Thursday, August 11, 2016

The ABA wants to suppress my exposition of Catholic philosophical and moral teachings. It's simple: define everything that the urban secular elites don't like as "bias" and define all bias against ideas that the urban secular elites don't like as not bias,and - Hey, Presto! - you have a world of thoughtcrime. //The American Bar Association has adopted a new provision in its Model Rules of Professional Conduct — an influential document that many states have adopted as binding on lawyers in their state. I blogged about it when it was just proposed, in slightly different form, but I thought it was worth repeating my analysis now that the ABA is formally recommending it to state bars and state courts. Here is the relevant text (emphasis added): It is professional misconduct for a lawyer to . . . engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these rules. Discrimination and harassment . . . includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g). Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing [diverse] employees or sponsoring diverse law student organizations. So 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 said something that was critical of gays, Muslims or transgender people. If the rule is adopted, 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” — Continuing Legal Education events are certainly connected with the practice of law. (The event could be labeled 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 about a group generally, even when they aren’t said to or about a particular offended person, 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 didn’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.// We are a long, long way from the understanding of freedom of speech that existed when I was in law school.

5 comments:

Robert said...

Its somewhat counter-intuitive that this blog post you reference and quote was published by the Washington Post, a recognized bastion of liberal thought and causes. Perhaps there are limits to everyones political preferences after all.

Another thought, you reference "urban secular elites" as being behind this. Most of the "urban elites" i know and know of profess to be christian, not secular, yet they have different views on some of the issues your "exposition of Catholic philosophical and moral teachings" addresses. Does that really make them secular, or do they just disagree with your views on the application of christian and moral teachings? That has nothing to do with the 1st amendment issues you raise. Just wondering why anyone who disagrees with you on moral and religious issues has to be "secular."

Peter Bradley said...

Its somewhat counter-intuitive that this blog post you reference and quote was published by the Washington Post, a recognized bastion of liberal thought and causes. Perhaps there are limits to everyones political preferences after all.//

You probably noticed - if you read the article - that it was written by Eugene Volokh under the "Volokh Conspiracy" heading. Volokh and the other writers that are part of the "conspiracy" are libertarian.

So, the Washington Post does have token representation that are not part of the secular, urban, liberal elite worldview. However, the fact that there is a conservative column and a libertarian column does not disprove the fact that the other 99.9% of the paper is written from a perspective hostile to freedom of conscience of people they disagree with.

But, also, so what?

The issue is not the WP but the ABA.

Certainly, the ABA and the WP represent the same mindset, which you know because you confused the two.

//Another thought, you reference "urban secular elites" as being behind this. Most of the "urban elites" i know and know of profess to be christian, not secular, yet they have different views on some of the issues your "exposition of Catholic philosophical and moral teachings" addresses. //

Obviously, we can't know what professors you cherry-pick, but we saw the DNC boo an effort to include a reference to God in a plank in 2012 and we are long past the time where any credible claim can be made that progressive left is not hostile to religion and accommodation of religion.

//Does that really make them secular, or do they just disagree with your views on the application of christian and moral teachings? That has nothing to do with the 1st amendment issues you raise. Just wondering why anyone who disagrees with you on moral and religious issues has to be "secular."//

Because they are secular.

You can tell because they speak in terms of a hard separation of church and state and of keeping religion out of the public square tout court.

If you want to provide evidence that leftists, including progressives and liberals, are in favor of permitting religious language and discourse into public discussions or public activities, then provide the evidence.

Otherwise you are pettifogging something that you know to true.

Robert said...

"If you want to provide evidence that leftists, including progressives and liberals, are in favor of permitting religious language and discourse into public discussions or public activities, then provide the evidence."

The notion that the religious (as opposed to the secular) cannot work at the ABA and support this new policy is faulty. The notion that everyone who supports this new policy is secular is equally faulty. The notion that "leftists, including progressives and liberals" are all secular is not just faulty, its absurd.

I'm not supporting this new policy as I don't really care all that much within reason what you attorneys do to each other. I'm objecting to the logic and implications behind your use of the word (and idea) "secular."

With regards to this request for me to provide such proof, its all around you. There are extremely limited restrictions on my personal ability to use "religious language and discourse in(to) public discussions or public activities." In fact, except for certain issues and actions related to employment (which all seem reasonable to me), I can't think of any such restrictions unless I'm a member of the ABA, apparently.

Peter Bradley said...

Robert, here is what I said:

"If you want to provide evidence that leftists, including progressives and liberals, are in favor of permitting religious language and discourse into public discussions or public activities, then provide the evidence."

And here is what you said:

"With regards to this request for me to provide such proof, its all around you. There are extremely limited restrictions on my personal ability to use "religious language and discourse in(to) public discussions or public activities." In fact, except for certain issues and actions related to employment (which all seem reasonable to me), I can't think of any such restrictions unless I'm a member of the ABA, apparently."

I note that you didn't actually address my point; you simply assumed your position to be true.

However, my point remains that secular leftists are defining religious positions as "hate" and "hate speech" and are using the fascist implication of hate speech regulation to stifle speech they don't like.

I gave your the example of the ABA - which you simply treat as irrelevant - but we can also point to employment - which you think is fine - and there are the lawsuits against people who don't want to support gay weddings - which I assume you think is fine - and the attacks on Catholics and Mormons who donated to the pro-8 political campaigns - which I suspect that you think is fine - and Brandon Eich was terminated for supporting pro-8 based on religion - again, I suspect that you think that is fine - and then there was the splenetic attack on Chick-Fill-A - which...well, ditto - and, of course, references to God as graduation.

But - hey! - asides from all the examples that you happen to agree with, there really are no examples that support my position.

But thanks for not providing me with any evidence to support your position.

That was edifying.

Peter Bradley said...

Oh...and I forgot to re-mention the part about Democrats booing a plank recognizing God in 2012.

But really, aside from that, what have the Romans ever done for us.

You can start with your assumptions, ignore the evidence that your rule as immaterial, and remain content that your position is obviously correct....obviously.

 
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