Trading the First Amendment for a Law License?

Yesterday’s Indianapolis Star carried a story about Paul Ogden and the Supreme Court’s Disciplinary Commission. It’s a story that should trouble anyone who really cares about the First Amendment, but especially lawyers.

The facts are fairly simple: Ogden represented a client before Hendricks Superior Court Judge David H. Coleman. In a private email,  he criticized the Judge, opining that he had a conflict of interest. At the time he wrote the email–and again, I note that this was a private communication–the judge had already been removed from the case for failing to act within an appropriate period of time.

It is unclear how the judge even found out about the email, but he did, and demanded an apology. Ogden refused. ( Paul is one of those people who will stand on principle even when doing so will clearly cost him.) Had he apologized, that would have been the end of it. Since he didn’t–he faces loss of his license to practice law.

Think about that for a minute. A “transgression” that could be cured by a simple apology is nevertheless so serious that the Disciplinary Commission can respond by destroying a lawyer’s ability to make a living. And what is that transgression? “Defaming” a judge by criticizing him in a private email.

As a recovering lawyer, I find this seeming vendetta very troubling. As a lifelong civil libertarian, I find it dangerous.

The Disciplinary Rule prohibiting certain criticisms of courts and the justice system is there for a reason–it is meant to avoid statements that might prejudice a case, or demean the legal process and thus respect for the rule of law. Imposing that rule in a case where a lawyer has publicly cast aspersions on a judge or court can be justified–although even then, there are limits imposed by the free speech provisions of the First Amendment. (I recall another Indiana case where a lawyer included a snide remark in a footnote in a brief he filed. The brief was a public document. The Indiana Supreme Court sanctioned the attorney; the U.S. Supreme Court overruled that decision, citing the First Amendment.)

In this case, the argument that criticisms of the court undermine public confidence in the justice system is simply not tenable, because the criticism was not public. And a comment in a private communication, made after the judge no longer sat on the case, could hardly prejudice the outcome.

Most of us, caught in a similar situation, would have simply given the Judge the apology he demanded, thus making the problem disappear. It is a rare lawyer who will risk his license to defend a principle, even a principle as important as our First Amendment right to speak our minds.

Perhaps there is more to this story, but from what has been reported it seems to me that the person “demeaning” the justice system is the Judge who pursued this complaint. As a practical matter, no one would ever have known about the allegation of a conflict had the complaint not been lodged.

The larger question, of course, is whether the receipt of a license to practice law comes with a condition that the recipient relinquish the future exercise of his or her First Amendment free speech rights. If so, those considering the practice of law might be well advised to rethink that choice.

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Drip, drip……

The Daniels Administration may now be in the rear-view mirror, but sometimes, a rear-view image allows us to see things we missed when the view was head-on.

Yesterday, more embarrassing emails emerged--this time, from the Superintendent of Public Education’s office. It seems that Mr. Bennett was perfectly willing to play games with his beloved “A-F” grading system for schools when a GOP donor’s charter school failed to make the grade. The emails disclose that the system was manipulated so that Christel Academy–a charter established by major donor Christel DeHaan–would not get the “C” grade it deserved, but would instead be awarded an A.

Bennett is frantically trying to spin the emails, but–like those issued by Daniels in the Zinn controversy–they are hard to re-interpret.  Superintendent Bennett blew plenty of smoke during his tenure in office, but these messages are anything but ambiguous.

There are a number of observations one might make over these latest disclosures. At the very least, the emails indicate a willingness to overlook deficiencies of favored charter operators that the administration was unwilling to extend to public schools. They confirm a widespread belief that Bennett was a political operative charged with furthering Daniels’ ideological agenda, not an educator. (Sue Ellen Reed, Bennett’s Republican predecessor, was an educator, and Daniels forced her out of that office.)

It’s also hard to understand why either Daniels or Bennett felt they could express themselves so clearly when using official email. Did they not realize that these messages would be maintained and discoverable?

Of course, the sixty-four thousand dollar question, as we used to say, is: who is leaking these delectable morsels? How has the AP known to ask for them?

And what other disclosures await?

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Pissing on Democracy

Democratic theory is actually pretty simple; voting is a substitute for physical struggles for power, but it only works when the fight is fair. The loser in any election abides by the decision because the winner abides by the rules.

What we are seeing now is a situation where the losers refuse to play by the rules.

In Washington, the GOP’s antics have been the equivalent of a big “screw you.” The party has said, in effect, “we don’t care that the people voted for this President, despite our best efforts to keep his supporters from the polls. We are taking our ball and bat and going home–we are refusing to play the game.” In this case, of course, the “game” is governing the nation, and their childish behavior has made that nearly impossible.

In Indiana, where the Republicans won almost every office, they are determined to strip the one Democrat who did manage to win office of the authority to do her job.

Most recently, in yet another in a series of power grabs, the State Board of Education voted (8 to 1, with Glenda Ritz being the 1) to authorize Dan Elsener to spend money from the Board’s budget and work with the Governor’s office to hire the Board’s staff. According to several people, despite the fact that the Superintendent has often come from a different political party than the Governor, this is the first time in Indiana history that money budgeted for the State Board will not be controlled by the Department of Education.

As one observer wrote, “Obviously, a State Board with its own staff using a budget of $3,010,716 each year could become a power center independent of the State Superintendent and the Department of Education. Apparently, the Governor has quietly put this seismic shift into motion.”
Ever since the voters elected Glenda Ritz (by a margin exceeding that of Governor Pence, it might be noted), the administration and the Republicans have worked to overturn the results by reducing the powers of the office.

Like the current Superintendent or not, this is most definitely not the way the system is supposed to work. The message being sent is clear: we’ll respect election results and the democratic process when we win.

When we lose, we’ll play dirty.

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It’s Who You Know

There’s an old saying to the effect that it isn’t what you know, it’s who you know. There’s a lot of truth to that, and it’s why cities are so important.

The other day, I read one of those pious rants from a privileged old white guy–it may have been Charles Koch–about how the minimum wage is bad for poor people because it makes them dependent. It’s easy enough to mock people who see no connection between the government goodies they enjoy–the business subsidies and tax breaks and the like–and government rules that benefit poorer folks–but these lectures betray another aspect of their cluelessness. I’d be willing to bet that Charles Koch and his ilk don’t really know any poor people.

They may have servants who are poor, of course. But that’s a lot different than living in a economically diverse neighborhood, or riding public transportation with an assortment of city dwellers, or having your kids go to school with children from varied backgrounds.

Even in cities, of course, we see increasing economic segregation. But there was a lot of truth to that wonderful old rant The Urban Archipelago —

Look around you, urbanite, at the multiplicity of cultures, ethnicities, and tribes that are smashed together in every urban center (yes, even Seattle): We’re for that. We’re for pluralism of thought, race, and identity.

The real virtue of urban diversity is that it bestows a larger framework for understanding the world and the variety of people who populate it. If your only contact with “poor people” is on television or through the writing of ideologically compatible pundits–if you view “them”only from the comfort and distance of your gated community,or through the window of your air-conditioned Mercedes– it’s easy to make assumptions about their lives and habits.

Many years ago, when my sons were in high school (Tech, in downtown Indianapolis), a girl began calling my middle son every night at dinner time. After the fifth or sixth time, annoyed, I indulged a sexist stereotype and snapped “Tell her to stop calling you, that boys call girls; girls don’t call boys!” To which he replied, “But mom, I can’t call her. Her family doesn’t have a phone.”

I don’t think I’d ever known anyone who didn’t have a telephone. But my sons’ lives and moral imaginations have been immeasurably enlarged because they did.

Stereotyping of all kinds depends on ignorance. That’s true of racial and religious stereotyping, and it’s equally true of economic stereotyping. The virtue of cities is that “smashing together” of real human beings–a smashing that makes it harder (not impossible, but harder) to substitute assumptions about other people for actual knowledge of them.

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How Far It Has Gone….

As Maddowblog has noted,” this has simply never happened before. There is no precedent in American history for Congress approving a massive new public benefit, a president signing it into law, the Supreme Court endorsing the benefit’s legality, and then having an entire political party actively and shamelessly working to sabotage the law.”

The law, of course, is the Affordable Care Act, aka “Obamacare.”

It isn’t only the 39 votes to repeal the ACA–votes for repeal that GOP Congressmen know are entirely symbolic and will die in the Senate.  As several media sources have reported, Republican Congressmen are now refusing to help constituents who call their offices with questions. “We know how to forward a phone call,” said Rep. Jason Chaffetz (R-Utah). He added, “[A]ll we can do is pass them back to the Obama administration. The ball’s in their court. They’re responsible for it.”

Then there are the Governors, like Indiana’s own Mike Pence, who are refusing to participate in Medicaid expansion, even though such refusal costs their state millions of federal dollars it would otherwise receive. (I won’t even dignify the Pence Administration’s recent bald-face lies about projected costs of individual health insurance policies.)

My question is: why?

The GOP has no alternative plan to offer, possibly because the ACA was the GOP’s approach, back when the party was composed of adults focused upon solving real problems. They don’t even pretend to have a different solution to a healthcare crisis that threatened to destroy  the American economy while leaving fifty million Americans uninsured.

They don’t want to solve the  problem. They just want to undo the solution that was cobbled together by that black guy in the White House and ushered through the process by the woman who was briefly Speaker–the solution that was acceptable to the insurance companies and pharmaceutical companies that had to be placated if anything was to be done.

I have real problems with Obamacare as policy, but I recognize that it is infinitely better than nothing. I also recognize that it is the best we could do politically. I am absolutely incapable of understanding what motivates these people who simply want to repeal it, without putting anything in its place. They clearly don’t give a rat’s you-know-what about the people who had no access to healthcare before the ACA. They don’t care about the small businesses that couldn’t compete for good employees because they couldn’t afford to offer healthcare. They don’t care about the fact that 50% of the personal bankruptcies that cost businesses dearly and are a drag on the economy are a result of medical costs incurred by uninsured and underinsured Americans. They don’t care that before the ACA, America was spending 2 1/2 times more than the next most expensive country for a system ranked 37th in the world.

All they seem to care about is beating that guy in the White House. If people have to suffer or die as a consequence, that’s tough. If the economy has to take a hit, so be it. Nothing, evidently, is as important as thwarting Barack Obama.

That’s how far it has gone.

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