California Restricts Free Speech

Authored by Kenin M. Spivak via RealClearPolitics,

California’s far-left Supreme Court has ordered restrictions on the speech and expressive conduct of California’s lawyers “at all times,” including during their unrelated business activities, political endeavors and personal lives.

Just before Christmas, the even more radical California State Bar imperiously advised the state’s 200,000 lawyers “Read it, declare it, mean it.” That ominous warning introduced the California Supreme Court’s Orwellian Rule 9.7 which requires every lawyer to attest that: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.” The license of any lawyer who fails or refuses to acquiesce will be invalidated, and any lawyer who violates the oath is subject to “appropriate fees and penalties” to be set by the Bar.

For a nanosecond, that’s an appealing concept. But, under the First Amendment, no instrumentality of government may condition an individual’s livelihood on complying with its view of “dignity” or “courtesy,” in their political or personal endeavors. Invalidating the licenses of non-compliant lawyers also violates procedural due process under the Fifth and 14th Amendments. Tying the oath to meaningless pap about a lawyer being an “officer of the court” exposes the premeditated overreach.

As a threshold problem, even in traditional usage, “strive,” “dignity” and “courtesy” are so vague that no lawyer could know what is required, violating substantive due process. Presumably, cross-dressing is now considered dignified and proper; but, what about blackface? Or using invective, mentioning a transgender person’s “deadname,” employing grammatically and biologically correct pronouns, opposing abortion on demand, wearing a MAGA hat or T-shirt, referring to the homeless as vagrants, rather than “unhoused,” or illegal aliens as invaders, rather than non-citizens? How about singing off-key?

These statements and symbols are protected by the First Amendment, and yet, aside from singing off-key, each has been used by the far left to suppress social media posts and articles, suspend and expel students, and fire employees on grounds that their traditional beliefs and expressive conduct are discourteous and undignified. In Europe, which has no First Amendment, criminal prosecutions for speech and symbols progressives find odious are rapidly increasing. Britain made more than 12,000 arrests last year, more than 30 each day, for offensive online posts.

At last year’s Munich Security Conference, Vice President JD Vance called out elites in Europe for threatening to shut down social media to combat “hateful content,” and German police for raiding “citizens suspected of posting anti-feminist comments.” The Europeans retorted that they are preserving courtesy and dignity, and then most uncourteously fined X $140 million for failing to comply.

Despite the First Amendment, the Biden administration weaponized its opposition to free discourse with a whole-of-government enterprise that censored, demonetized and deplatformed conservatives, prosecuted pro-life activists, and investigated parents who opposed DEI and kowtowing to transgender militants.

It has taken considerable litigation to protect students, faculty, and other employees targeted by state and local governments for their so-called “offensive” speech and symbols, including prayer, refusal to call biological men “she,” and wearing pro-choice, pro-faith, and MAGA hats and T-shirts.

Merely regulating tone, comportment, and politeness violates the Constitution. But the threat implied by Rule 9.7 is more perniciously intended to chill free speech, and there is every reason to expect that the California Supreme Court and Bar will use Rule 9.7 to destroy the livelihoods of conservative and America First lawyers who run afoul of the left’s ever-expanding canon of dos and don’ts. Invalidating a law license can cascade into loss of other licenses, financing, and business and social opportunities.

Just last year, the California Bar proclaimed that “attorneys have an ethical duty to provide competent and diligent representation to clients, regardless of how unpopular or controversial their causes may be,” yet it concurrently suspended, and demanded the disbarment of Claremont Institute constitutional attorney John Eastman for giving legal advice to President Trump in the run-up to Jan. 6, 2021. Bar prosecutors characterized his willingness to advise Trump on his alternatives as “moral turpitude.”

The California Bar zealously promotes DEI, which unconstitutionally allocates opportunities by race and gender orientation. DEI’s advocates duplicitously label their opponents as racists, effectively a claim of undignified and discourteous conduct, two grounds for disciplinary action.

The United States Supreme Court has clearly explained that the First Amendment prohibits government from restricting speech, symbols or expressive conduct because of the message, ideas, subject matter, or content. There are no exceptions for hate speech, courtesy, dignity, or court officers.

The California Supreme Court and State Bar know this. They are counting on their power over the state’s lawyers to coerce compliance. Supporters of free speech must not let that happen.

Kenin M. Spivak is founder and chairman of SMI Group LLC, an international consulting firm and investment bank. He is the author of fiction and non-fiction books and a frequent speaker and contributor to media, including RealClearPolitics, The American Mind, National Review, television, radio, and podcasts.