Volokh conspiracy lawyer scrgruppen
Yesterday’s decision by California State District Court Judge Dennis Saab In the matter of Brown The California State Bar’s Office of Chief Trial Counsel (OCTC) resulted in accusing an attorney of, among other things, engaging in “moral turpitude” and violating state and federal law “by directing others to commit acts of violence.” Below is an excerpt from the (long) opinion (for more factual details and more information on the other counts, see the full opinion):
OCTC alleges that between May 29 and May 31, 2020, the defendant committed acts of dishonor by publishing certain Tweets “that directed others[s] To commit acts of violence, including calling for shootings, summary executions, and burning the homes of members of the public.” [OCTC] The following tweets allegedly constitute misconduct: (a)”can’t wait. At least a reason to shoot them(Tweet No. 1) (B)They should be shot“(Tweet No. 5); (c)”Yes and they should shoot the thieves“(Tweet No. 14) and”They should be shot. If it were your concern, I would pull the trigger(Tweet No. 15) (D)Shooting demonstrators“(Tweet No. 7); (E)”Let’s burn your house down“(Tweet No. 13); and (and)”Oh my goodness Scarborough, you have reached a new level of stupidity. Let’s go burn your house while you’re in it(Tweet No. 10).
because [this count] Defendant is charged with misconduct Based solely on the content of her speech, the First Amendment protections are involved.
Brandenburg It is the primary issue that addresses the protections afforded by the First Amendment as applied to speech that advocates violence or unlawful action. in Brandenburg, a Ku Klux Klan leader told those gathered at a rally, which was covered by the media and shown on television, “If our President, our Congress, and our Supreme Court continue to oppress the white Caucasian race, it is possible that some retaliation must be taken.” ” The leader also announced a march towards Congress. As a result, the leader was charged with violating Ohio’s criminal syndicalism law, which prohibits (1) advocacy of crime, violence, or illegal methods of terrorism as a means of achieving political reform; and (2) gatherings for the purpose of teaching criminal syndicalism. In finding that Ohio’s law violated the First Amendment, the court distinguished between mere advocacy (protected speech) and incitement to an imminent unlawful act (not protected speech)—the latter involving an intent to provoke unlawful acts and circumstances that might suggest that such action is imminent and likely. It happens.
OCTC confirms this Brandenburg It does not apply to the defendant’s words because he is a lawyer. However, the defendant was not speaking in her capacity as an advocate and the court received no evidence that her speech was prejudicial to the administration of justice or related to the practice of law. Therefore, the court sees no basis for granting such diminished protection as “attorney’s speech” and the OCTC must prove that defendant’s speech is otherwise unprotected. Under the test he put Brandenburg, In order to prove that a defendant’s speech crossed the line from mere advocacy to unlawful incitement, the OCTC must prove the following: (1) the defendant’s culpable state of mind, i.e., that she had specific intent to incite imminent unlawful action; and (2) the likelihood of such an imminent unlawful action occurring, i.e. that the hearer was present and was able to understand and follow the defendant’s intent.
Although the OCTC challenges the applicability Brandenburg To this disciplinary action lawyer, he confirms that the elements Brandenburg The test has been met. The OCTC says a respondent’s intent is determined by looking at the plain language of her tweets, the social and political context in which they were posted, and the number of her tweets. OCTC also argues that the imminence and probability requirements were set because the tweets were posted during ongoing protests, a volatile environment fueled by anger over excessive use of force by police that was escalating to a tipping point, making it likely that someone would respond to calls for violence. The court disagrees.
Initially, the court noted that the defendant’s tweets cannot be understood in isolation from their context because it is context that gives meaning to our words and actions. Furthermore, the respondent’s individual perception of the events taking place around her is particularly important for understanding her motivations and intent behind the statements in her tweets.
It is noteworthy that more than two hours before the defendant posted her first tweet, a small riot broke out in parts of Los Angeles. However, rather than looking at the specific context of each respondent’s tweets, OCTC focuses on the generalized global context over the relevant time frame, providing an incomplete and selective picture of the circumstances that gave rise to the respondent’s tweets.
For example, the specific context of Tweet #1, which was posted at 7:53 p.m., is not fully known because only tweets from two of the three individuals to whom the defendant was responding were provided. From the information provided, it appears that the defendant was merely reacting to someone else’s post about current events in Washington, D.C. Further, “can’t wait. Finally a reason to shoot them“It is an expression of provocative opinion, not a directive. Even if it is considered a directive, it is not clear to whom the tweet was originally directed, nor whether anyone in a position to act in this way would have seen the tweet.”
The same applies to tweet #5 (“They should be shot“”), Tweet No. 10 (“God, Scarborough… let’s go burn your house down with you in it“”), Tweet No. 13 (“Let’s burn your house down“”), Tweet No. 14 (“Yes and they should shoot the thieves“), and Tweet No. 15 (“They should be shot… If it were up to you, you would pull the trigger“). All of these tweets were posted during riots in and around Los Angeles, and are not specific calls to action directed at anyone in particular. Tweets #5, 10, and 13 were responses to other individuals, but the context is crucial because the statements The Defendant, i.e. the tweets that precipitated this response from the Defendant, were not introduced into evidence, and Tweets Nos. 14 and 15, which were phrased as a comment on something someone else said, appear to lack necessary context.
The only tweet that could be considered a directive is Tweet #7 (“Shoot the Protesters”), which was apparently posted in response to an earlier tweet warning protesters at the intersection of Fairfax Avenue and La Cienega Avenue. . That the police were on their way. However, it has not been confirmed to whom the defendant’s tweet was directed nor that any listener was at or near the intersection of Fairfax Ave. and La Cienega Blvd. At the time Tweet No. 7 was posted. It is noteworthy that Tweet No. 7 was posted at 6:17 PM on May 30, 2020, while widespread rioting was underway in parts of the city, including looting and violence near the defendant. On it at The Grove.
In evaluating whether the OCTC has established the required evidence of defendant’s intent, this court must resolve all reasonable doubts about guilt in favor of the defendant and must choose the inference that leads to acquittal if equally reasonable inferences can be drawn from the facts. Here, the Defendant provided this Court with a credible and reasonable explanation for the meaning behind her words, namely, that she posted the above Tweets as an expression of her anger, fear, and frustration at the violence occurring around her and in disagreement with some of the sentiments she saw others expressing on Twitter. The respondent did not use any feature on Twitter to optimize her tweets at scale or to ensure they could be seen by people who could and would act as she suggested.
When she learned that her tweets upset people, she immediately expressed regret and remorse for her very poor choice of words. In light of the totality of the circumstances surrounding Defendant’s tweets, the court found that there was no clear and convincing evidence that Defendant intended his words to incite imminent unlawful action. Instead, the evidence tends to show that defendant’s speech was an ill-advised and negligent expression of her thoughts and emotions in response to her perceived experience.
Even if defendant’s intent had been proven, the OCTC failed to prove that the circumstances of defendant’s speech were likely to incite imminent unlawful action. It was not clear who the intended audience for the Tweets was nor that anyone in that audience was able to understand the direction sent by the Tweets and was in a position to act on that direction. {in Hess v. Indiana (1973) The court held that because of Hess’s statement “[w]”We’ll take the f—ing street later” or “[w]“We will take to the street again” at an anti-war demonstration was not directed at anyone, could not be incitement and the expression was protected. [Expurgation in State Bar opinion. -EV]} The respondent did not specify where or when the action called occurred. {The tweets did not direct people to shoot protesters in any particular location and did not reveal Scarborough’s home address and/or any address for that matter.}
No witness who saw the tweets at or even near the time those tweets were posted has been presented. None of the five protesters who testified at trial saw the defendant’s tweets during the protest. Twitter icons below the respondent’s tweets showed that only one of her tweets received any comments (Tweet #7) – none of which were provided as evidence – and only one of the respondent’s tweets received any likes (Tweet #14). As for the other tweets, Twitter icons were either missing or did not contain any evidence of comments, retweets, likes, or direct messages. In short, assuming it had been shown that the defendant intended such action—shooting protesters and burning the homes of Scarborough and/or other people—there was no clear and convincing evidence to show that such action was imminent and likely to occur.
The Court recognizes that the State Bar undoubtedly has a strong interest in protecting the public, maintaining confidence in the legal profession, and maintaining the highest professional standards for attorneys licensed in this State. However, while the state bar may have a vested interest in regulating lawyers behaviorHowever, this does not give the Bar Association absolute authority to regulate lawyers in their daily lives to censor unfavorable speech that it considers “reprehensible, unethical and outside the bounds of good ethical behavior expected of lawyers.” The OCTC’s concern about the potential negative impact on the public perception of lawyers and confidence in the fair administration of justice is purely speculative and based on the personal impact on potential listeners. Therefore, this is not a convincing justification for violating the defendant’s freedom of expression.
Although the court does not condone defendant’s tweets, which are unbecoming of a lawyer, the OCTC has not shown that defendant had the intent to incite an imminent unlawful action, that her tweets were likely to be heard by an audience who understood her intent, nor that it was likely that Such imminent illegal action occurs as a result of her tweets. Therefore, defendant’s pure speech, protected by the First Amendment, cannot be the sole basis for professional discipline….
Brown is represented by attorneys Anthony Radogna of the Law Offices of Anthony Radogna, Christa L. Baughman and Jesse D. Franklin Murdock of Dhillon Law Group Inc., and Christopher Brizzolara.
