King: Has Cancel Culture Come To Texas?

Ed. Note: This is a guest post by Lee Keller King, a civil litigation attorney in a two-person shop in the Houston, Texas area, who practices in business litigation and family law.

Although nothing new to readers of our esteemed host’s blog, Cancel Culture has, until recently, been relatively unknown in Texas. That has changed and in a big way. Cancel Culture has now afflicted the Texas State Bar Association, including an effort to depose our current Bar president, Larry McDougal. The controversy has now reached national note. Can a sitting Bar president be cancelled because of a few comments on social media? This Monday, July 27, we hope to learn the verdict.

Larry is a former police officer, prosecutor and municipal judge who has been ably representing criminal defendants in Fort Bend* and surrounding counties since 1994.  However, despite his yeoman service representing people of all colors, nationalities, genders and sexual orientations, the Mob is coming after him with tar and feathers. Larry’s crime? He deviated from the Narrative and had the temerity of questioning the virtue of Black Lives Matter. He has therefore been labelled a racist and thought criminal (as have any who dare defend him on social media).

The ”crime” of which Larry was first accused was that (1) on one occasion in 2015, he labeled Black Lives Matter as a terrorist organization, based on calls to kill cops (“Pigs in a blanket, fry ‘em like bacon”), and (2) he recently expressed an opinion on social media that a poll worker wearing a Black Lives Matter tee shirt while working the polls constituted the Class C (fine only) misdemeanor of electioneering under the Texas Election Code.**  Since that time, social justice warriors have combed social media for any other comments that might offend, and thrown them into the mix.  Even an old repost of an “objectionable” meme is now considered grist for the mill.***

The outrage of the Woke has been deafening!  One post on a private lawyers-only Facebook page for Texas attorneys received more than 750 comments, and the number of comments in various forums is in the thousands. One well respected minority attorney has gone so far as to state that, “With his remarks, Mr. McDougal has clearly sided with the confederacy.”

And the furor has not stopped with the attempt to run Larry McDougal out of town on a rail.  Some attorneys on the far-left side of the aisle have created a spreadsheet of “racist” attorneys, who had the effrontery to support Larry, so that the woke won’t have to sully themselves by accidentally referring cases to such lowlifes.

And on one forum (again, a Facebook page limited to Texas attorneys, whom one would hope understand the concepts of freedom of speech and due process), attorneys are claiming that not only is Larry McDougal “anti black,” so are those who defend him. Even black attorneys who support Larry are being called “anti black.”

And now the Mob is pushing for adoption of ABA Rule 8.4(g), which would make an attorney subject to a grievance if that attorney engaged “in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of 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.”

And the Bar leadership has listened. A special Zoom meeting of the State Bar Board of Directors is scheduled for Monday, July 27th at 9:00 a.m., to discuss, among other things, possible action regarding online commentary made by State Bar of Texas President Larry McDougal and other officers and directors. As of Friday, more than 50 people have signed up to speak at this meeting.

Conservative and libertarian attorneys in Texas are frightened: Will they be next?  Many of us were under the false impression that Cancel Culture wouldn’t come to Texas, much less the Texas Bar. After all, we are all attorneys together and we proved our minimal intelligence by graduating law school and passing the bar exam, right?  Perhaps we were wrong. I suppose we shall see on Monday.

*Fort Bend County is southwest of Houston, Texas and one of the fastest growing counties in the US.

** Texas law prohibits “the posting, use, or distribution of political signs or literature” “within 100 feet of an outside door through which a voter may enter the building in which a polling place is located.”  Texas Election Code, Sec. 61.003.

*** Back in the day when I still posted on the Twitters, I had a disclaimer that “retweeting does not necessarily show agreement with the original post.” I may need to add that to Facebook.

32 thoughts on “King: Has Cancel Culture Come To Texas?

  1. Sol Wisenberg

    Texas has an integrated bar. If he is removed by the Directors because of his comments, doesn’t this constitute state action and a clear constitutional violation?

    1. SHG Post author

      I wasn’t aware that Texas had an integrated bar. You seem pretty knowledgeable about the Texas bar, Sol. If only you knew a lawyer who could offer a thoughtful opinion on whether this was a clear constitutional violation and answer your interesting question.

      1. Sol Wisenberg

        This is taking me away from completing the Michael Flynn-FISA Abuse Timeline.

        The Texas Bar is a Mandatory/Integrated Bar. The Texas Bar controls licensing of lawyers in Texas. In order to practice law in Texas I must be a member of the Bar. The Fifth Circuit has made it crystal clear that the Constitution applies to a State Bar’s mandates. In 2011, the Fifth Circuit invalidated various advertising restrictions imposed on lawyers by the Louisiana State Bar. These rules were invalidated on First Amendment grounds.

        Clearly, the State Bar of Texas could not constitutionally revoke my law license or discipline me for any social/political opinions I might express outside of the courtroom. Does it matter that McDougal would not have his license revoked if he is merely stripped of his Presidency? I think not. He is still being penalized by a State Agency for engaging in free expression. The right-privilege distinction in First Amendment jurisprudence was for the most part gutted years ago.

        I say this without having conducted any significant recent research in this particular area of free speech law and or any research at all into the intricacies of the State Bar of Texas’s procedures.

        I believe that even holding a meeting to discuss whether to remove McDougal under these circumstances chills free speech. The Bar could impose mandatory First Amendment re-education of the lawyers calling for McDougal’s forced ouster, but that would also violate the First Amendment.

    2. Lee Keller King

      Sol, there is currently a lawsuit pending in the Fifth US Circuit Court of Appeals alleging that use of State Bar dues for political speech violates the constitutional rights of the plaintiff attorneys. Many Texas Bar members believe that, like many other state bar associations and the American Bar Association, the Texas Bar has drifted too far to the left and has become to overtly political. Larry’s troubles seem to support that view.

      https://www.law.com/texaslawyer/2020/06/01/bad-news-for-lawyers-suing-over-bar-dues-court-rules-in-favor-of-texas-bar/

      (See briefs at https://www.texasbar.com/Content/NavigationMenu/McDonald_et_al_v_Longley_et_al1/default.htm, if Scott allows).

      1. Sol Wisenberg

        Thanks Lee. I tuned in yesterday but could only stomach one young speaker, who informed McDougal that he did not get to decide what is and isn’t offensive. That’s up to the offended listener. We once called this the heckler’s veto.

        1. SHG Post author

          That’s one of the rules of critical theory, that the “oppressor’s” right to an opinion is subject to the approval of the oppressed. The archaic concept of the heckler’s veto is merely another vestige of white supremacy, like facts, reason and objectivity.

  2. B. McLeod

    There have already been some incidents in Texas, such as an assistant district attorney’s forced resignation for sharing on her personal social media a post that referenced Nazi destruction of statutes. A public defender ratted her out for this allegedly “racist” conduct, and, even without any bullshit rule to point to, the offender was drummed out of public service for “racism.” Where the mindlessness is already present, the mindless rule can be expected to follow.

    1. B. McLeod

      “Statues.” They did destroy statutes too, but that was not the point of the post she had shared.

    2. Lee Keller King

      B. McLeod, the DA who fired the Harris County prosecutor was possibly on firmer ground as elected District Attorneys have traditionally had great discretion in hiring and firing decisions in Texas. In Larry McDougal’s case, there is no precedent for the response to his statements.

  3. John Barleycorn

    Guild glue has always been weird shit and for whatever reason huffing the vapors of that stuff never gets one to a happy place.

    Why is that? What have you officers of the court done to yourselves?!

    BTW, what the heck is a “conservative” attorney and do all “libertarian” attorneys wear cowboy hats or just the ones who go to church?

    1. Lee Keller King

      Libertarian attorneys wear whatever they damn well please. 😁

      Larry is a cowboy and likes to wear a cowboy hat. Me? Not so much. But I do support his first amendment right to wear a cowboy hat as an expression of his cultural identity. (And a cowboy criminal defense attorney apparently sells well in Fort bend County). 🤭

      1. SHG Post author

        After some imbibing at a Mexican restaurant in Houston, I learned that Robb Fickman’s Stetson fit me perfectly. Do you think that bastard said, “hey, Yankee, take my hat”? No. No he did not.

    2. Lee Keller King

      Seriously, John (now that I’ve had my first cup of coffee this morning) Fort Bend is a transitional county, with farms and ranches right next to new subdivisions and high-tech businesses. A still-sizable portion of the county is still rural and “red.” Note also, that I’ve seen more than one “cowboy” here whose folks originated in central or eastern Asia.

      There are, after all, only two requirements to be a Texan: (1) move to Texas, and (2) self-identify as a Texan. (And the first requirement can probably be waived). It’s a cultural thing, y’all. 🙂

      1. SHG Post author

        No one has ever taken JB this seriously before. I have no clue what this level of validation will do to his head.

        1. John Barleycorn

          Bless your heart esteemed one, and don’t you forget to pick yourself up a few Larry McMurtry novels, at the used bookstore, next time you are out looking for a new cowboy hat.

          Sure’nuff and thanks for info LKK. That ought to come in handy one of these days.

          I smell what you are stepping in, so best of luck to you while finessing that there guild of yours….

          It would be a terrible thing if they come for the cowboy hats next, so you best get ‘er done.

    1. B. McLeod

      He sure as Hell could sing and play. That’s a 12-stringer there, before John Denver was even born.

    1. John Barleycorn

      Dang, do tune in to this SJ back page readers!!!

      10:30 break is on….

      Madder than a wet hen but where the heck are the cowboy hats, LKK?

      For that matter these folks are trained to articulate! Just WTF has happened to the famous Texas drawl, it is nearly non-existent thus far, for that matter is the twang thing dead, or what?!!

      Ya’ll Texas attorneys might just have yourself more problems than this little dust storm is rilling up…

        1. SHG Post author

          Leave JB alone already. I’ve had to trash 193 comments by him already this morning, all because you’re the first person to ever reply to him. Stop encouraging him.

            1. John Barleycorn

              My live meeting commentary was not appreciated, having all this fun goes to my head but those guild vapors are so nasty I cant help myself.

              BTW, what kind of lawyer’s organization only takes a half an hour for lunch?

              And where were you LKK did I miss you this morning or something…

              Anyway thanks for the link the meeting has been fascinating. Lawyers what are you gonna do with ’em?

            2. John Barleycorn

              Larry is not wearing his cowboy hat…

              WTF!!!???

              Best part of the meeting thus far is the amount of time it took for the lawyers to get their heads around the “legal advice” they received in closed session.

              Motions are a flying….. but legal advice is pending on procedural legality clarity… Too fun!

              Lawyers what ya gonna do with ‘um…

    2. ETB

      Lee, thank you for this post. I was having trouble ascertaining the nature of the crimes after first hearing about them from the HBA, which sent out a vague missive purporting to speak for all the membership in advocating for Mr. McDougal’s ouster (or, to quote, “advocate for appropriate sanctions.”).

      1. Lee Keller King

        You are most welcome. I only hope that I was able to live up to the task at hand.

        Right now, I’m listening to the third hour of the State Bar BOD meeting on Facebook. Whew!

        Lee

        1. John Lynch

          I listened to most of the meeting as well (being an SBOT member since 1966). It wasn’t very different from what might be expected in an octagon match between “blue” and “red” combatants. So being an IP lawyer, I went to the U.S. Patent and Trademark Office website to see if there were any attempts to capitalize commercially on “BLACK LIVES MATTER” as a trademark. There are over forty trademark applications to use BLM or something very close to it for everything from T-shirts to educational materials, a number by the prominent BLM organization. Take care when criticizing those products.

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