[Say] that some lawyers put on a Continuing Legal Education event that included a debate on same-sex marriage, or on whether there should be limits on immigration from Muslim countries, or on whether people should be allowed to use the bathrooms that correspond to their gender identity rather than their biological sex. In the process, unsurprisingly, the debater on one side says something critical of gays, Muslims or transgender people. Under the Rule, the debater could well be disciplined by the state bar:1. He has engaged in “verbal … conduct” that “manifests bias or prejudice” toward gays, Muslims, or transgender people.2. Some people view such statements as “harmful”; those people may well include bar authorities.3. This was done in an activity “in connection with the practice of law,” a Continuing Legal Education event. (The event could also be a bar activity, if it’s organized through a local bar association, or a business activity.)4. The statement isn’t about one person in particular (though it could be — say the debater says something critical about a specific political activist or religious figure based on that person’s sexual orientation, religion or gender identity). But “anti-harassment … case law” has read “harassment” as potentially covering statements that are offensive to a group generally, even when they aren’t said to or about a particular offended person. See, e.g., Sherman K. v. Brennan, EEOC DOC 0120142089, 2016 WL 3662608 (EEOC) (coworkers’ wearing Confederate flag T-shirts on occasion constituted racial harassment); Shelton D. v. Brennan, EEOC DOC 0520140441, 2016 WL 3361228 (EEOC) (remanding for factfinding on whether coworker’s repeatedly wearing cap with “Don’t Tread On Me” flag constituted racial harassment); Doe v. City of New York, 583 F. Supp. 2d 444 (S.D.N.Y. 2008) (concluding that e-mails condemning Muslims and Arabs as supporters of terrorism constituted religious and racial harassment); Pakizegi v. First Nat’l Bank, 831 F. Supp. 901, 908 (D. Mass. 1993) (describing an employee’s posting a photograph of the Ayatollah Khomeni and another “of an American flag burning in Iran” in his own cubicle as potentially “national-origin harassment” of coworkers who see the photographs). And the rule is broad enough to cover statements about “others” as groups and not just as individuals.Indeed, one of the comments to the rule originally read “Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct towards a person who is, or is perceived to be, a member of one of the groups.” But the italicized text was deleted, further reaffirming that the statement doesn’t have to be focused on any particular person.Or say that you’re at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about such matters — Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint.Again, you’ve engaged in “verbal … conduct” that the bar may see as “manifest[ing] bias or prejudice” and thus as “harmful.” This was at a “social activit[y] in connection with the practice of law.” The State Bar, if it adopts the Rule, might thus discipline you for your “harassment.” And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action.This goes well beyond Texas Disciplinary Rule of Professional Conduct 5.08, which bans manifesting bias or prejudice only “in connection with an adjudicatory proceeding,” and the rules in other states, which bar discrimination and harassment when they are “prejudicial to the administration of justice.” See, e.g., Ariz. Rules of Prof. Conduct 8.4 Comment. Courts and the bar can legitimately protect the administration of justice from interference, even by, for instance, restricting the speech of lawyers in the courtroom or in depositions. But the ABA proposal deliberately goes vastly beyond such narrow restrictions, to apply even to “social activities.”The ABA proposal also goes beyond existing hostile-work-environment harassment law under Title VII and similar state statutes. That law itself poses potential First Amendment problems if applied too broadly. See, e.g., DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591 (5th Cir. 1995) (“Where pure expression is involved, Title VII steers into the territory of the First Amendment.”) (dictum); Rodriguez v. Maricopa County Comm. Coll. Dist., 605 F.3d 703 (9th Cir. 2010) (“There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.”) (quoting Saxe v. State Coll. Area School Dist., 240 F.3d 200, 204 (3d Cir 2001) (Alito, J.)). But in most states, harassment law doesn’t include sexual orientation, gender identity, marital status, or socioeconomic status. It also generally doesn’t cover social activities at which coworkers aren’t present — but under the proposed rule, even a solo practitioner could face discipline because something that he said at a law-related function offended someone employed by some other law firm.Hostile-work-environment harassment law is also often defended (though in my view that defense is inadequate) on the grounds that it’s limited to speech that is so “severe or pervasive” that it creates an “offensive work environment.” This proposed rule conspicuously omits any such limitation. Though the provision that “anti-harassment … case law may guide application of paragraph (g)” might be seen as implicitly incorporating a “severe or pervasive” requirement, that’s not at all clear: That provision says only that the anti-harassment case law “may guide” the interpretation of the rule, and in any event the language of paragraph (g) seems to cover any “harmful verbal … conduct,” including isolated statements.Many people pointed out possible problems with this proposed rule — yet the ABA adopted it with only minor changes that do nothing to limit the rule’s effect on speech. My inference is that the ABA wants to do exactly what the text calls for: limit lawyers’ expression of viewpoints that it disapproves of. I hope that Texas, consistently with the First Amendment, rejects such a restriction on constitutionally protected speech.
December 20, 2016 at 5:37 PM EST