It’s really quite a brilliant gambit. After all, it worked for the Southern Povery Law Center when they became the media’s go-to site to find out which groups were “hate groups.” That it was often disingenuously based solely on who didn’t share their dogma didn’t seem to bother the media. The SPLC became the trusted experts, though they were anything but trustworthy.
So now, the American Bar Association, desperate to bolster its membership rolls which are comprised of law students with freebie memberships, lawyers sucked in with a free year who drop out when the bill arrives, and otherwise held captive by progressive academics and lawyers of the left, has come up with its own stroke of genius to return itself to a place of relevance in the legal world.
ABA rolls out new fact check website to help separate legal fact from fiction
Fact check? Like does the sun really rise in the east and set in the west? Is the earth really round? Is a bird in the hand worth two in the bush? That they would try to sneak it in under the guise of “facts” is the first giveaway that it’s pandering to the ignorant, as law is many things, but not fact. And it perpetuates its fallacious premise in its opening salvo.
The late U.S. senator and diplomat Daniel Patrick Moynihan said, “everyone is entitled to his own opinion, but not his own facts.” In today’s fast-moving world, it is often difficult to distinguish between fact and opinion. Through our new ABA Legal Fact Check, the American Bar Association will use case and statutory law and other legal precedents to separate legal fact from fiction.
Seems legit, if it wasn’t for the wildly inapt analogy. For non-lawyers, and especially journalists, it’s hard to make sense of the realm of legal opinion that is within the arguable sphere of opinion and that which is outside, just totally nonsensical views of law. Law changes constantly. The changes are usually nuanced, though there are occasional paradigm shifts, whether Heller or Obergefell, Gideon or Miranda. There are good precedents and overruled precedents. There are quotes that would appear to mean one thing and lengthy opinions that explain why they don’t.
And then there are explanations of law that are so shallow and simplistic that, while not quite wrong, aren’t at all right. Like the ABA’s explanation of “hate speech.”
Recent demonstrations of white supremacists in Charlottesville, Va., have raised questions about whether hateful speech and racist comments are protected by the First Amendment.
The U.S Supreme Court has made it clear that governments may not restrict speech expressing ideas that offend, most recently in a unanimous 8-0 ruling on June 19, 2017, in Matal v. Tam, known as the “Slants” case.
All correct, but hardly adequate. But what about the notorious “fire in a crowded theater” trope that changes everything. They slip that in at the end.
In general, courts have found there is no First Amendment protection to speak fighting words — those words without social value, directed to a specific individual, which would provoke a reasonable member of the group about whom the words are spoken. But experts say merely offensive or bigoted speech does not rise to that level. Determining when individual conduct crosses the “offends” line is a legal question that requires examination on a case-by-case basis.
Wait, what? That’s not right. More importantly, this suggests a completely false analysis, that because it’s on a case-by-case basis, anyone can scream “fighting words” and not be wrong unless and until a court says they’re wrong. Except the ABA’s “facts” are false.
Putting aside the question of whether the vitality of the “fighting words” doctrine is deeply suspect, it requires a call for imminent violence. Say the words and, boom, violence immediately erupts, then and there. It’s not an invitation for the heckler’s veto or a passionate protest march, accompanied by bats and urine-filled balloons some other day.
And then there’s the “merely offensive or bigoted speech.” So when somebody feels that offensive or bigoted speech isn’t “mere,” but especially horrifying, and of course they’re reasonable because isn’t everybody, they get to silence the speaker? Lawyers are used to vague rhetoric; it’s what we go to town on when we argue our causes, but we know the difference* between stretching it to the point of ludicrousness because we’re going to get our butts kicked in court. Feeling that you’re “right” offers little comfort to the client who just lost his case because your argument was nonsense.
Will the ABA get away with this gambit? Maybe. Legal journalists, even the few who are lawyers, lack experience and depth in the law. They want two things when punditing for the unwashed masses: a quick and dirty answer and a source they can point to in support of their words. They use conclusory words like “expert” and “scholar” to leap over the credibility gap of reason and original source. And they know that most of their readers aren’t lawyers, so they won’t challenge the appeal to authority.
The ABA wants to be that authority, both because it’s trying desperately to regain its relevance and because it’s shifted from the mouthpiece for the guild to an ideological movement for social change. Lawyers don’t buy it. Lawyers have fled the ABA in droves because of its move away from law toward non-legal socio-political dogma. But that doesn’t mean the public, and legal journalists, won’t accept its legacy-based credibility.
And if the ABA becomes your “trusted source” for legal fact, even if its doing little more than promoting its own political agenda and bolstering its membership roll, isn’t that good enough? The ABA has been busy issuing press releases and resolutions for or against law and legal practices it loves or hates. If these were facts, there would be no need, but they aren’t facts. The ABA has an agenda to promote, like many others. When they’re “calling for” social justice, it’s obvious they’re advocating. If they can do the same, but pretend they’re the honest brokers of law, then no one will notice they’re just spinning their ideology.
A smart move. Whether it works is up to the rest of us. Whether we want it to work depends on whether we care more about accomplishing their goals than integrity, a virtue in short supply at the ABA. Kinda ironic for a gang that wants to be your trusted source of legal “fact.”
*Or at least we used to. There is a coterie of lawyers who didn’t get the memo that vague rhetoric isn’t an excuse to indulge their deep feelings, and so they spew out facile “legal analysis” that is wrong and indefensible, but comports with their aspirations of what they would like the law to be. Do they know they’re making people stupider? It’s hard to say, but that doesn’t prevent them from trying their best to “normalize” their false legal interpretations in the hope that it will shift public understanding toward their ideology, despite the fact that no court, no judge, has ever said anything of the sort.