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.

kanBARoo Court. 24th Installment. What next?

To formulate a legal strategy, I had to determine whether I was dealing with a court, and, if so, from where emanated its jurisprudential imperatives. If the State Bar Court extinguished due process and not merely denied it, my arguments would be self-defeating, leaving “cooperation” with the State Bar the only viable tactic — meaning admit guilt, express remorse, and settle the case by stipulation. This conclusion would vindicate the State Bar defense establishment's method, at cost of vitiating the enterprise’s purported ethical significance.

The Hearing Department’s response to my motions posed a test, in which the prosecutrix screamed that my motions were frivolous, but the court never agreed. Although the Hearing Department was a court, it wasn't much of one. When the Hearing Department offered reasoning in support of decisions, the reasoning failed to take account of any of my arguments except as it misconstrued them. Yet the Hearing Department declined to hold my arguments frivolous and on two occasions granted my motions in substance.

Someone was watching the Hearing Department, but who? Only two possibilities lay in the Hearing Department’s chain of command: the State Bar Court Review Department and the California Supreme Court. The court building's architecture augured that the only honest review would come from the Supreme Court and portended that the Review Department functioned as much a part of an integrated State Bar as the Office of the Chief Trial Counsel and the Hearing Department, but the laws of group dynamics gave some hope that the Review Department and Hearing Department might split. The Review Department’s participation in the conspiracy, its joining the Hearing Department in kowtowing to the Chief Trial Counsel, was proven only when the Review Department's clerk conspired with the prosecutrix to falsify my petition to the Review Department, followed by the Review Department's issuing its denial on the merits, these events timed to occur on the eve of the Hearing Department's OSC. The conspiring Review Department clerk had previously refused to file the papers and announced she had destroyed them.

With the Hearing Department’s entry of my default, I have two options: 1) petition the Review Department to overturn the entry of default and failing that petition the California Supreme Court for review of the Review Department's decision; or 2) wait until the Bar Court enters its final judgment and then petition the Supreme Court for review. I can go immediately to the Review Department and from there to the Supreme Court; or I can go directly to the Supreme Court but only after waiting for the final judgment from the State Bar Court. Cases are rare in which a respondent goes directly to the California Supreme Court, skipping the Review Department. Nobody wants to wait for the announcement that the Bar Court proposes disbarment before challenging the decision.

My anti-waiver strategy compels waiting. Waiting for final judgment carries another advantage when a respondent challenges the notice of disciplinary charges, in opening up an additional basis for appeal, one still more compelling because the entry of default has draconian consequences that turn against the State Bar when it botches the notice of disciplinary charges. When the court orders entry of default, it deems admitted all facts alleged in the notice of disciplinary charges. The protections compare unfavorably with civil defendants against whom the court clerk has entered default. Defaulting civil defendants don't forfeit the presumption of non-liability, and the plaintiff must still prove a case, often to more exacting standards. Legal conclusions are not deemed admitted, even in the State Bar Court. Since the notice alleges scant facts, any judgment will become attackable as based on deeming legal conclusions admitted. The ambiguities in the NDC that made it unanswerable for me are at least equally unresolvable by the State Bar Court.

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