It’s not too early into the Trump administration to call it: this is a group that’s got very little regard for the truth. And that’s even by the low standards of political spin – we’ve got plenty of examples, already, of out-and-out gaslighting. Chief among the lying liars in the administration has been White House “Senior Counselor” Kellyanne Conway, who done everything from puff the (anemic) size of Trump’s inauguration crowds to shill for his daughter’s clothing line.
In response, a group of law professors has filed a grievance against Conway seeking professional discipline against her in Washington, D.C., where she is licensed as a lawyer. The complaint relies upon the famously broad language in Rule 8.4(c), which proscribes “conduct involving dishonesty, fraud, deceit or misrepresentation.”
Loathsome as I find Conway’s approach, I am similarly appalled at this grievance. I mean, I could see some wingnut lawyer filing a grievance against Conway, but over a dozen law professors? Who should know better?
While there are many issues with this grievance, I just want to focus on two macro-points, one legal and one practical.
The Legal Objection
Like many of the Rules of Professional Conduct, Rule 8.4(c) appears to be written by people with little understanding of the First Amendment. First there’s the bit about “conduct,” which sort of dodges the question about whether this is dealing with matters purely of speech or only “speech as conduct,” a famously messy area that was dealt with just last week by the 11th Circuit in striking down Florida’s limitation on doctors asking patients about firearms ownership.
More objectionable is the failure to tie this broad prohibition on lying to the actual practice of law. While the outer bounds of the state’s ability to limit speech in the professional realm is uncertain, here are two propositions that clearly lie on opposite sides of that boundary:
- Well within the power of the state to regulate: Requiring that attorneys not lie in the course of representing clients.
- Well outside the power of the state to regulate: Requiring that attorneys not lie, ever.
There is a first amendment right to lie, and we attorneys don’t forfeit it just because we get licensed. This is a straightforward legal principle, and the law profs’ grievance fails on this front right out of the gate.
The Practical Objection
I was going to say “like it or hate it, we all have a right to lie.” But really, if you hate the fact that we have the right to lie, you haven’t given it enough thought. Having the right to lie doesn’t mean we have the license to do so, or that lying should be socially acceptable. It means simply this:
We are not going to let the government be the arbiter of truth.
Many of the law profs who brought the grievance would likely object “but Conway is in an important position of power and influence; she may be working as a lawyer (i.e., an active “representation”), and because of how Big of a Deal this is we need to push it forward.”
But it is for precisely this reason that we shouldn’t push edge cases. We don’t want the government calling balls and strikes in matters of public discussion. That’s a straight path to censorship. The first amendment and freedom of discourse needs a lot of breathing room, as even the implication of regulatory action will cause many to clam up.
No, not Kellyanne Conway, of course (although the social virtues of lie-shaming seem to have set in, as the cable news outlets have tired of her act). But how about everyone else? My practical objection to this grievance is that if it gets any traction, what does that mean for any other lawyer who wants to speak out on matters of public import? Or, closer to home, what if someone wants to start policing the many words – again, outside of any representation – that these law professors no doubt spill publicly on any number of subjects?
Hopefully, the D.C. Bar will do the right thing and dismiss this grievance quickly and decisively.