1st Amendment

The lack of principles that apply across the many categories of First Amendment

analysis, principles that apply to all cases involving human expression, is troubling because the founding fathers seemed to mandate a simple yet consistent treatment of all human expression:

Supreme Court contradictions are not abnormalities in the First Amendment arena. They are the norm. This seems to flow from the apparent swing from deciding cases, not from the standpoint of balancing in favor of inquiry into legislative or regulatory purpose, but pragmatism. Pragmatists believe that the task of establishing such foundations and so validating our beliefs as objective is either impossible or uninteresting, and in either case not worth doing.

The test for knowledge should not be whether it puts us in touch with an ultimate reality (whether scientific, aesthetic, moral, or political), but whether it is useful in helping us to achieve our ends. This pragmatic, “ends justify the means” approach seems to have been the mindset of the Supreme Court for quite some time.

This, in my opinion, has been one of the prime drivers behind our current societal mindset of political correctness.

Political Correctness Infringes on our First Amendment Rights and has become increasingly obvious in our daily lives. Extreme sensitivity to words or conduct that might possibly offend someone that has already taken root on many of our college campuses is rapidly spreading outward to other parts of our society.

For example; the American Bar Association approved a rule that imports the college manias over “inappropriate” speech and “microaggression” into its regulation of professional conduct.

Rule 8.4(g) provides that it is professional misconduct for an attorney to show “discrimination based on 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.” The rule applies to statements an attorney makes as well as any actions that could be interpreted to “manifest bias.”

Attorneys have an obligation to do their utmost to represent their clients and help them win legal disputes, but now they must also watch what they say and do lest they be reported to the A.B.A. for having manifested “bias.”

That sounds noble, but what the rule actually does is to give aggressive lawyers grounds for action against opponents who deviate from politically correct thought and action.

Even if the rule is intended just as a means of virtue signaling – something increasingly common in businesses and professions that want to avoid the wrath of Social Justice Warriors – it will nevertheless have a chilling effect.

Sadly, the ABA has solved the imaginary problem of attorney “bias” by imposing a rule that is going to stifle freedom of speech. That bodes badly for the legal profession as well as the whole country.

The next few posts will take each individual clause of the 1st amendment and analyze what the intent of the Founders was and how we have strayed from that vision.

Next up:Congress shall make no law …

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