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Twitter Shutdown: A Violation of Free Speech?

The question has been raised whether Donald Trump’s rights have been violated by the recent decision of Twitter to impose a permanent ban on his account.  This follows similar action by Facebook and is happening at the same time as other technology companies are refusing to do business with the conservative website Parler.

The First Amendment of the U.S. Constitution protects against prior restraint of speech by the government.    

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” USCS Const. Amend. 1

The right of free speech secured by the Constitution does not prohibit a private actor, such as Twitter, from controlling the speech on its website. It only protects against the government restricting speech.  However, even with government action the right has its limits.  The Supreme Court has upheld restrictions on free speech when it felt that those restrictions were justified by an argument that the government was threatened.

In Dennis, a case where a group of communists were convicted of violating the law by passing out printed materials that promoted communism, the U.S. Supreme Court said that the First Amendment was not violated by criminalization of political speech that promoted communism and wrote:

“Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.” Dennis v. United States, 341 U.S. 494, 509, 71 S. Ct. 857, 867 (1951)

            The Dennis case was one in a line of cases where criminalization of political speech by communists and socialists was upheld by the Supreme Court.  Interestingly, Dennis was later partially overruled in a case involving the free speech rights of Ku Klux Klan members in Ohio, in which it upheld the free speech rights of the Ku Klux Klan, where the Court wrote:

“the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 1829 (1969)

To many Americans, myself included, it appeared the statements of Donald Trump and the actions his supporters last week were intended to overthrow the government and to encourage imminent lawless action. One viral video of a woman named Elizabeth, who was maced by Capitol police, shows her saying that she viewed the Capitol takeover as the beginning of a revolution. 

“We’re storming the Capitol, it’s a revolution..”

Additionally, there is no government restraint on speech since Twitter, Facebook, and the companies that either host or provide access to the Parlar site are not government actors, but are private entities.  Private entities are not subject to the First Amendment’s guarantee of free speech.  Only the Government can violate the First Amendment. Therefore, the tech companies have not committed a First Amendment violation by shutting down these accounts, especially given the exceptional circumstances that led to their action.    

My New Love: Gatekeepers in the Bookstore

I’m not sure how my wife feels about it, but I’ve fallen in love. I know she’s aware of the new relationship and seems to tolerate it all right.  My new love isn’t with another woman, I don’t think that I have the energy for such things.  My new love is a small independent bookstore, The Writer’s Block Bookstore, on a side street in Winter Park, Florida.  In their small rooms lined with wooden shelves they don’t carry nearly as many books as my local Barnes and Nobles, and their prices are much higher than Amazon.  I like having a large selection and love to save money, but this little bookstore offers me something that is disappearing in our world and it’s the primary reason for my infatuation.  This small bookstore is very selective in the titles they stock, and I’ve found that their recommendations are excellent. A bad book is a waste of time, and I’m very protective of my time. So far, they’ve delivered great me great titles that are well worth the time spent reading. This has great value to me as I often find myself searching through book stacks or amazon search results for books that are well written and appeal to my tastes. What they offer, that I’m not getting in the big stores or online is gatekeeping. The people who work in this bookstore love books in the same way I do and they’re experts in locating and recommending great reads.

We live in time when gatekeepers are disappearing while our choices are exponentially increasing.  Many people, and with good reason, welcome the era of self-publishing, not just in books, but in almost all areas of life.  Growing up the music I heard all came through record companies who carefully selected which artists to record and market. Back then, no record company meant that you were very unlikely to have a large audience, have your records in the stores, or be heard on the radio. Today, we can create very professional recordings in our living-rooms and directly offer those recordings to the entire world through online platforms, no matter how great or poor the music may be.  This gives us more options, but I also find that I waste a lot of time searching through bad music looking for the good stuff.   People talk about this as bringing democracy to the marketplace. For news, we used to rely upon journalists who largely operated under the supervision of publishers and editors.  Today, we have news aggregators that learn our preferences and send us stories that reinforce our world view. Setting up an online newspaper or a YouTube News Channel is so easy that any teenager with a smartphone can do it and potentially draw a large audience. Our choices have expanded, but we’re no longer sure who to believe.

For me, this begs the question: What are the pitfalls of expanded democracy?  I’ve lived my life being told that everyone should have the right to vote and that all votes should be counted equally, that we should empower the people to choose, that there is wisdom in the people, and that we should expand access to the podium. Until recently, I never questioned this.  Power to the people has been my mantra.  But what if I am wrong?  Is this the right approach in all parts of our lives? I recently listened to a speech by late Supreme Court Justice Scalia in which he talked about the difficulty democracy and how easy some things become with a totalitarian government.  I think this is a good question.

Should we apply the democratic process more broadly?  If we’re flying on airplane, does it make sense to allow the passengers to vote about how to handle an unexpected thunderstorm along the flight route? If you’re on the table in an operating room and you start bleeding unexpectedly should the input of the scrub tech be given equal weight to that of the surgeon? If you’ve been arrested and are in jail, should you take legal advice from the other prisoners or your lawyer (I’ve seen this one more than once and it rarely ends well).

I think gatekeepers, people with experience and knowledge that the general public lacks, have great value and there times when we need their counsel and to empower them to act on our behalf.  Certainly, it’s a balance, but we need to be aware of the short-comings of the democratizing our society.  Not all voices are the same and should be given the same weight in all situations.

The framers of the Constitution were afraid of the popular vote, which is why we have a republic rather than a true or pure democracy.  When the Constitution was first written the vote wasn’t extended to everyone.  Only wealthy white males voted.  Yes, it was racist and sexist, but it was also elitist.  Even under that paradigm, the President was not a direct election. In the past 200 years we have greatly expanded the vote to almost all adult citizens, which I believe is a good thing.  However, our choice for President has been largely under political parties control who selected their candidates. It was virtually impossible for an outsider to run a competitive campaign.  However, the power of political parties has been diminishing for the past 50 years with the rise of popular vote primaries that took selection of the candidates out of the back smoke-filled rooms and made the party conventions more ceremonial than functional. We saw this in the most recent presidential election where Donald Trump ran and was elected as a Republican party outsider. Although most Republican party leaders feared Trump and the damage he would inflict upon our Democracy, they were powerless to stop him. Likewise, Bernie Sanders, who has historically been an independent, came from outside the party and nearly became the Democratic candidate.  The impact of Super Delegates in the Democratic party, who make up 15% of the convention votes and are not obligated to follow the votes of their state helped ensured Sander’s defeat, reinforcing the party’s role as gatekeeper.  The Republican Party also has superdelegates, but they make up only 7% of the convention votes and are bound to their state’s primary votes.

However, in our Court system, where the framers envisioned unrestrained juries and contested trials, democracy is in rapid retreat.  Civil jury trials, where we allow the average person sitting as a juror to weigh facts that decide a case, are becoming increasingly rare.  For many years most written contracts that we use for everyday transactions have included a waiver for jury trial.  More stunning is how we’re doing away altogether with our civil Courts through binding pre-dispute arbitration agreements and class action waivers that take away the right to even enter a courtroom.  What is different from the Courtroom than the ballot box?  I think it’s the fact that when the average person enters a Courtroom to tell his or her story of being wronged, they have a lawyer as their gatekeeper who knows how to tell their story in a way that’s effective.

What’s the future of democracy in America? I don’t know.  Maybe it will be that more democracy and removal of the gatekeepers is a good thing.  However, I do know that I would pretty nervous if I were on a plane where anyone could become pilot, regardless of qualifications, through a popular vote.  On the other hand, if you gave people the choice of 3 experienced, trained, and licensed pilots, I’d feel better.

Reality Distortion Field

They say that when Apple was developing the Macintosh computer, the engineers took the term “Reality Distortion Field” (RDF), from Star Trek, and used it to describe the ability of Steve Jobs to convince himself and others to believe almost anything and deny reality.  It was said that Jobs would routinely succeed in using charm, charisma, bravado, marketing, appeasement and persistence to overcome his team member’s denial or belief in the truth. They also said that Jobs would use the RDF to routinely adopt other people’s ideas that he would claim as his own after having rejected the very same idea when suggested by a team member a week earlier. Jobs’s reality distortion field wasn’t limited to his professional life. For example, Jobs appalled many around him when he persistently denied reality by refusing to recognize his own daughter, Lisa, despite a paternity test that showed more than a 96% change that he was the father.

The effect of RDF on the Macintosh design team was both positive and negative.  Jobs’ refusal to accept reality allowed him to get the team to push through barriers and accomplish things they thought were impossible. The Macintosh team created an amazing cutting-edge machine, and despite the insanity of the experience, most say it was one of their proudest accomplishments.  On the other hand, the Macintosh team missed development deadlines by more than a year, which gave IBM time to establish itself and Microsoft as the dominant players in the business personal computer market.  Apple has never really recovered this market loss.  This is one of the reasons that to this day people debate whether Macintosh was a commercial failure or success.  The human cost to Apple and Jobs was huge. Jobs’ behavior drove off many talented engineers and employees who quit and went to work for Apple’s competition.  Ultimately, due to his behavior, Jobs ended up out of the company that he co-founded.  Granted, he would return to help rescue the company a decade later, but it is said that he returned more mature and seasoned, and was more subdued in his leadership.

I think about this tendency to deny reality when I read the news accounts that have been coming out of the Trump White House.  I’m left wondering how similar was Steve Jobs during that time to Donald Trump today?  I read in the news that Donald Trump is now accusing President Obama of bugging his campaign office, but isn’t offering any evidence.  There was the whole fiasco regarding the crowd size at his inauguration in which his staff told reporters that they were putting forth “alternative facts”. There was the media statement last week that he believes the recent increase in anti-Semitic incidents is being done by Democrats to harm him, again with no evidence to support the statement.  There is the denial of human-induced climate change despite the overwhelming scientific evidence supporting it. Indeed, it’s been one episode of reality distortion after another since he took office just over a month ago. The question is where does this take us? Will Trump break through barriers to create a new future for America that wasn’t previously thought possible? I’m skeptical because I don’t see the passion to create in Trump that existed in Jobs.  On the other hand, will he alienate our allies and his supporters, produce little, and ultimately leave us with an expensive and deleterious outcome?

Of course, it’s not just inventors and populist politicians who are subject to reality distortion.  I think people do it all the time, albeit to much lesser degrees.  As a lawyer I spend a lot time trying to sort fact from fiction, and it’s amazing how often honest people manage to distort reality in order to avoid an unpleasant or inconvenient truth.  The important difference between most people and people such as Trump and Jobs is that when confronted with evidence to the contrary, most people accept reality.

 

Is Kim Davis A Truly Willing Martyr?

I wasn’t planning to write a blog post about Kentucky Clerk of Court Kim Davis and her refusal to issue marriage licenses to same sex couples. I don’t see the situation as being especially complicated or interesting from a legal standpoint. I feel that her recent jailing was highly predictable. On the surface, this situation seems to be little more than a woman who seeks a special exemption for herself from  the  performance of her elected duties on the basis of religious belief. However,  when reading an ABC news report regarding her testimony during the contempt hearing, something jumped out at me that makes me suspect that this situation is  more complicated and I’d like to discuss what I think might be going on.

ABC news reported: “’I did a lot of vile and wicked things in my past,’ Davis said when asked about her life before becoming a Christian in 2011.” I think this is an important statement that tells us a lot about how Mrs. Davis sees herself and the role her religious identity plays in her life. Clearly, Mrs. Davis carries a great deal of shame about prior decisions in her life and she sees her religious conversion as a return to worthiness. She’s seeking redemption, a way to undo the mistakes of her past, through her willingness to be a martyr.

As Jewish person I can get my head around this idea of redemption. People who follow my religious tradition are currently in the month of Elul, which is a time of reflection in preparation for Rosh Hashanah and Yom Kippur, two holidays in which there is great focus on redemption and repentance. Judaism recognizes two forms of redemption. One form of redemption involves healing the relationship between the individual and G-d, the other form involves healing the relationship between ourselves and other people, especially those whom we may have harmed. I believe that redemption is a universal human need. We all make mistakes in our lives and sometimes we harm others as a result of our mistakes.   It is important that we find some sort of mechanism that  allows us to repair whatever damage we may have caused and to move forward without carrying endless guilt.

It appears that Mrs. Davis believes that having even the most remote connection to same sex marriages will impair her relationship with G-d, and that she most prove her love and gratitude to G-d through self-sacrifice i.e. martyrdom.  I can’t help but feel that this martyrdom is rooted in an unhealthy degree of self-righteousness that is contrary to the spiritual renewal of redemption that she seems to be seeking. During her conversations with the same sex couples to whom she’s refusing marriage licenses,  her facial expressions are, at best, condescending and dismissive of their emotional pain.

Is there evidence to suggest that she’s being manipulated? There certainly is a crowd of opportunists surrounding her, for example, politicians like Mike Huckabee, who is championing her cause as  judicial tyranny and as a war on Christians . According to CNN, Ted Cruz recently issued a written statement that this is an attempt to drive Christians from public office. I also wonder about the religious education and guidance she is receiving from the clergy and elders of her Church, who generally have no formal religious training, do not attend any seminary, and are exclusively male. Is her situation different from those who, while seeking religious purpose and redemption, are manipulated into being suicide bombers or jihadists by those seeking political and religious power and control?

Politicians have no obligation not to exploit people or their causes. Likewise there is no legal duty of loyalty, or even competency, for a clergy person. However, there are ethical obligations for lawyers, and I have to wonder what role her lawyers may be playing in promoting her martyrdom? As an elected official involved in a dispute regarding the policies and procedures in her office, one might expect that she is represented by the County Attorney or a law firm that routinely represents elected officials. This is not the case for Mrs. Davis, who is being represented by lawyers through Liberty Counsel, a group that describes its purpose on its webpage as, “to preserve religious liberty and help create and maintain a society in which everyone will have the opportunity to discover the truth that will give true freedom.” The Southern Poverty Law Center has labeled Liberty Counsel as an anti-LGBT hate group. According to the Southern Poverty Law Center, Liberty Counsel has championed causes such as removing hate crime legislation. The Liberty Counsel website contains a Marriage Solidarity Statement in which they claim “the Supreme Court has no authority to redefine marriage and thereby weaken both the family and society.”

Is there a conflict of interest between Liberty Counsel’s agenda and providing competent legal advice to their client, Mrs. Davis? That is, can Liberty Counsel competently advise  Kim Davis regarding her best interests, or is it about promoting their political agenda with her being a martyr to the cause? This important question was raised in a recent Slate article in which the columnist observes:

“Yet the Liberty Counsel didn’t mind putting their client at risk—perhaps because the idea of a middle-aged woman being hauled off to jail for purportedly following her conscience would send thousands of anti-gay Americans reaching for their pitchforks (and checkbooks).”

A lawyer’s duty paramount duty is always to the client. The question that arises in many cases, such as Mrs. Davis’ where a third party is providing funding, is who is the client? Are her lawyers working for the “ministry”, which has its own agenda, or for Mrs. Davis whose interests might align in some ways, but in other ways might be at odds with those of the ministry? Such a problem is not unique in the law, insurance defense attorneys sometimes face a similar dilemma, especially when the insurance company wishes to settle or contest a claim and the client being sued does not. However, in cases involving insurance defense lawyers there is some protection for the client in that if an insurance company refuses to settle a claim and the client is forced to trial and loses, the insurance company then has to indemnify the client for the full amount regardless of the policy limits. In Mrs. Davis’ case, the stakes are not simply monetary and it’s not Liberty Counsel who is going to jail or who will be burdened with a record of contempt, it is only Mrs. Davis. I note that while Liberty Counsel is standing in front of the national press promoting its cause of suppressing rights for gays and lesbians, no court has found merit in any of the claims it has raised so far, and their client is sitting in a jail cell.

There is another ethical obligation of an attorney to keep in mind when advising a client such as Mrs. Davis. As a lawyer I am not permitted to advise my client to disregard or violate a Court order. I can agree with my client that an order is unfair or unjust, but I cannot counsel a client to violate a judicial order. This is my obligation as an officer of the Court. I must give respect to judicial rulings, even when I don’t agree with those rulings. I am free to challenge them on appeal, but I am not free to advise my client to disobey those rulings. As an outside observer of this case I have no idea what  discussions have taken place between Mrs. Davis and her lawyers, but I’m left wondering what counsel she is actually receiving regarding complying with the Judge’s order? Is a client well served by lawyers whose focus may be their interpretation of Biblical law rather than the secular law of the Court? I think that an argument can be made that, unless you are able to encourage your client to follow the orders of the Court, you are not able to render competent legal counsel to the client.

I don’t agree with Mrs. Davis’ argument that her religious beliefs permit her to refuse to allow her office to issue marriage licenses to same sex couples. I feel that as a matter of law it fails on many levels. However, I’m really wondering whether or not her need for redemption is making her susceptible to the manipulation of those who have surrounded her in this cause. Of course, in the end, it will be Mrs. Davis who will bear the costs.

 

Advice To The New Law Student

Advice for the new law student

City University School of Law
City University School of Law

I’ve never had children, so I don’t know what it’s like to experience the emotions of a parent.   The closest I’ve come to being a parent is my relationships with my nieces and nephews. If being a parent is anywhere nearly as cool as being “Uncle David” it has to be awesome.

This week I’m very proud and excited that my nephew is following in my footsteps and will be starting as a 1st year law student at my alma mater, City University of New York School of Law. This got me thinking about what I’ve learned in my journey from being the child of divorced parents who didn’t have college educations to being a lawyer. I thought about what advice I can offer my nephew as he takes his journey and this list is what I’ve come up with:

 

 

Relax. Despite all you’ll hear about how difficult and stressful law school is, it’s really not that bad. When studying law, read the cases as stories and then think about what the moral story is. Don’t try to memorize, try to understand. In law school what you are really studying are the sacred values of our society. It’s much easier and more interesting to study and remember stories than to try to memorize rules and holdings.

Be Diligent. Go to class every day, handwrite your notes on paper, go home and rewrite them, and then later type them into your computer to make an outline in which you brief every case. Study your outline for the final exam. If at all possible, don’t take a computer to class and turn your phone off. They are very likely to distract you.

Strive for Integrity. One of a lawyer’s most valuable assets is his or her reputation for integrity. Start building yours now. Hold yourself to a very high standard of honesty and trustworthiness. People will notice and your fellow law students will remember.

Be Creative. Law is a creative endeavor; make time to develop yourself as a creative thinker. As a law student I was amazed at how much pastel painting opened my mind to think about the law from new perspectives. To this day, when confronted by a vexing legal problem I will sometimes put down the law books and pick up a musical instrument, write or read a poem, or listen to good music.

Open yourself to Weird. Sometimes the weirdest most unorthodox law professors teach you truths about the law that you won’t find in textbooks.

Be Civil. The image of the jerk lawyer is popular entertainment, but is a recipe for disaster in real life. Remember, every dog has his day. The lawyer you insulted, embarrassed, or humiliated today may be the lawyer you need a favor from tomorrow. Civility is much more than being polite to opposing counsel and their clients; it’s treating others as you want them to treat you regardless of how badly they may be behaving. Also, it’s absolutely necessary for your own mental health and effectiveness as a lawyer. Start practicing it now with your fellow students and professors.

Think before you act. When you’re about to do something that you’re not sure of, ask yourself: If I had to explain this on my bar application, what would I say?

Plan your career early. Law is a competitive business; start planning your career now. Most of us don’t graduate into $120k per year jobs with large law firms. Make an effort to network with the legal community outside the law school. Clinics and internships are a great way to start. This will help you identify what areas of law interest you and will provide you with contacts for things like client referrals and job opportunities.

Keep monkeys off your back. No legal career has ever been helped by alcohol or recreational drug use.   According to the ABA, lawyers suffer from addiction at twice the rate of other professions and that most addicted lawyers start as addicted law students.   Practice good mental hygiene and stay true to your own values.   Get help if needed.

Keep things in perspective. There is a difference between striving for excellence and being a perfectionist. Perfectionism will paralyze you and keep you from learning. You will make mistakes and occasionally fail despite your best efforts. The professor, or later the judge or jury, will not always agree with you. Accept it and move on.

Make Time Take Care of Yourself. Eating a healthy diet and getting regular exercise will help you perform better as a student. Don’t forget, there is a world outside the law school and you’re living in one of the world’s great cities. Go explore. You will cherish the memories.

Enjoy the journey. Don’t miss the experience of law school by only focusing on the life that may follow it. In law school you will the opportunity to explore history, examine our societal values, develop your writing and persuasive skills, and create many new relationships. Be grateful for the experience while it happens. Remember, my 3rd year clinic partner never got to practice law because, despite being young and living a healthy lifestyle, she died unexpectedly while waiting for her bar exam results.  No one guarantees us tomorrow, we must be grateful for today.