The ABA’s Garbled View of Free Speech
In 2011, Florida enacted the Firearm Owners’ Protection Act, which as Joseph Greenlee has written “protect[s] patients from unethical practices of licensed physicians,” who were intrusively asking patients whether they own a firearm, even when such ownership had nothing to do with the purpose of the patient’s treatment. In pertinent part, the Act states that medical professionals “should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home” unless they in “good faith believe that this information is relevant to the patient’s medical care or safety, or the safety of others.” Fla. Stat. § 790.338(2). Another provision prevents medical professionals from “discriminat[ing] against a patient based solely” on the patient’s ownership or possession of a firearm. Fla. Stat. § 790.338(5).
A federal district court held the law unconstitutional, but an Eleventh Circuit panel reversed, viewing the law as, among other things, a minimal burden on professional speech. On February 16, 2017, the Eleventh Circuit, sitting en banc, agreed with the district court and held that the Act’s content-based restrictions are unconstitutional, but disagreed with the district court as to the anti-discrimination provision, holding it constitutional.
In the Eleventh Circuit, the American Bar Association filed an amicus brief criticizing the Florida law for suppressing the “truthful and important speech” of physicians expressing “a disfavored viewpoint.” The ABA noted the vagueness of the “relevance” standard and objected to the limitation of First Amendment-protected free speech simply because it is professional speech.
The ABA may well be right about the speech of physicians, but it is seriously off the rails when it comes to the speech of lawyers. Its new Rule of Professional Conduct 8.4(g) 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.”
The scope of “conduct related to the practice of law” is extraordinarily broad. As Ron Rotunda has observed, it would limit the speech of members of the Thomas More Society who might believe in a traditional non-same-sex view of marriage. Likewise, it would put a lawyer who complained about those who cling to their guns or religion or antipathy to those who aren’t like them outside the context of a political campaign and in a speech to the ABA Convention. Alternatively, what if I wore a Gadsden Flag hat or a Redskins Super Bowl Championship T-shirt (from 1983, 1987, or 1992) while running a 5K at a Bar event?
The ABA should take Judge Bill Pryor’s concurring opinion, which was joined by Judge Hull, to heart and support free speech across the board, not just for medical professionals. As he observes, “No person is always in the majority, and our Constitution places out of reach of the tyranny of the majority the protections of the First Amendment. The promise of free speech is that even when one holds an unpopular point of view, the state cannot stifle it.”
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