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.

kanBARoo Court, 4th Installment: The State Bar & Its Academic Allies Undermine Legal Sophistication

Although attorneys form the primary intended audience for these installments, I fear that the Bar-establishment's mindset can damage our legal institutions beyond the direct effect of regulatory policies on attorneys. The following contribution to discussion by a bar-establishment academic makes me think I should have broadened even the primary audience. Both the position and reasoning expressed are frighteningly authoritarian, and they undermine everyone's basic democratic rights.

Bar-establishment academic Jeff Lipshaw discusses in a post entitled "Anonymity, Chatboards, and the Imus Defense" (http://tinyurl.com/2nb2ob) a proposal by a law librarian to require that bar candidates provide a complete list of all online names the candidate used while a law student. Lipshaw does not outright advocate this measure. Rather he gives it favorable coverage while expressing some undisclosed reservations, rather in the manner of Hillary Clinton when commenting on New York Governor Spitzer's immigrant automobile-licensing proposals. That Lipshaw has no fundamental differences with such a measure came out clearly when he responded to a commenter.

The anonymous commenter wrote "The last time I checked, the First Amendment protected anonymous speech. Perhaps our legal academics here need a refresher course in constitutional law."

Mr. Lipshaw retorted, "[W]hile there may [emphasis added] be all sorts of First Amendment protections around anonymous speech, there is no First Amendment right (or any other constitutional right) to be licensed by the state as a lawyer, any more than the Fourth Amendment guarantees you a right to board an airplane, or enter the Supreme Court chambers, without being searched (perhaps our anonymous posters need a refresher course in the Legal Profession). So whether or not there is an affirmative obligation to reveal your identity, one of the risks you take by yapping anonymously (subject to metadata, of course) is that you aren't really anonymous, and when something you thought you said anonymously that reflects on your ability to pass muster under the moral character requirements of the bar admission process turns out not to be anonymous, you have just encountered a real-world consequence of exercising a right. Sorry to burst the bubble."

My comment, not posted on the law professors' "moderated" blog was:

Inquiry that penalizes the exercise of First Amendment rights by preventing those exercising them from practicing law is certainly constitutionally prohibited. (See Baird v. State Bar Arizona (1971) 401 U.S. 1, 8 ["[W]e hold that views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law."])The balancing tests applied to the Fourth Amendment matters do not mean that the search scenarios fall outside the Constitution. They show only that no right is absolute. You would be hard pressed to show a compelling state interest in students' anonymous and lawful postings.

As the Baird court established, a threat to the right to practice law is a general threat to liberty. Such a threat would pose considerable risk to liberty if it threatened only the rights of attorneys. But it does more. If you tell citizens that their "yapping" (Bar-establishment talk for free speech) will imperil their rightful options, such as becoming a lawyer, it restricts the exercise of their rights, regardless of whether the citizens are presently lawyers and even if they do not end up choosing the profession. Diminishing citizens' opportunities by dint of the exercise of rights interferes with their free exercise. The oppressiveness of the bar establishment, even when robed in academic gowns, threatens all civil society. And it is borne of the kind of incompetence in legal reasoning here demonstrated by Mr. Lipshaw, an incompetence that grows out of the State Bar enforcement culture.

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