’t similarly overwrought. And ask yourself whether you think these students are truly incapable of practicing law, or if you just don’t think that kind of person should be a member of the profession (there’s a difference).

The lust for retribution makes it easy to lose sight of the principles and ideals one set out to defend, and end up undermining them instead. And that’s nearly always the case when invoking state power to punish violations of free speech norms and principles. The juice may feel worth the squeeze at first, but eventually the Oompa Loompas will be rolling you to the juicing room as well.

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