Free Speech in Texas

Here’s a philosophical question for you: Is believing in or advocating racism the same as doing something racist? I’m not saying either one is a good thing – clearly neither is good. But that doesn’t mean racists and sexists and all-around mean people can’t own businesses.

They just can’t do racist, sexist, mean things to their employees and customers.


Surely, you wouldn’t argue that actual discrimination is a First Amendment right?


You know what I’m going to say next.

Yes, someone in authority seems to have failed to see the distinction. The Texas attorney general, no less, last week issued an opinion – just in time for Christmas, racism fans – that says a model American Bar Association rule barring harassment or discrimination infringes upon free speech rights.

Apparently, all that segregation and redlining over the years was just another example of the First Amendment at work.

According to the Texas AG: “One commentator has suggested, for example, that at a bar meeting dealing with proposals to curb police excessiveness, a lawyer’s statement, ‘Blue lives [i.e., police] matter, and we should be more concerned about black-on-black crime,’ could be subject to discipline.”

Thank heavens there was “one commentator” out there who noticed this. (The commentator, by the way, turned out to be a guy writing a memo for the Heritage Foundation.)

And that’s not all that’s wrong with the anti-discrimination rule – it also violates our freedom of association.

“Many attorneys belong to faith-based legal organizations, such as a Christian Legal Society, a Jewish Legal Society, or a Muslim Legal Society, but Model Rule 8.4(g) could curtail such participation for fear of discipline,” the opinion states.

If Jews and Muslims can’t harass and discriminate, then what is our Constitution for?

I know all this sounds weird, but the really weird part of the opinion comes at the very end, where the AG says that a Texas professional conduct rule that seems to say exactly the same thing is just fine.

See if you can tell which is the ABA rule excerpt and which is the Texas rule excerpt:

“A lawyer shall not willfully, in connection with an adjudicatory proceeding, except as provided in paragraph (b), manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity.”


“It is professional misconduct for a lawyer to … engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”

One is just fine and the other is blatantly unconstitutional.

I’m thinking this is one of those Texas pride things.

Language innovation. Twitter and texting may have finally brought us a solution to verbosity in lawsuits.

I did a double-take when I came across this, filed in Los Angeles Superior Court last week:


What could that possibly mean? Did I sleep through that session in torts class?

It turned out that the cause of action was for “negligent infliction of emotional distress.”

Perhaps writing that out was too stressful.

There didn’t need to be causes of action for MM and WD because the caption was well under 140 characters.


Exit mobile version