Thursday, February 23, 2017

First Amendment Implications of Bar Charges Against Kellyanne Conway

The Washington Post reports that several law professors have filed an ethics complaint with the DC Bar, charging Trump “spinmaster” Kellyanne Conway with breach of her ethical responsibilities as a member of the DC Bar by spouting various lies.  The specific disciplinary rule at issue:  Rule 8.4(c), which forbids “conduct involving dishonesty, fraud, deceit, or misrepresentation.”  The letter cites three examples of lies (Conway’s mindless references to the “Bowling Green massacre,” her falsely portraying a policy of Barack Obama toward Iraqi refugeees, and her use of the term “alternate facts”) and one example that has nothing to do with lies – her violation of a federal statute by using her public position to endorse some of Ivanka Trump’s products and urge consumers to buy them.  (Public Citizen has rightly criticized that ethical misconduct, and after the Office of Government Ethics called out that violation, it called for her to be disciplined by the federal government.  That seems right to me. But the bar charge admits that this example has nothing to do with Rule 8.4 – was it added just to make the charge of lying seem more weighty?)

My view is that bar charges like this one are a threat to the First Amendment, that bar grievance officials, as public officials working in the judicial branch, are an organ of the government and hence are constrained by the First Amendment, and that they should not conduct proceedings that risk chilling free speech rights.  Consequently, the DC Bar should promptly dismiss the charges.

The Right Remedy for Lying 

In making these points, I do not in the least excuse either Kellyanne Conway or, indeed, her boss, for using intentional falsehoods to promote their public policy goals.  The ready use of deliberate lies to promote a candidate’s election or to further public policy goals cheapens public discourse and, indeed, threatens our democracy. I join many of my more old-fashioned friends in worrying that Donald Trump’s willingness to lie about simple facts to arouse his supporters, and Conway’s similar lies not to speak of excusing those lies, are reminiscent of the tactics that Hitler and propagandists like Goebbels, or Stalin and propagandists like Bukharin, used to rally their supporters and crush opposition. My worry is that our democracy might not survive the Trump presidency.

But in our society, the remedy for false political speech is more speech, not a government proceeding to determine the truth and punish those found to have lied.  The Supreme Court held in Gentile v. State Bar of Nevada that although lawyers speech may be restricted when it poses a serious threat of material prejudice to judicial proceedings in which they play a special role, lawyers, even lawyers like Kellyanne Conway, do not surrender their First Amendment rights by becoming members of the bar.  Gentile said, “[D]isciplinary rules governing the legal profession cannot punish activity protected by the First Amendment.” Nor do lawyers lose their First Amendment rights by becoming public officials.  Deliberately false statements that injure the reputation of public figures can be actionable as defamation, but the Supreme Court has shown its reluctance, in such cases as United States v. Alvarez where it struck down the Stolen Valor Act, to expand number of categories of speech that is unprotected by the First Amendment.  Alvarez tells us that the mere fact that speech is false, even knowingly false, is not alone enough to take it out of the protection of the First Amendment.  

Ways in Which the Charges Are Overstated

I might add that some of the things on which the bar charges were based do not even constitute false statements.  The complaint includes the fact that Conway used the term “alternative facts”; the bar charge on this specification is predicated on the riposte that “alternative facts” are lies.  I certainly agree that the “alternative facts” excuse for lying to the public is detestable, even laughable (“no, when I said I did not chop down the cherry tree that was not a lie, just an alternative fact”).  But using the term “alternative facts” does not itself constitute a false statement of fact  – at most it is an implicit expression of opinion that lying by the president is acceptable.  Or, maybe it is an expression of relativism (because there are two versions of reality, and the real truth is not knowable?). May a lawyer be disciplined for expressing that opinion? Sissela Bok wrote a whole book about why lying is bad but also when lying can be excusable (it is my current re-reading project).  Generally speaking, opinions are not actionable under defamation law or otherwise.  “Under the First Amendment, there is no such thing as a false idea.”

Another of the facts that Conway is charged with misstating is her false characterization of one of  Barack Obama’s actions in office – that he “banned” Iraqi refugees after the Bowling Green incident (the arrest and prosecution of two Iraqis).  So these law professors propose that making false statements about the former president of the United States is the sort of mischaracterization that can subject a lawyer to professional discipline?  My sense is that Barack Obama has plenty of access to lawyers if he wants to sue for defamation based on mischaracterizations of his acts in office  – and of course he has ample access to the media to counteract such criticism.  Bar officials have no business setting up a Star Chamber to hold lawyers accountable for such criticisms.

The Dangerous Ramifications of The Bar Charge   

Last year, I wrote on the Consumer Law and Policy blog about bar charges brought by Dr. Rosalind Griffin, a Michigan psychiatrist but also an official of Michigan’s public grievance commission, against Stephen Gursten, a Detroit-area lawyer whose specialty is representing accident victims. Gursten had blogged about her pattern of providing expert testimony that consistently denigrated injury claims by his clients, and claimed that her testimony about his clients was false.  My contention that was that if Dr. Griffin had a defamation claim, she should sue Gursten, but that it was an abuse of bar grievance procedures to force Gursten to defend his blogging to grievance officials.  I urged Michigan bar counsel to dismiss the charges out of hand, without requiring Gursten to submit a response, because just having to respond to administrative proceedings about protected speech has a tendency to chill such speech.  I'd like to think that shining a public light on the bar proceedings helped hasten the dismissal of Dr. Griffin's bar charge.  I have the same hope for the charge against Kellyanne Conway, however much I may detest the substance of what she has to say.

Finally, although I have some sympathy with the desire of these law professors to strike back at Conway’s misbehavior in public life, I tend to think that their use of bar charges to do so is extremely short-sighted.  Maybe these professors think they can count on the DC Bar to go after only conservative politicians who lie for political gain, but even assuming that this estimate is right, they might give some mind to the precedent they are setting for progressive lawyers who work (or hold office) in hostile political environments.  Think, for example, about a lawyer in Utah who utters a statement about the Church of Latter Day Saints that some of its adherents consider to be a slander of their church.  May such a lawyer be hauled before a Bar disciplinary panel and made to account for his criticisms?  What about progressive lawyers in bright red states like Alabama or South Carolina who criticize Republican officials or local business interests – may they be made to explain their criticisms and held liable if a kangaroo court of conservative bar officials finds their statements to have been false, or if a highly politicized Supreme Court, elected with campaign funds supplied by the Koch brothers, affirms such discipline?  Under the Rooker-Feldman doctrine, there is generally speaking no resort to the federal courts to overturn such bar proceedings; the factual findings about the lawyers’ alleged falsity would be subject to de novo review outside the state judicial system only if the Supreme Court of the United States chooses to grant review.  Indeed, could a federal agency forbid a lawyer to appear in an agency proceeding, for example, an immigration hearing, on the ground that she supposedly lied about a Trump Administration official or executive order?  This is a very bad idea.

And that is not an idle concern: a few years ago I represented some Alabama lawyers who were subjected to a gag order, predicated on bar disciplinary rules, because they were accused of criticizing a local business unfairly; the trial judge ruled against them but the happily Alabama Supreme Court reversed and remanded for further proceedings  (albeit ducking the First Amendment issues).  

In their haste to find hammers to use against Trump administration officials, these law professors risk setting a bad precedent.

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