Reading Between the Lines

FROM THE ARCHIVES (Daily Nebraskan columns)

Reading between the lines

Bar Association overstepping First Amendment rights

Jeremy Patrick (jhaeman@hotmail.com)

January 13, 2000

"If there is any fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion..."---U.S. Supreme Court

In the middle of the 20th century, the Supreme Court ruled that government censorship of books violated the First Amendment guarantee of free speech. In the 1960s, they made a huge contribution to freedom of the press by restricting libel law. In the 1970s, they allowed even a despised group of racists like the Ku Klux Klan to march in public. In the 1980s, they protected flag burning, and in the 1990s, they struck down government censorship of the Internet. The battle for free expression is over, and we've won, right? Perhaps not.

Consider the case of Paul Converse, a graduate of the South Dakota School of Law. Converse moved to Nebraska and applied for admission to take the Bar exam. The Nebraska Supreme Court refused to let him take the exam because Converse "lacked the requisite moral character." His crime? While a student, Converse posted a picture of a woman's naked backside on his study carrel, circulated a satirical pamphlet about the dean and sent letters critical of a professor to two federal judges. None of these actions even violated the law school's honor code, much less the criminal law. If Converse had done these kinds of things after getting his law license, he would probably be protected by the First Amendment. Instead, because of the delicate sensibilities of the Nebraska Supreme Court, he's lost three years of his life and tens of thousands of dollars.

Consider also the case of Matthew Hale. Hale, an avowed racist and founder of the World Church of the Creator (a white supremacist religious group), took the Illinois Bar Exam. Hale passed the exam, including the portion on ethics, but was refused a law license because of his political and religious views. The Bar is afraid Hale won't be able to treat black clients fairly. If, as the U.S. Supreme Court asserts, freedom of expression is the "fixed star" of the constitutional "constellation," then the law should only prohibit actions and not words.There is no evidence that Hale has ever acted in a discriminatory manner toward blacks, nor has he ever threatened to treat black clients unfairly.

This failure to separate mere words from actions creates a dangerous precedent. If a Southern Baptist applies for a law license, should he be denied because he might not treat women or gays fairly? I've probably said all kinds of things about Christians ... should I be denied because I might not treat them fairly? Simply put, lawyers don't need to like their clients to do a good job. When lawyers defend rapists, embezzlers and murderers, do you think they like their clients?Probably not, but they're still ethically bound to do their best. Converse certainly acted immaturely-- he could have taken his grievances through proper channels instead of airing them in public. Hale's views are despicable and wrong. But the point is that no one, not even Bar Associations in all of their monopolistic splendor, should have the power to decide what kind of speech is allowable. At the very least, Converse and Hale could have been granted probationary status for a set period of time while an experienced attorney supervised their cases to make sure no problems took place. These small incursions on free speech occur more often than we realize.

Take a look at a UNL Housing poster for example. It prohibits "insensitive language" towards members of certain groups as a "serious violation of housing policy." Does your copy of the Constitution say that there shall be no law abridging freedom of speech "unless the speech is insensitive?" Mine doesn't. I'm certainly sympathetic to the problems minority groups face because of name-calling, but I don't think infringing upon the First Amendment is the solution. When the Constitution protects the likes of Converse and Hale, we can be sure it will protect all of us. The days when the government burned books and imprisoned writers are gone. But the day when all speech is truly free has not yet come.