54th Installment. Protected Nonspeech and Unprotected Speech: Paradoxes of Nonprotection

Installments 53 and 53A assumed filings, even those the courts deemed frivolous, are protected speech. Strong arguments support that contention, but the U.S. Supreme Court disagrees. Without much analysis, the U.S. Supreme Court concluded that frivolous court filings are unprotected speech. (Bill Johnson Restaurants Inc. v. Nat. Lab. Rel. Bd. (1983) 461 U.S. 731, 743 ["(B)aseless litigation is not immunized by the First Amendment right to petition"].) (But see Be&K Constr. Co. v. NLRB (2002) 536 U.S. 516, 531.)

Thanks to R.A.V. v. City of St. Paul, MI (1992) 505 U.S. 377, unprotected speech isn’t entirely unprotected. Consider obscenity, a category of unprotected speech. The absence of Constitutional protection for obscenity means obscene speech is not only subject to limitation based on a compelling or even substantial state interests but can be suppressed to any degree the Legislature intends, without tailoring. But it doesn't mean the First Amendment gives the legislature unfettered discretion in selecting which obscene acts to censor. The Legislature, most importantly, cannot choose to censor obscenity based on the viewpoint the speech — contained in the obscene nonspeech — expresses.

If the legislature decides to allow obscene publications by the Greenback Party, it must also allow the Prohibition Party to publish matter containing obscenity. The main barrier to complete control over the publication of matter belonging to an unprotected category is that the right's exercise can't be conditioned on viewpoint. While the key formal distinction in First Amendment jurisprudence is content discrimination versus content neutrality, the real target of prohibiting content discrimination is often said to be discrimination against viewpoints. (Stone, Content-Neutral Restrictions (1987) 54 U. Chi. L. Rev. 46, 48 ["Whether applying an ‘absolute protection’ approach, a ‘clear and present danger’ test, a ‘compelling governmental interest’ standard, or some other formulation, the Court almost invariably reaches the same result-content-based restrictions of ‘high-value’ speech are unconstitutional"].)

Unlike bans on obscenity — but like bans on incitement presenting a clear and present danger of violence (Schenck v. United States (1919) 249 U.S. 47 [affirming criminal penalties for wartime military-draft-repeal agitation intended to encourage obstruction]) — bans on frivolous filings are inherently viewpoint discriminatory. The ban, however, proscribes a dimension of viewpoint the state can ignore. The First Amendment tolerates complete irrationality in discriminating among levels of frivolousness, even though this discrimination is inherently against viewpoints. Similarly, during war, the state can ban only some speech apt to cause imminent violence, even though calling for imminent violence is a content distinction and, not only that, but is a viewpoint distinction: whether one thinks immediate violence is a good thing is a difference in viewpoint, not just a difference in content.

What remains illegal under the R.A.V. standard, despite the unprotected status of frivolous filings, is apportioning the privilege of frivolous filing. The government can't let some groups file frivolously and ban others trying to exercise the same privilege. Since to the extent the filing is protected its protection deals with viewpoint discrimination, any discrimination with respect this right's complete suppression is subject to strict scrutiny.

Analogized, the government totally suppresses incitement in one jurisdiction but treats it mildly in another, despite the speech carrying the same dangers. If denizens of the City of Delitiga could stand on a street corner giving emotional speeches that risked a riot, but denizens of the City of Alitiga suffered ten years forced labor in Alaska for the same outrages, the Alitigans would be denied the equal protection of the law. Only a compelling state interest in discriminatory treatment would justify censorship in one place and not the other, given the same instigation and potential for violence. Similarly, lawyers suffer potential disbarment for filing frivolous motions or violating court orders, and nonattorneys in pro per suffer no catastrophic penalty.

The relationship between protected speech that survives strict scrutiny and unprotected speech was a thorny but unacknowledged problem in constitutional jurisprudence until R.A.V. The doctrine of unprotected speech was first propounded with the rule allowing the government to punish fighting words. (Chaplinsky v. New Hampshire (1942) 315 U.S. 568.) As the minority insisted, traditional interpretation would have held, uncritically, that "unprotected speech" is unprotected simpliciter. In R.A.V., Justice Scalia, writing for the majority, argued convincingly that the First Amendment doesn't countenance forcing one side to argue by "Marquis of Queensbury Rules" while the other side fights "freestyle." (R.A.V. v. City of St. Paul, MI, supra, 505 U.S. at p. 392.) On the R.A.V. standard, unprotected speech is unprotected only with respect to its unprotected aspect. Where St. Paul banned "hate speech" against only some groups, even though this speech consisted of "fighting words," and even though the groups were suspect classes, the City of St. Paul acted in excess of its rights under the First and Fourteenth Amendments by discriminating against contrary viewpoints.

Justice Scalia doesn't directly address the contrast between unprotected speech and the strict scrutiny test. Although many cases survive strict scrutiny in district and the court of appeals, First Amendment constraints don't survive strict scrutiny in the U.S. Supreme Court. (Winkler, Fatal in Theory and Strict in Fact (2006) 59 Vand. L. Rev. 793, 796.) [A puzzle Juridical Coherence will endeavor to solve.] Even the Supreme Court need not address what's not before it. What follows from the majority opinion is: restrictions on unprotected speech need not be tailored to legitimate state interests. The constraints can't be overinclusive, nonetheless; that, everyone agrees. R.A.V.'s law doesn't prohibit underinclusiveness, as the First Amendment requires of content-neutral constraints on protected speech. For unprotected speech, the First Amendment says the government need not be fair to its purveyors except as it bans protected aspects. One of those protected aspects is viewpoint neutrality in extending the state's allowances. Attorneys have become the surprise targets of discrimination.

Don't miss my new blog Juridical Coherence: Legal Theory on Framework Issues.

Interlude 8B. The Ronald N. Gottschalk Matter and the Ethics of Confidentiality: A Test of Principle

The Gottschalk matter helps illuminate the ethical rules that should control professional services offered by nonattorney lawyers. Confidentiality law specifies two kinds of protection: attorney-client privilege and attorney-client confidentiality; the leading case on the distinction is Brennan's Inc. v. Brennan's Restaurants Inc. (5th Cir. 1979) 590 F.2d 168, 172 ["This broad ethical duty protects not only against disclosure of privileged communications but also against the revelation of confidential information that is not privileged."]) The broader duty contrasts with the client-attorney privilege, which must go to the consultation's substance. (X Corp. v. Doe (E.D. Va. 1992) 805 F.Supp. 1298, 1305.)

On privilege-level matter, by policy, I incorporate into my fiduciary duty guarantees stronger than any attorney can offer and broaden their scope to include my authorship of any work product. I treat express personal guarantees as binding as core privilege-level substantial confidences. Privilege-level matter is subject to an absolute privilege that I refuse to breach, even if compelled by order or prosecution or justified by litigation. No attorney can offer this guarantee without accepting disbarment for bad-faith disobedience to court orders. (Bus. & Prof. Code, § 6103.)

Applying the distinction between levels of confidentiality to my Gottschalk disclosures, I respected the attorney-client privilege absolutely but released matter prima facie confidential under the broader ethical standard: my knowledge of Gottschalk's skulduggery insofar as I was its target. Contrasted with the privilege level, my guarantees on broad confidentiality are only conditional. They won't necessarily survive court order or incontrovertible fraud.

Interlude 8A. Ronald N. Gottschalk Esq. —The Smoking Gun

Report: Ronald N. Gottschalk Esq. denies my accusations of fraud, less opprobrious than his anti-First Amendment threats. To quench readers' lawyerly thirst for proof, I append two e-mails: the first, confirming our agreement; the second, claiming weather conditions delayed Gottschalk's performance, which he didn't intend to deliver. My low rate expressed anti-State Bar solidarity.

BEGIN E-MAILS

from Stephen R. Diamond to gov@roadrunner.com, randypotter@gmail.com date Sat, Sep 27, 2008 at 1:36 PM subject Agreement mailed-by gmail.com

hide details Sep 27

Reply to all

Dear Ron,

You retained me today for legal research, analysis, and consultation. We agreed on a fee of $50 per hour, and an initial retainer of $750, which I will apply to the first 15 hours of work.

No fees will be charged for previous telephone consultation time. I will begin work upon receiving the relevant documents by e-mail and a business or trust account check for $750, or notification that you have actually mailed it.

Stephen R. Diamond
Legal Research & Writing Service
Supplier of Legal Theories
srdiamond@gmail.com
760.974.9279

from Randy Potter to "Stephen R. Diamond" , gov@roadrunner.com, randypotter@gmail.com date Sun, Sep 28, 2008 at 12:29 PM subject Re: Mailing Address mailed-by gmail.com

hide details Sep 28

Reply to all

We had a massive power failure in North Mandiville canyon last night for all residents. That included theinternet, and all power. Will try to email the documents tonight. I will mail the retainer check Monday. Ron

END QUOTED E-MAILS

The addressee Randy Potter is Gottschalk's employee.

Interlude 8. Ronald N. Gottschalk, Legal Predator — A Public Warning

Update at Interlude 16.

Some State Bar respondents deserve disbarment. In this category falls Ronald Norton Gottschalk, Esq., a parasite who fraudulently offers to buy research time, even resorts to the check-is-in the-mail subterfuge, and intends never to pay. Gottschalk faces charges and probable disbarment, but he is sufficiently unprincipled to prey on other State Bar respondents, defrauding one after failing with the other. On breach of solidarity, we State Bar opponents and respondents must police ourselves.

Gottschalk's verbose attempt to intimidate and bully reveals the kind of lawyer he is or was. Despite claiming he supports the legal war against the California State Bar in public and lawyers' interest, he plays State Bar stooge by threatening this blog's extinction. He resembles the State Bar in more than practicing with knavish ethics: he also practices idiocy. His threatening e-mail, below, accuses me of violating confidentiality by disclosing his skulduggery. When Gottschalk first telephoned, I was suspended by the State Bar, as he, kanBARoo court reader, knew. As to ethics, distinguished from legality, I instructed Gottschalk before discussing his case that no professional relationship existed until he paid a $750.00 retainer, the "check in the mail"; his intrusive phone calls immediately alerted me Gottschalk's character is amiss.

BEGIN QUOTE OF GOTTSCHALK THREATENING E-MAIL

LAW OFFICES OF

RONALD GOTTSCHALK & ASSOCIATES

1160 South Golden West Ave., Suite 3

Arcadia, California 91007

E-mail: Gov@roadrunner.com

Tel: (626) 755-1688

Fax: (877) 284-3067

PRIVILEGED AND CONFIDENTIAL COMMUNCATION

December 16, 2008

SENT VIA E-MAIL ONLY

srdiamond@gmail.com

Stephen R. Diamond, J.D.

6424 Mountain View, St #2
Joshua Tree, CA, 92252

Re: Gottschalk v. Diamond et al.

Notice to Cease and Desist for Violation of B&P §6068(e) and B&P §6450-6455

Notice of Intent to seek injunctive relief, OSC re contempt including the removal of your

Blog and website for your continued violation of B&P §6068(e) and B&P §6450-6455 and orders of the California Supreme Court, without limitation

Dear Mr. Diamond:

Your conduct to date reflects that you continue to violate B&P §6068(e) and B&P §6450-6455 against myself and others. Your allegations are specifically denied and constitutes bad faith and actionable conduct including for an award of actual and punitive damages.

Although you have been recently disbarred by the Supreme Court of the State of California, you are still obligated to maintain confidentiality under B&P §6068(e) and B&P §6450-6455 and cannot use your website or blog to obtain collateral advantage over myself and others.

Accordingly, if you breach confidentiality or publish any information about me on your blog and website as you have threatened or reveal confidential information to third parties, I will sue you under the RICO Act and will seek injunctive relief, an OSC re criminal contempt of the California Supreme Court Order for your disbarment and for removal of your website and blog for the unauthorized practice of law by you, without limitation. You have admitted that the blog and websites are owned and maintained by you.

Mr. Stephen Diamond, J.D.

Re: Gottschalk v. Diamond

December 16, 2008

Page 2

Nothing contained herein shall constitute a waiver of my collective rights and remedies against you and those who aid and abet you. Your conduct is actionable and you continued

violation of B&P §6068(e) and B&P §6450-6455 constitutes sufficient grounds for the relief that I will request from the Federal Court. None of your conduct is privileged and is further actionable based upon your disbarment and violation of the orders of the California Supreme Court.

Very truly yours,

GOTTSCHALK & ASSOCIATES

RONALD GOTTSCHALK

END REPRODUCED GOTTSCHALK LETTER

kanBARoo Court. 53A Installment. Subject the State Bar to Strict Scrutiny

[I suggest first reading: 53rd Installment. State Bar v. Equal Protection of the Law.]

No judicial determination affecting an equal-protection action is more important than level of scrutiny. Most equal-protection cases fail, entitled only to the rational-basis standard, which the state trivially satisfies. An equal-protection action is entitled to strict scrutiny when the state actor impinges a First Amendment right, such as the right to petition. To bring a winnable equal-protection action based on State Bar discipline for court filings, the First Amendment right to petition comes into play subordinate to equal protection. A respondent's strict-scrutiny equal-protection case requires determining that: 1) the subject State Bar discipline impinges the right to petition; and 2) the impingement exclusively targets lawyers. (Cf. Rattray v. City of National City (9th Cir. 1994) 36 F.3d 1480, 1483 [analogous relationship of equal protection to privacy, instead of petition].) Notice that determination "1" suffices for strict scrutiny on the First Amendment issue itself, a potentially confusing observation because the 53rd Installment brought in the Fifth Amendment to supplement the untenable First Amendment approach. To solve the conundrum: A compelling state interest in regulating the court’s receipt of documents, consuming court time, justifies the restraint on speech.

To succeed with the present equal-protection and free-speech argument, you must allege impingement of protected speech. Don’t expect sustaining this allegation to be easy, as the court will try to categorize frivolous motions as unprotected, alongside obscenity and intentional lies. In a near-future Installment, I'll sketch a variant argument that can prevail without the court's determining that frivolous filings are protected speech, but proving that penalties for frivolous motions restrain protected speech isn't inherently hard apart from judicial bias, despite the absence of decisions addressing the categorization. Since “frivolous” describes the aim of a motion or action, a ban on frivolous proceedings prohibits a range of objectives. Since the ban takes sides against petitioning for objectives deemed frivolous, the speech restraint is viewpoint discriminatory, not content-neutral. Frivolous filings can be regulated only to satisfy a compelling state interest in procedural orderliness. But no compelling state interest requires prohibiting attorney disobedience to orders and rules when nonlawyers in propria persona have the right to test petitionability’s limits, subject only to milder contempt penalties.