2016 National Lawyers Convention
“Those who won our independence," Justice Brandeis wrote nearly a century ago, “eschewed silence coerced by law – the argument of force in its worst form." They believed that “the fitting remedy for evil counsels is good ones." Holding that belief, the Founding Generation added an amendment to the Constitution that expressly protects the freedom of speech. Today, however, public officials and private citizens facing what they believe to be “evil counsels" have sometimes responded not by offering good counsel but by invoking judicial processes. They use “the argument of force in its worst form" to silence opinions and speech that they disapprove of.
Recent examples of this phenomenon include District Attorneys in Texas and Wisconsin who investigated and charged a sitting Governor, the whistleblower who exposed the practices of Planned Parenthood, and those whose political views diverged from those of the District Attorney. In two of those cases, investigators broke into homes and seized computers and documents. Significantly, in each case, the charges were dropped, although not without great angst and effort from the targeted.
Mark Steyn has asserted that the process is, itself, the punishment. Steyn has been sued by a Penn State climatologist who famously claims that he was defamed when his writings were subjected to ridicule. Four years after the suit was filed, it is still in its preliminary stages.
Most recently, a coterie of Attorneys General, aided by some senators, have declared their intention to stifle dissent on the subject of climate change. The Attorneys General of Massachusetts and the Virgin Islands sent subpoenas for documents to Exxon and a number of think tanks grounding their action on the contention that the dissenters are guilty of fraud.
Are these actions appropriate uses of the judicial process?
What, if anything, can be done to curtail the use of judicial processes to target speech? Are measures like Anti-SLAPP (Strategic Lawsuits against Public Participation) laws an appropriate response? Are they constitutional? What about a federal anti-SLAPP law?
It is noteworthy that the worst abuses have taken place in state courts. Should Congress allow removal to federal court when a defendant makes a plausible case that the relief sought would violate rights under the First Amendment?
Professional Responsibility & Legal Education: Using Judicial Processes for Political Purposes
11:00 a.m. – 12:30 p.m.
- Prof. Arthur Hellman, Professor of Law, Sally Ann Semenko Endowed Chair, University of Pittsburgh School Law
- Hon. Patrick Morrisey, Attorney General, West Virginia
- Prof. Patrick A. Parenteau, Senior Counsel, Professor of Law, Vermont Law School
- Ms. Kimberley A. Strassel, Wall Street Journal Editorial Board Member, Author of The Intimidation Game: How the Left is Silencing Free Speech
- Moderator: Hon. Steven M. Colloton, U.S. Court of Appeals, Eighth Circuit
- Introduction: Mr. Jack Park, Jr., Of Counsel, Strickland Brockington Lewis LLP
The Mayflower Hotel Professional Responsibility & Legal Education Practice Group Podcast
Our panel of three experts in legal and judicial ethics discussed several recent cases and regulatory developments in the field, with an eye to translating these developments into practical wisdom about their likely impact on law practice in 2016 and beyond.
Topics included the American Bar Association's move to expand the scope of the regulation of race, gender and other harassment and discrimination into the practice of law generally, including law firm management; amendments to the rules of discovery to help reduce the gamesmanship now often infecting the process; the extent to which the Supreme Court's decision in the North Carolina Dentists case may foreshadow limitations on the ability of states to regulate the practice of law without running afoul of the antitrust laws; whether competent legal advice must include a business advice component in certain settings; and how the use of social media to complain about a sitting judge can cross the line into unethical conduct.
Litigation Practice Group Podcast
- Prof. W. William Hodes,Professor Emeritus of Law, Indiana University & President, The William Hodes Professional Corporation
- Prof. Thomas D. Morgan, Oppenheim Professor Emeritus of Antitrust and Trade Regulation Law, George Washington University Law School
- Prof. Ronald Rotunda, Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University Dale E. Fowler School of Law
On June 10, U.S. Sens. Ted Cruz, John Cornyn, Orrin Hatch, James Lankford, and Mike Lee introduced the Stop Settlements Slush Fund Act. The Act would prohibit the Department of Justice from enforcing settlements that allow parties to give money to outside parties chosen by the administration instead of the Treasury. Many of these outside parties have been non-profits that Congress had recently removed from federal funding.
Professional Responsibility & Legal Education Practice Group Podcast
- Paul J. Larkin Jr., Senior Legal Research Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
- Prof. David Min, Assistant Professor of Law, University of California, Irvine School of Law
On June 9, the Supreme Court issued its decision on Williams v. Pennsylvania, a case which confronted whether or not a state supreme court justice had violated the Due Process Clause when he refused to recuse himself from a capital punishment case. The justice made the initial decision to seek the death penalty and had also defended the decision on appeal while in his office as prosecutor before his appointment to the bench. The Court ruled in favor of the plaintiff, asserting that the refusal to recuse was a violation of the Due Process Clause of the 14th Amendment.
- John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP