Authored by Kenin M. Spivak via RealClearPolitics,
California’s far-left Supreme Court has imposed restrictions on the speech and expressive conduct of California’s lawyers “at all times,” even during their unrelated business activities, political endeavors, and personal lives.
Shortly before Christmas, the even more radical California State Bar sternly instructed the state’s 200,000 lawyers to “Read it, declare it, mean it.” This ominous warning introduced the California Supreme Court’s Orwellian Rule 9.7 which mandates every lawyer to affirm that: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.” Any lawyer who fails or refuses to comply will have their license invalidated, and those who violate the oath may face “appropriate fees and penalties” determined by the Bar.
At first glance, this may seem like a reasonable idea. However, under the First Amendment, no government entity can make an individual’s livelihood contingent on conforming to its interpretation of “dignity” or “courtesy” in their personal or political pursuits. Revoking the licenses of non-compliant lawyers also violates procedural due process under the Fifth and 14th Amendments. Linking the oath to vague notions of a lawyer being an “officer of the court” reveals a calculated overreach.
Initially, the terms “strive,” “dignity,” and “courtesy” are so ambiguous in their traditional usage that no lawyer could discern what is expected, thus violating substantive due process. Presumably, dressing in clothing of the opposite gender is now deemed dignified and appropriate, but what about other scenarios such as using offensive language, mentioning a transgender person’s previous name, using correct pronouns based on grammar and biology, opposing unrestricted abortion, sporting a MAGA hat or T-shirt, referring to homeless individuals as vagrants instead of “unhoused,” or undocumented immigrants as invaders instead of non-citizens? What about singing off-key?
All these statements and symbols are safeguarded by the First Amendment, yet, apart from singing off-key, each has been utilized by the far left to censor social media posts and articles, suspend and expel students, and terminate employees on the grounds that their traditional beliefs and expressive conduct are impolite and undignified. In Europe, where there is no First Amendment, prosecutions for speech and symbols deemed offensive by progressives are on the rise. Last year, Britain made over 12,000 arrests, averaging more than 30 per day, for objectionable online posts.
During the Munich Security Conference last year, Vice President JD Vance criticized European elites for threatening to shut down social media to combat “hateful content,” and German authorities for raiding “citizens suspected of posting anti-feminist comments.” The Europeans defended their actions by claiming to preserve courtesy and dignity, only to later fine X $140 million for non-compliance.
Despite the protections of the First Amendment, the Biden administration weaponized its opposition to free speech through a comprehensive campaign that censored, demonetized, and deplatformed conservatives, prosecuted pro-life activists, and scrutinized parents who opposed DEI and acquiescence to transgender activists.
Considerable legal action has been necessary to defend students, faculty, and other employees targeted by state and local governments for their so-called “offensive” speech and symbols, including prayer, refusal to use incorrect pronouns for biological men, and wearing pro-choice, pro-faith, and MAGA attire.
Mandating tone, behavior, and politeness is a violation of the Constitution. However, the implied threat of Rule 9.7 is a more insidious attempt to stifle free speech, and it is likely that the California Supreme Court and Bar will leverage Rule 9.7 to ruin the careers of conservative and America First lawyers who clash with the left’s ever-expanding list of dos and don’ts. Revoking a law license can have a ripple effect, leading to the loss of other licenses, financial support, and business and social opportunities.
Just last year, the California Bar affirmed that “attorneys have an ethical obligation to provide competent and diligent representation to clients, regardless of how unpopular or contentious their causes may be,” yet it simultaneously suspended and called for the disbarment of Claremont Institute constitutional attorney John Eastman for offering legal counsel to President Trump before Jan. 6, 2021. Bar prosecutors deemed his willingness to advise Trump on his options as “moral turpitude.”
The California Bar fervently advocates for DEI, which unconstitutionally allocates opportunities based on race and gender orientation. Proponents of DEI hypocritically brand their opponents as racists, essentially accusing them of undignified and impolite behavior, two grounds for disciplinary action.
The United States Supreme Court has made it clear that the First Amendment prohibits the government from restricting speech, symbols, or expressive conduct based on the message, ideas, subject matter, or content. There are no exceptions for hate speech, courtesy, dignity, or court officers.
The California Supreme Court and State Bar are aware of this. They are relying on their authority over the state’s lawyers to compel compliance. Advocates of free speech must not allow that to happen.
Kenin M. Spivak is the founder and chairman of SMI Group LLC, an international consulting firm and investment bank. He is the author of fiction and non-fiction books and a frequent speaker and contributor to media outlets, including RealClearPolitics, The American Mind, National Review, television, radio, and podcasts.
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