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More on the ABA’s Threat to Free Speech

John J. Park, Jr. June 19, 2017
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In my post of May 9, 2017 regarding the ABA’s new Model Rule 8.4(g), I noted the breadth of the new rule. It would make it professional misconduct for a lawyer to, among other things, “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.” Proposed new Comment 4 illustrates the broad reach of the new rule. It explains that the range of activities related to the practice of law includes, but is not limited to, “participating in bar association, business or social activities undertaken in connection with the practice of law.”

For that reason, if someone objected to my wearing of a Gadsden Flag hat or a Washington Redskins T-shirt at a Bar event, I might be called on to explain to the Bar why that clothing was not racist or otherwise within the scope of the rule. After all, in the last administration, the EEOC remanded a claim that the wearing of a Gadsden Flag hat in a workplace was potentially racial harassment. And, the Patent and Trademark Office tried to cancel the Redskins trademark because it was said to be disparaging of Native Americans.

Now there’s another entrant in the hypothetical sweepstakes. A student at Bethel University in St, Paul, MN, apologized to a Native American professor for wearing an allegedly offensive Chicago Blackhawks sweatshirt. No doubt the Native American professor was also a fan of the Minnesota Wild. After all, the Blackhawks finished ahead of the Wild in the Western Conference, although the eventual champions were the innocuously named Pittsburgh Penguins.

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