Eugene Volokh: Will State Bar ‘Character and Fitness’ Reviews Be the Next Frontier for Speech Codes?

By on January 8, 2010

UCLA law professor, influential legal blogger, and FIRE friend Eugene Volokh calls our attention to the pernicious possibility of state bars adopting speech codes, a prospect to be discussed in a panel discussion hosted by the American Association of Law Schools during the organization’s ongoing Annual Meeting in New Orleans.

Here’s the description of the panel’s discussion, to be held tomorrow:

Saturday, Jan. 9, 8:30-10:15 am: The First Amendment Meets Cyber-Stalking Meets Character and Fitness

Cyber-stalking and cyber-harassment have made their way to the legal academy. Some scholars say that on-line attacks constitute protected free speech. Other scholars say that this conduct is tortious and raises serious equality and civil rights concerns since internet stalking is often directed at women and minorities. But what about the character and fitness requirements that law students sitting for the bar must satisfy? Do law students who engage in harassment, smearing, and other such conduct (on Facebook, blogs, "Above the Law," etc.) raise fitness and professionalism issues? Is there a problem with law students using websites to make outrageous gender- or race-specific comments (often about other students or faculty members)? (See http://lawvibe.com/the-autoadmit-scandal-xoxoth/ .) Is this conduct beyond question as free speech or does this conduct raise character and fitness issues that law schools must address? Does the fact that it is technologically difficult to identify all abusive posters impact the calculus?

(Point of reference for non-lawyers: State bars are the professional organizations that certify attorneys for practice in each state following graduation from law school, passing the bar exam, and, typically, passing a "character and fitness review.")

Professor Volokh points out that if implemented, the adoption of speech codes by state bars might serve to exclude prospective lawyers from admission to practice for engaging in expression deemed to be "on-line attacks" and "outrageous gender- or race-specific comments," to use the panel’s language—regardless of whether or not such expression is constitutionally protected. Volokh writes:

If the panel were just planned to discuss the possibility that schools and state bars consider criminal and constitutionally unprotected conduct by students—such as making threats—that might be one thing. But the reference to "outrageous gender- or race-specific comments" suggests that the proposals would likely go considerably further.

That reference also suggests that we aren’t even talking about a general civility code, equally applicable to all outrageously rude insults. There are many familiar problems with such general codes—but the "outrageous gender- or race-specific comments" focus suggests that this code is aimed at suppressing offensive viewpoints, and not just uncivil ways of expressing all viewpoints. The rationale for that can’t just be that rude law students make rude lawyers, who might browbeat witnesses, make life hard for litigants, opposing counsel, and judges, and so on. (That rationale would itself be insufficient to justify denying someone a license to practice law based on otherwise constitutionally protected speech, but I set that aside for now.) The rationale must be that people who "outrageous[ly]" express racist or sexist views are unfit to be lawyers, presumably because they’ll act on those views in the future.

As Volokh observes, once state bars begin to assess a lawyer’s viewpoints in determining his eligibility for the bar, they’ve careened down the slippery slope:

Once accepted, this rationale would be very hard to cabin. Obviously it would be hard to resist extending it to "outrageous sexual-orientation-specific comments," or comments that express "outrageous" views criticizing Islam. Equally obviously it would quickly apply to all speech, on websites or otherwise. And of course who would be the judge of when the expression of an opinion—whether about typical students, about students who have injected themselves into public debates, about law professors, or even about a race, sex, sexual orientation, or religion more broadly—becomes "outrageous"? Who decides what is legitimate criticism and what is "smearing"? Who decides what constitutes "harassment" (perhaps under the now-familiar but still extremely vague and broad "severe or pervasive enough to create a hostile, abusive, or offensive educational environment based on race, religion, sexual orientation, etc." standard)? Why, disciplinary committees in law schools staffed by law professors, plus perhaps disciplinary committees in state bars.

Volokh also highlights the inevitable chilling effect this would have on future lawyers:

I’m sure that most backers of these restrictions would stress that of course they’re not trying to shut down substantive debate, only incivility. But once viewpoint-based restrictions are accepted, once speech can be suppressed because it’s "outrageous" or "smearing," it’s pretty hard to have much confidence that substantive (but to some "outrageous") discussion of ideas will remain untouched; and even if actual punishments for such speech are rare, the risk of punishment may powerfully deter the substantive debate as well as the nonsubstantive smears (of which I agree there is plenty). That has certainly been the experience with "civility codes" at university campuses, and governmentally coerced restrictions on "harassment" in workplaces. It would be hard to avoid the same effect in attempts to exclude lawyers from the bar on the grounds that their speech bespeaks lack of "character and fitness."

Volokh’s blog entry makes a compelling argument against such a prospect. Instead of excerpting still more, I urge all Torch readers to check out his entry in full.