Wednesday 12/21/16

  1. Annunciation
  2. O Morningstar
  3. Let’s get small!
  4. The unethical ABA
  5. Modern foot-binding


First Things

1

Salvation to all that will is nigh;
That All, which always is All everywhere,
Which cannot sin, and yet all sins must bear,
Which cannot die, yet cannot choose but die,
Lo! faithful Virgin, yields himself to lie
In prison, in thy womb; and though he there
Can take no sin, nor thou give, yet he’ll wear,
Taken from thence, flesh, which death’s force may try.
Ere by the spheres time was created, thou
Wast in his mind, who is thy Son, and Brother,
Whom thou conceiv’st, conceiv’d; yea thou art now
Thy maker’s maker, and thy Father’s mother,
Thou hast light in dark; and shutst in little room,
Immensity cloistered in thy dear womb.

(John Donne, Annunciation)

Note well: Christ took his flesh, his incarnation, from the Virgin, her maker’s maker, her Father’s mother. If you can’t stand paradox, you’d better look for another religion than Christianity.

2

O Dayspring,
splendour of light eternal and sun of righteousness:
Come and enlighten those who dwell in darkness and the shadow of death.

(Malcolm Guite’s translation of the O Antiphon for December 21) Guite has also written a gorgeous Sonnet for each of the O Antiphons. You can find his Sonnet for O Dayspring, and a musical setting by Jac Redford, at Guite’s blog.

Thanks to Mars Hill Audio Journal for giving me my introduction to Guite.

3

Children today are raised with dreams of greatness. Cultural affirmations of our limitless potential, well-intentioned, have not produced a generation of over-achievers, but have indeed brought forth hordes of great dreams. This is nothing new in American culture. We are the world’s longest sustained pep-talk …

We sing the songs of progress in the gospel of an ever-improving world …

“Progress,” as a word with its present meaning, only goes back to the 19th century. It describes a sort of eschatology, the Christian doctrine of the end of all things … The 19th century notion … was that the Kingdom was something given to humanity to build …

This initially Christian belief has long since shed its outward religious trappings and assumed the shape of modern secularism. However, we should not underestimate the religious nature of modernity. No religion has ever felt more certain of its correctness nor its applicability for all people everywhere and at all times than the adherents and practitioners of modern progress ….

(Fr. Stephen Freeman, I’ll Be Small for Christmas — emphasis added)

Secondary Things

4

The Attorney General of Texas weighs in on American Bar Association Model Rule 8.4(g):

A court would likely conclude that Model Rule 8.4(g) infringes upon the free speech rights of members of the State Bar.

… Model Rule 8.4(g) would severely restrict attorneys’ ability to engage in meaningful debate on a range of important social and political issues.

While decisions of the United States Supreme Court have concluded that an attorney’s free speech rights are circumscribed to some degree in the courtroom during a judicial proceeding and outside the courtroom when speaking about a pending case, Model Rule 8.4(g) extends far beyond the context of a judicial proceeding to restrict speech or conduct in any instance when it is “related to the practice of law” [including, among other things,] … [“]participating in bar association, business or social activities in connection with the practice of law.[“] Given the broad nature of this rule, a court could apply it to an attorney’s participation in a continuing legal education panel discussion, authoring a law review article, or informal conversations at a bar association event.

One commentator [Prof. Ron Rotunda] has suggested, for example, that at a bar meeting dealing with proposals to curb police excessiveness, a lawyer’s statement, “Blue lives [i.e., police] matter, and we should be more concerned about black-on-black crime,” could be subject to discipline under Model Rule 8.4(g). In the same way, candid dialogues about illegal immigration, same-sex marriage, or restrictions on bathroom usage will likely involve discussions about national origin, sexual orientation, and gender identity. Model Rule 8.4(g) would subject many participants in such dialogue to discipline, and it will therefore suppress thoughtful and complete exchanges about these complex issues….

The A.G. finds other constitutional infirmities in the Model Rule, too.

Eugene Volokh responds:

I’m very glad to see this, and I particularly agree with the free speech conclusion. Here’s an excerpt from a comment that I submitted to the Texas AG’s office during the public comments period, which discusses the free speech issue in more detail:

[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 says something critical of gays, Muslims or transgender people. Under the Rule, 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,” a Continuing Legal Education event. (The event could also be 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 that are offensive to a group generally, even when they aren’t said to or about a particular offended person. See, e.g., Sherman K. v. Brennan, EEOC DOC 0120142089, 2016 WL 3662608 (EEOC) (coworkers’ wearing Confederate flag T-shirts on occasion constituted racial harassment); Shelton D. v. Brennan, EEOC DOC 0520140441, 2016 WL 3361228 (EEOC) (remanding for factfinding on whether coworker’s repeatedly wearing cap with “Don’t Tread On Me” flag constituted racial harassment); Doe v. City of New York, 583 F. Supp. 2d 444 (S.D.N.Y. 2008) (concluding that e-mails condemning Muslims and Arabs as supporters of terrorism constituted religious and racial harassment); Pakizegi v. First Nat’l Bank, 831 F. Supp. 901, 908 (D. Mass. 1993) (describing an employee’s posting a photograph of the Ayatollah Khomeni and another “of an American flag burning in Iran” in his own cubicle as potentially “national-origin harassment” of coworkers who see the photographs). 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 doesn’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.

Again, you’ve engaged in “verbal … conduct” that the bar may see as “manifest[ing] bias or prejudice” and thus as “harmful.” This was at a “social activit[y] in connection with the practice of law.” The State Bar, if it adopts the Rule, might thus discipline you for your “harassment.” And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action.

This goes well beyond Texas Disciplinary Rule of Professional Conduct 5.08, which bans manifesting bias or prejudice only “in connection with an adjudicatory proceeding,” and the rules in other states, which bar discrimination and harassment when they are “prejudicial to the administration of justice.” See, e.g., Ariz. Rules of Prof. Conduct 8.4 Comment. Courts and the bar can legitimately protect the administration of justice from interference, even by, for instance, restricting the speech of lawyers in the courtroom or in depositions. But the ABA proposal deliberately goes vastly beyond such narrow restrictions, to apply even to “social activities.”

The ABA proposal also goes beyond existing hostile-work-environment harassment law under Title VII and similar state statutes. That law itself poses potential First Amendment problems if applied too broadly. See, e.g., DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591 (5th Cir. 1995) (“Where pure expression is involved, Title VII steers into the territory of the First Amendment.”) (dictum); Rodriguez v. Maricopa County Comm. Coll. Dist., 605 F.3d 703 (9th Cir. 2010) (“There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.”) (quoting Saxe v. State Coll. Area School Dist., 240 F.3d 200, 204 (3d Cir 2001) (Alito, J.)). But in most states, harassment law doesn’t include sexual orientation, gender identity, marital status, or socioeconomic status. It also generally doesn’t cover social activities at which coworkers aren’t present — but under the proposed rule, even a solo practitioner could face discipline because something that he said at a law-related function offended someone employed by some other law firm.

Hostile-work-environment harassment law is also often defended (though in my view that defense is inadequate) on the grounds that it’s limited to speech that is so “severe or pervasive” that it creates an “offensive work environment.” This proposed rule conspicuously omits any such limitation. Though the provision that “anti-harassment … case law may guide application of paragraph (g)” might be seen as implicitly incorporating a “severe or pervasive” requirement, that’s not at all clear: That provision says only that the anti-harassment case law “may guide” the interpretation of the rule, and in any event the language of paragraph (g) seems to cover any “harmful verbal … conduct,” including isolated statements.

Many people pointed out possible problems with this proposed rule — yet the ABA adopted it with only minor changes that do nothing to limit the rule’s effect on speech. My inference is that the ABA wants to do exactly what the text calls for: limit lawyers’ expression of viewpoints that it disapproves of. I hope that Texas, consistently with the First Amendment, rejects such a restriction on constitutionally protected speech.

Popehat also has some salient comments, albeit from a superficially different context:

A government lawyer in Florida would like courts to impose community service and forced speech on you if you’re unpleasant, and a prominent Florida newspaper is taking it seriously. Wait. Taking it “seriously.” No. “Taking it seriously.” Shit. “Writing about it without open ridicule.” There.

The government lawyer is one Mikki Canton, “chief strategic adviser and global affairs counsel” to Miami Mayor Tomás Regalado and manager of a government program that encourages foreign investment through immigration. Apparently recent incidents like a rude (and crazy) Trump-voting Starbucks customer inspired Ms. Canton to suggest that the government punish rude speech:

Besides mentioning that basic civility guidelines could be drawn up, Canton also spoke of establishing “civility courts” that would be empowered to hand down noncriminal punishments like community work.

“I had talked to the judges about getting civility courts,” Canton said. “Sometimes what you do doesn’t rise to the level of breaking the law, but it sure does break civility rules.”

Asked what types of punishment she envisioned, Canton provided a specific example.

“Making them do some community outreach work, where they actually get a chance to interact with people and be civil,” she said. “If I were the judge I’d say, ‘What was it?’ and ‘Where did he commit this offense that didn’t rise to the level of breaking the law,’ and I would put him out there and make him be the spokesperson and make him work some community hours.”

At the risk of being sentenced to community service in Florida, I must inform you that Mikki Canton is an unserious imbecile and that the Miami Herald is guilty of shoddy post-factual journalism for running a story about her proposal without any critique whatsoever … Rude and uncivil speech is protected by the First Amendment … The state cannot get around the First Amendment by imposing only community service and “spokesperson” duty; if the state imposes any forcible consequence for speech, it must meet First Amendment limits.

I would paraphrase that the state cannot get around the First Amendment by imposing only disciplinary actions under the rubric of “ethics,” including censure, suspension from practice or disbarment; if the state imposes any forcible consequence for speech, it must meet First Amendment limits.

The truly unethical people in this picture are the ABA delegates who, if they didn’t initially realize the unconstitutionality of a state adopting their proposal, surely had reason to realize it before the debate was over — but went ahead and recommended 8.4(g) anyway in a desire to chill speech they don’t like.

If you don’t mind some NSFW scatology, read the full Popehat blog. The ABA delegates deserve the closing insult he threw at Ms. Canton.

My state’s Supreme Court, which makes and enforces the Rules of Professional conduct (ordinarily relying on the ABA) has not yet taken up this odious Model Rule, and I hope it never does.

Tertiary Things

5

Passed along without endorsement:

Betsy DeVos, education secretary. This is where my conservative sensibilities show. Of course I’m going to think that someone who dedicated most of her adult life to agitating for school choice is a perfect pick for the Department of Education. I personally believe that my grandchildren’s generation will see public schools roughly the way we now see bleeding the humors, or foot-binding: as a practice somewhere between tragically misguided and sadistically cruel. And this is where I am learning to appreciate Trump’s near-total indifference to controversy. DeVos is (gasp!) a billionaire GOP donor! Pass the smelling salts. Who cares? She’s been working this issue 20 years, she has the right views, game on.

(Pascal-Emmanuel Gobry, Donald Trump’s Cabinet is awesome)

* * * * *

“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.